40 FLRA 1112
40 FLRA NO. 99
Dept. of the Navy, Philadelphia Naval Shipyard, Philadelphia,
Pennsylvania and Philadelphia Metal Trades Council, Local 93 (Brent,
Arbitrator), Case No. 0-AR-2079 (Decided May 30, 1991)
7122(a)
ARBITRATION EXCEPTION
ATTORNEY FEES
BACK PAY ACT
In his initial award, the Arbitrator reduced the grievant's
suspension from 5 days to 2 days. In a supplemental award, the
Arbitrator awarded the Union attorney fees in the amount of $5,350.50.
Noting that it had repeatedly held that an award of attorney fees under
the Back Pay Act requires a fully articulated, reasoned decision setting
forth the specific findings supporting the determination on each
pertinent statutory requirement, the Authority found that in the instant
case the Arbitrator awarded attorney fees without the proper support.
Accordingly, the Authority found the award contrary to the Back Pay Act
and set it aside.
Case No. 0-AR-2079
U.S. DEPARTMENT OF THE NAVY PHILADELPHIA NAVAL SHIPYARD PHILADELPHIA,
PENNSYLVANIA
(Agency)
PHILADELPHIA METAL TRADES COUNCIL LOCAL 93
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award of
Arbitrator Daniel F. Brent 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.
In his initial award, the Arbitrator reduced the grievant's
suspension from 5 days to 2 days. In a supplemental award, the
Arbitrator awarded the Union attorney fees in the amount of $5,350.50.
We conclude that the award of attorney fees is contrary to the Back
Pay Act, and we will set the award aside.
The grievant injured his knee while alighting from a scaffold during
the refurbishing of a ship. The Agency suspended him for 5 days
claiming that his injury was caused by his negligence. The grievant
filed a grievance over the suspension. The grievance was not resolved
and was submitted to arbitration.
The Arbitrator determined that the Agency improperly suspended the
grievant for 5 days. However, the Arbitrator found that the grievant
had contributed to his injury. Accordingly, as his initial award, the
Arbitrator reduced the suspension from 5 days to 2 days and ordered that
the grievant be made whole for all lost wages attributable to the
mitigation of the suspension.
Thereafter, the Union submitted a motion for attorney fees to the
Arbitrator. "(U)pon due consideration of the applicable statutory
criteria for the granting of attorney's fees," the Arbitrator in a
supplemental award ordered the payment by the Agency of attorney fees to
the Union in the amount of $5,350.50. Supplemental award at 1.
A. The Agency's Exception
The Agency contends that the award of attorney fees is contrary to
the Back Pay Act, 5 U.S.C. Section 5596. The Agency notes that the
Authority has held that arbitrators must provide a fully articulated,
reasoned decision setting forth the specific findings supporting the
determination on each pertinent statutory requirement, including the
basis upon which the reasonableness of the amount was determined when
fees are awarded. The Agency further notes that the Authority has held
that awards granting attorney fees without the proper support will be
set aside or modified, as appropriate. The Agency argues that, in this
case, the Arbitrator summarily awarded fees without any discussion or
rationale and that, consequently, the award is deficient and must be set
aside.
B. The Union's Opposition
The Union agrees that the Arbitrator awarded fees without any
rationale to support the award. However, the Union argues that the
award should not be set aside unless it can be shown that the Union was
the cause for the Arbitrator's failure to properly support the award.
The Union claims that, instead of being set aside, the award should be
remanded in accordance with the Authority's decision in National
Association of Government Employees, Local R4-106 and Department of the
Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159 (1988) Langley
Air Force Base).
We have repeatedly held that an award of attorney fees under the Back
Pay Act requires a fully articulated, reasoned decision setting forth
the specific findings supporting the determination on each pertinent
statutory requirement. For example, U.S. Department of the Navy, Naval
Aviation Depot, Norfolk, Virginia and National Association of Government
Employees, Local R4-83, 40 FLRA 154, 158 (1991) (Naval Aviation Depot);
U.S. Department of the Army, Army Transportation Center, Fort Eustis,
Virginia and National Association of Government Employees, Local R4-6,
38 FLRA 186, 191 (1990) (Fort Eustis), request for clarification denied,
40 FLRA 84 (1991). Moreover, we have further held that an award of
attorney fees without the proper support will be found deficient and the
provision for attorney fees will be struck. We will not remand the
issue of attorney fees to the parties for further proceedings. Naval
Aviation Depot, 40 FLRA at 158; Fort Eustis, 38 FLRA at 191; Denial of
Request for Clarification, 40 FLRA at 87.
In this case, the Arbitrator awarded attorney fees without the proper
support. Accordingly, we find that the award of fees is contrary to the
Back Pay Act, and we will set the award aside.
We reject the contention of the Union that the award cannot be found
deficient because the Union was not at fault in the Arbitrator's failure
to properly support his award. To be sure, we have repeatedly indicated
that it is in the best interests of the parties to assure that their
arbitrators are advised of pertinent statutory requirements in rendering
awards and that the parties bear some responsibility for making those
requirements known to their arbitrators. U.S. Department of the Army,
Army Transportation Center, Fort Eustis, Virginia and National
Association of Government Employees, Local R4-6, 40 FLRA No. 28, slip
op. at 8 (1991); Naval Aviation Depot, 40 FLRA at 158-59.
Nevertheless, we have specifically held that, when arbitrators fail to
provide a fully articulated decision, whether or not they have been
informed of the requirements, we will find the award deficient, and we
will set the award aside. Naval Aviation Depot, 40 FLRA at 159.
We further reject the Union's reliance on Langley Air Force Base.
Langley Air Force Base did not involve an award of attorney fees without
the proper support. In Langley Air Force Base, the arbitrator denied
the union's request for an award of attorney fees, and the Authority
found that neither basis on which the arbitrator denied the request
constituted a proper basis on which a request for attorney fees could be
denied. Accordingly, the Authority found that the award was deficient
and remanded the matter to the parties to request that the arbitrator
appropriately consider the union's request for fees. Contrary to the
Union's claim that Langley Air Force Base is controlling, the decision
is inapposite and provides no basis for remanding this matter rather
than setting aside the award.
The Arbitrator's award of attorney fees is set aside.
40 FLRA 1106
40 FLRA NO. 98
Naval Satellite Operations Center, Point Mugu, California and NAGE,
Local R12-33, Case No. 8-CA-10080 (Decided May 30, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees represented by the
Union.
Case No. 8-CA-10080
NAVAL SATELLITE OPERATIONS CENTER POINT MUGU, CALIFORNIA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R12-33, SEIU/
AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The Respondent and the General Counsel filed
briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. By memorandum dated November 2, 1990, the Union requested
the names and home addresses of the unit employees it represents. By
memorandum dated November 15, 1990, and at all times thereafter, the
Respondent has refused to provide the Union with the home addresses it
requested.
A. The Respondent
The Respondent contends that the disclosure of employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 552a, and
the Freedom of Information Act, 5 U.S.C. Section 552. The Respondent
argues, in this regard, that the requested information "has not yet been
established to be necessary," within the meaning of section 7114( b)(4)
of the Statute. Respondent's Brief at 1. The Respondent also asserts
that the Authority should apply the reasoning of the court in FLRA v.
Department of the Treasury, Financial Management Service, 884 F.2d 1446
(D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990), to find that the
Respondent was not required to supply the Union with the requested
information.
The Respondent asserts that the disclosure of the requested
information to the Union "is not a 'permitted routine use' of that
information under both the agency and (Office of Personnel Management
(OPM)) regulations . . . ." Respondent's Brief at 1. The Respondent
also asserts, in this regard, that the "system of records that will be
used to supply the union with the requested information is a Navy system
. . . not an OPM system and the Navy has consistently taken the position
that its record systems do not permit the release of home addressee
records . . . under the circumstances present in this case." Id.
The Respondent incorporated in, and attached to, its position before
the Authority a brief filed by the U.S. Department of Justice in the U.
S. Court of Appeals for the First Circuit in U.S. Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515
(1990) (Portsmouth Naval Shipyard), application for enforcement filed
sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). In that
brief, the Department of Justice argues that (1) employee home addresses
may not be disclosed from official personnel files pursuant to the
routine use notice published by OPM, and (2) the OPM routine use notice
does not apply to "the Department of the Navy's payroll system of
records, which would probably be the most accurate source of employees'
current home addresses." Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788
(1986) (Farmers Home), and Portsmouth Naval Shipyard are dispositive of
the issues in this case. The General Counsel asserts that, consistent
with these decisions, the Respondent's admitted failure to furnish the
Union with the requested information violates section 7116(a)(1), (5),
and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonable available, and does not constitute advice, guidance, or
counsel provided to management officials or supervisors relating to
collective bargaining, within the meaning of section 7114(b)(4) of the
Statute. Accordingly, based on the Authority's decision in Portsmouth
Naval Shipyard, we conclude that the Respondent violated section 7116(
a)(1), (5), and (8) of the Statute by failing to furnish the Union with
the names and home addresses of unit employees represented by the Union.
We note, in this regard, the Respondent's argument that the system of
records that will be used to supply the requested information is a "Navy
system of records not an OPM system . . . ." Respondent's Brief at 1.
The Respondent does not specify the system of records to which it
refers. Read in light of the Department of Justice brief attached to,
and incorporated in, the Respondent's brief, however, we construe the
Respondent's argument to be that the requested information would be
supplied from the Respondent's payroll records because official
personnel files, which are subject to the OPM routine use notice, are
not the most accurate source of current home addresses. See also
Stipulation at 2-3, para. 7(b) (parties stipulated that the requested
information is reasonably available in the Respondent's "personnel and
payroll files(.)").
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice. See Naval Resale
Activity, Naval Station, Long Beach, California and National Association
of Government Employees, Local R12-173, AFL-CIO/SEIU, 40 FLRA No. 36
(1991), slip op. at 4, application for enforcement filed sub nom. FLRA
v. Naval Resale Activity, Naval Station, Long Beach, California, No.
91-70277 (9th Cir. April 25, 1991).
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Satellite Operations Center, Point Mugu, California,
shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R12-33, SEIU/AFL-CIO, the exclusive
representative of certain of its employee, the names and home addresses
of all employees in the bargaining unit it represents.
(b) 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) Furnish the National Association of Government Employees, Local
R12-33, SEIU/AFL-CIO, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees, Local
R12-33, SEIU/AFL-CIO, 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 Commanding Officer of
the Naval Satellite Operations Center and shall be posted in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R12-33, SEIU/AFL-CIO, the
exclusive representative of certain of our employees, the names and home
addresses of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the National Association of Government Employees,
Local R12-33, SEIU/AFL-CIO, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
40 FLRA 1099
40 FLRA NO. 97
Dept. of Defense, Army and Air Force Exchange Service, Dallas, Texas
and NFFE, Local 977 (Anderson, Arbitrator), Case No. 0-AR-1979 (Decided
May 30, 1991)
7122(a)
ARBITRATION EXCEPTION
AGENCY REGULATIONS
BACK PAY ACT
BACKPAY
OVERTIME
In the award on the merits, the Arbitrator ruled that the Agency had
violated the agreement and, as a result, the grievant suffered a loss of
overtime pay. The Arbitrator retained jurisdiction for 60 days to give
the parties an opportunity to reach a settlement agreement on the
appropriate remedy. When they were unable to do so, the Arbitrator
ordered that the grievant be paid backpay for lost overtime in the
amount of $7,200 and backpay for lost commission wages in the amount of
$7,500.
The Authority found no merit to the Agency's argument that the award
is contrary to an agency regulation because the award is not supported
by the evidence in the record. The Authority also found no merit in the
contention that the award is contrary to the Back Pay Act, finding that
the Arbitrator made the required findings for an award of backpay. The
Authority rejected the contention that the grievant was not entitled to
backpay because the breach of the agreement concerned a duty owed to the
Union.
Case No. 0-AR-1979
U.S. DEPARTMENT OF DEFENSE ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS
(Agency)
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 977
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to awards of
Arbitrator Donald A. Anderson 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.
In the award on the merits (initial award), the Arbitrator ruled that
the Agency had violated the parties' collective bargaining agreement
and, as a result, the grievant suffered a loss of overtime pay. The
Arbitrator retained jurisdiction for 60 days to give the parties an
opportunity to reach a settlement agreement on the appropriate remedy.
When the parties were unable to agree on a remedy, the Arbitrator
accepted briefs from the parties and issued an award providing a remedy
for the violation (remedy award). As the remedy, the Arbitrator ordered
that the grievant be paid backpay for lost overtime in the amount of
$7,200 and backpay for lost commission wages in the amount of $7,560.
The Agency contends that the initial and remedy awards are deficient
because they are contrary to regulation and because they are contrary to
the Back Pay Act, 5 U.S.C. Section 5596. For the following reasons, we
deny the Agency's exceptions.
The grievant is an automotive worker (mechanic) who has been employed
at the George Air Force Base (Activity) service station since 1981.
Mechanics are paid a combination of hourly rate and commission wages and
receive overtime pay for hours worked in excess of 40 hours per week or
8 hours per day. In 1983, the Activity eliminated the position of auto
worker supervisor and the grievant subsequently was called upon to
perform certain supervisory duties in addition to his regular duties.
In 1988, the Union filed a grievance on behalf of the grievant. The
grievance alleged that the Activity violated the parties' collective
bargaining agreement by failing to notify the Union of the change in
working conditions caused elimination of the supervisor position and
also alleged that the grievant lost overtime wages as the result of
assuming the supervisory duties. The Union maintained that the Activity
failed to properly document work hours and overtime for the grievant and
other employees.
The grievance was submitted to arbitration. The Arbitrator framed
the following issues:
1. Did the Activity violate . . . the parties(') Collective
Bargaining Agreement when it failed to notify the Union that it
had decided to terminate the Auto Worker Supervisor in 1983?
2. Did the Activity violate . . . the parties(') Collective
Bargaining Agreement when it did not notify the Union of a
proposed change affecting Grievant's conditions of employment
relative to the termination of the Auto Worker Supervisor position
in 1983?
3. Was Grievant's claim of a class action case in this
arbitration valid?
4. Was Grievant's claim of improper overtime payment to him by
the Activity valid?
5. If the answer to (any of these issues is) affirmative, what
is the appropriate remedy?
Initial Award at 2.
The Arbitrator heard testimony concerning the duties performed by the
grievant and the recording of work hours and overtime at the service
station. The Arbitrator stated that "the preponderance of the evidence
compelled (him) to finally conclude that (the) Grievant's mechanic
duties were modified after the termination of the automotive
supervisor." Id. at 11. He found that the change in the grievant's
duties affected the grievant's income and therefore affected his
conditions of employment.
The Arbitrator concluded that the Activity did not violate the
collective bargaining agreement by failing to notify the Union of the
termination of the automotive worker supervisor position, but that the
Activity did violate the agreement by failing to notify the Union of the
grievant's "changed employment conditions in the years 1983 to 1988,
relative to the termination of the Automotive Worker Supervisor
position." Id. at 14. The Arbitrator also found that the grievance was
an individual one, not a class action grievance.
As his initial award, the Arbitrator found that the grievant "was
denied certain income for overtime worked in the years 1983 to 1988."
Id. The Arbitrator stated that the evidence was insufficient for him to
provide a remedy and allowed the parties 60 days in which to reach an
agreement on an appropriate remedy. He retained jurisdiction over the
remedy issue in the event the parties were unable to reach agreement.
The parties were unable to reach a settlement agreement and returned
to the Arbitrator in January 1990 for a decision on the remedy. The
Union contended that the Arbitrator had authority under the Back Pay Act
to award the grievant backpay for the lost overtime pay. The Agency
argued that there was no basis for an award of backpay because there
were insufficient records of the times the grievant had worked overtime
and also argued that the grievant was responsible for maintaining such
records.
The Arbitrator noted that the Agency has not directed the mechanics
to maintain records of time worked and he found that the Agency was
responsible for maintaining those records. He observed, however, that
if the grievant had maintained records of overtime worked, "there would
be no need for this report." Remedy Award at 3. The Arbitrator also
found that the Agency was responsible for allowing the situation of
nonpayment of overtime to the grievant to occur and ruled that "there
was but minimal evidence in this case to show that the employer should
not be held responsible for the circumstances leading to this dispute."
Id.
The Arbitrator found that all the requirements of the Back Pay Act
had been met for an award of backpay to the grievant and concluded that
the grievant would have received overtime pay if there had been no
unjustified or unwarranted personnel action by the Agency. The
Arbitrator noted that the Agency "stipulated to the fact and management
personnel testified that Grievant had in fact worked overtime from
August 1, 1983, and (sic) August 1, 1987, and was not compensated via
overtime pay." Id. at 4. The Arbitrator noted further that "other
witnesses also testified that they had observed Grievant in such
overtime situations on a continuing though perhaps not regular basis."
Id.
In determining the amount of backpay to be awarded to the grievant,
the Arbitrator stated that he was "compelled to accept" the records of
overtime worked presented by the Union. Id. However, the Arbitrator
stated that "(b)ased on the Grievant's something less than cooperative
attitude in apparently not always signing the overtime records, his
request for overtime pay is reduced one half." Id. The Arbitrator
awarded the grievant $7,200 in overtime for the years 1983-1987 and also
awarded him $7,560 in lost commissions.
A. The Agency
The Agency contends that the Arbitrator's initial and remedy awards
are contrary to a joint Army/Air Force regulation, AR 60-21/AFR 147-15,
paragraph 2-22, which provides that overtime will be paid "for work
performed in excess of 8 hours a day or 40 hours during an
administrative workweek." Exceptions at 4. The Agency maintains that
there is no evidence in the record to show that the grievant worked
overtime and argues that the testimony of witnesses that the grievant
worked overtime was based on the witnesses' observations that the
grievant had worked late. The Agency denies that any witnesses who
testified were actually present at the time the grievant was allegedly
working overtime and points out that the grievant admitted "that he was
not present during times when he was 'on call.'" Id. at 5. The Agency
also denies that there was any stipulation by management or any
testimony by a management witness that the grievant worked overtime
during the period in question.
The Agency also asserts that the Arbitrator's award of compensation
for lost commission wages is contrary to the Back Pay Act. The Agency
maintains that, under the Federal Wage System, the grievant "is only
entitled to pay at a straight time rate for noncommission work(,)" and
is "not entitled to additional pay for loss of commission earnings as a
result of doing work which would have entitled him only to straight time
pay." Id. at 6. The Agency also contends that damages cannot be awarded
to the grievant for a breach of the collective bargaining agreement
because the duty to bargain over changes in working conditions is a duty
owed the Union, not the grievant.
B. The Union
The Union asserts that the Agency's filing of exceptions to the
initial award is untimely and the Arbitrator's findings of facts and
award on the merits should be sustained. The Union disputes the
Agency's claim that there was no evidence of overtime worked by the
grievant and points out that the grievant's supervisor testified that
the grievant had worked overtime. The Union contends that the Agency is
denying its own stipulations and sworn testimony of management officials
that the grievant worked overtime. The Union denies that the award is
contrary to law and maintains that the Arbitrator made the required
findings for an award of backpay.
The Union states that even if there had been a tacit agreement with
employees not to pay overtime, such an agreement would be contrary to
Federal wage system law and to the parties' collective bargaining
agreement. The Union also denies that the employees were responsible
for maintaining records of overtime worked and points out that the
parties' agreement provides that records of overtime will be maintained
by the Agency. The Union contends that the Arbitrator properly awarded
backpay for the entire period claimed and states that the Agency had
stipulated that the grievance was a continuing grievance and not subject
to the time limit for filing.
We conclude that the Arbitrator's award is not contrary to Agency
regulation or to the Back Pay Act and we will deny the Agency's
exceptions.
As a preliminary matter we reject the Union's contention that the
Agency's exceptions are untimely. The Agency filed exceptions to the
initial award in Case No. 0-AR-1831. Those exceptions were dismissed as
interlocutory in 38 FLRA 587 (1990). The Agency then filed timely
exceptions following the issuance of the remedy award. Accordingly, the
Union's objection as to timeliness is denied.
Where an arbitration award conflicts with agency rules or
regulations, that conflict will provide a basis for finding the award
deficient under section 7122(a)(1) of the Statute when the rules or
regulations govern the disposition of the matter resolved by the
arbitration award and the rules or regulations do not conflict with
provisions of an applicable collective bargaining agreement. 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). In this case, the Agency asserts that
the Arbitrator's award is contrary to the Agency regulation governing
the payment of overtime and limiting such payment to hours worked in
excess of 40 hours per week or 8 hours per day. The Agency argues in
support of its exception that the Arbitrator based his award of overtime
on an erroneous finding that the grievant had actually worked the
overtime hours claimed in the grievance. The Agency claims that the
Arbitrator's finding is not supported by the evidence in the record.
We find no merit in the Agency's argument that the Arbitrator's award
is contrary to an Agency regulation because the award is not supported
by the evidence in the record. The Agency has not shown that the award
of backpay for overtime worked conflicts with the requirement of the
regulation that overtime is to be paid for hours worked in excess of 40
hours per week or 8 hours per day. Rather, we find that the Agency's
argument is an attempt to relitigate the merits of the grievance before
the Authority and constitutes mere disagreement with the Arbitrator's
findings. Disagreement with an arbitrator's evaluation of the evidence
and findings and conclusions based thereon provides no basis for finding
an award deficient. See U.S. Department of the Army, Army Aviation
Center, Fort Rucker, Alabama and American Federation of Government
Employees, Local 1815, 40 FLRA 94, 97 (1991).
We also find no merit in the Agency's contention that the award is
contrary to the Back Pay Act. For an award of backpay to be authorized
under the Back Pay Act, an arbitrator must determine that the aggrieved
employee was affected by an unjustified or unwarranted personnel action,
that the personnel action directly resulted in the withdrawal or
reduction of the grievant's pay, allowances or differentials, and that
but for such action, the grievant otherwise would not have suffered the
withdrawal or reduction. See Federal Employees Metal Trades Council and
U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 39 FLRA 3, 7 (1991). The failure of an agency to pay
employees monies to which they are entitled constitutes an unwarranted
personnel action within the meaning of the Back Pay Act. Id. Moreover,
the violation of a collective bargaining agreement constitutes an
unjustified and unwarranted personnel action under the Act. See U.S.
Department of Veterans Affairs, Medical Center, Marion, Illinois and
American Federation of Government Employees, Local 2483, 38 FLRA 270,
274 (1990).
The Arbitrator found that the grievant had worked overtime during the
time in question and found that had it not been for the Agency's
unjustified and unwarranted personnel action changing the grievant's
working conditions in violation of the collective bargaining agreement,
the grievant would have been paid for that overtime work. The
Arbitrator found further that, as a result of the grievant's performing
duties previously performed by the automotive supervisor, the grievant
had been denied the commissions he otherwise would have received. The
Arbitrator found that the grievant was entitled to be paid for that work
and accepted the grievant's claim for commission work he would have
performed from 1983 to 1987 as "reasonable." Remedy Award at 5. We
reject the Agency's argument that the grievant was not entitled to
backpay for the lost commission work. In our view, that work was
appropriately considered by the Arbitrator as part of the grievant's
"pay, allowances, or differentials" for purposes of the Back Pay Act.
We conclude that the Arbitrator made the required findings for an
award of backpay under the Back Pay Act and the Agency has failed to
establish that the award is contrary to the Act. In this regard, we
reject the Agency's contention that the grievant was not entitled to
backpay because the breach of the agreement concerned a duty owed to the
Union. The grievant was entitled to the award of backpay as a remedy
for the Agency's violation of the collective bargaining agreement that
resulted in a loss of pay, allowances, or differentials to the grievant,
regardless of to whom the duty in the contractual provision was owed.
The Agency's exceptions are denied.
40 FLRA 1070
40 FLRA NO. 96
Dept. of Treasury, Internal Revenue Service, Washington, D.C. and
IRS, Chicago, Illinois and NTEU and NTEU, Chapter 10, Case No.
5-CA-60265 (32 FLRA 237 and 717) (Decided May 29, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
7114(b)(4)(C)
UNFAIR LABOR PRACTICE
REQUESTED INFORMATION
PROHIBITED BY LAW
NECESSARY TO PERFORM REPRESENTATIONAL DUTIES
GUIDANCE, ADVICE, COUNSEL OR TRAINING
IN CAMERA ACCESS
FREEDOM OF INFORMATION ACT
EXEMPTION 5
The complaint alleged a violation of 7116(a)(1), (5) and (8) by
virtue of a failure to provide the Union with documents requested under
7114(b)(4). The documents at issue were related to the proposed removal
of an employee for making false and derogatory comments about another
employee. At issue were documents produced by individuals in the
employee's supervisory chain of command, in which supervisors had
reviewed the facts of the case, considered any mitigating factors,
including those set forth in the agreement, and recommended a specific
penalty. The case was before the Authority a second time, their having
remanded the case to the Judge to decide whether the documents at issue
were "necessary" within the meaning of 7114(b)(4)(B) or whether they
constituted "guidance, advice, counsel, or training . . . relating to
collective bargaining under 7114(b)(4)(C)."
As a preliminary matter, the Authority rejected the General Counsel's
contention that the Judge erred in not providing counsel for the General
Counsel and the Charging Party with access to the requested documents
under a protective order instead of the in camera procedure used by the
Judge. The Authority found that the Judge did not abuse his discretion.
On the merits, the Authority concluded that the requested documents
were not prohibited by law from disclosure. In this regard, the
Authority concluded that neither the Freedom of Information Act
Exemption 5 nor the privilege it incorporates prohibits the disclosure
of the requested information. The Authority next concluded that the
requested documents were necessary for the Union to perform its
statutory obligations, noting the Judge's conclusions that the requested
documents were necessary for the Union to determine whether Respondent
had considered mitigating factors set forth in the agreement; to
determine whether the documents contained information that would assist
the Union in its analysis of the merits of the case; and to aid the
Union in making its own determination of whether the case should be
taken to arbitration.
Finally, the Authority concluded that the requested information did
not constitute guidance, advice, counsel, or training under 7114(b)(4)(
C), rejecting the claim that the documents fall within the ambit of that
section because they reflect assessment of the incident, deliberations
of thought processes, and recommendations concerning appropriate
management action.
Case No. 5-CA-60265 32 FLRA 237 (1988) 32 FLRA 717 (1988)
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. AND INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS
DISTRICT OFFICE
(Respondent)
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 10
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel and the Respondent to the attached decision
of the Administrative Law Judge. The General Counsel and the Charging
Party filed oppositions to the exceptions filed by the Respondent. The
Respondent did not file an opposition to the exceptions filed by the
General Counsel.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5) and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by its failure to provide the Union with documents
requested under section 7114(b)(4) of the Statute.
The Judge originally dismissed the complaint in this case. As
discussed below, in two previous decisions, the Authority remanded this
case to the Judge to determine the issues raised in light of National
Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir.
1988) (NLRB Union, Local 6). 32 FLRA 237 (1988); 32 FLRA 717 (1988).
On remand, the Judge found that the requested documents: (1) were
not prohibited by law from being released based on the governmental
deliberative process privilege; (2) were necessary for the Union to
perform its representational duties on behalf of a unit employee; and
(3) were not guidance, advice, counsel or training which would permit
the Respondent to refuse to disclose the documents under section 7114(
b)(4)(C) of the Statute. Accordingly, the Judge found that the
Respondent had violated section 7116(a)(1), (5) and (8) of the Statute
by refusing to furnish the documents to the Union.
Pursuant to section 2423.29 of our Rules and Regulations, we have
reviewed the ruling of the Judge made at the hearing and find that no
prejudicial error was committed. We affirm the rulings. For the
reasons stated below, we agree with the Judge that the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by refusing to
furnish the documents to the Union.
A. Facts
The documents requested by the Union were related to the proposed
removal of a unit employee for making false and derogatory comments
about another employee. Under the parties' collective bargaining
agreement, the employee had the right to present evidence by oral and/
or written presentation prior to the Respondent's final decision. Union
Steward Michael Peacher represented the employee and, in order to assist
the employee in preparing for the oral and written replies, made various
requests for information, including the information at issue here.
Specifically, the Union requested "any and all material pertaining to
the selection of the appropriate penalty . . . ." 32 FLRA at 244.
Peacher was seeking documents produced by individuals in the
employee's supervisory chain of command, in which supervisors had
reviewed the facts of the caes, considered any mitigating factors,
including those set forth in Article 39 of the parties' Master Labor
Agreement, and recommended a specific penalty. Three such documents
existed: (1) one written by Mr. Novack, the employee's second line
supervisor, and signed by his third line supervisor; (2) one indicating
the authorship of that document; and (3) one identified as a "buck
slip" indicating that the employee relations officer agreed with the
first document.
According to Peacher, he sought the documents to determine whether
the allegations against the employee were supported and, if so, whether
the Respondent had imposed the proper penalty. Peacher stated that he
had no evidence that any factor in Article 39 had been considered. He
also stated that the requested information would assist him in his
analysis of the merits of the case and the hazards of litigation and aid
him in making a determination as to whether the case should be taken to
arbitration. Such information, according to Peacher, would be both
vital and critical to the Union in making its decision.
The Respondent refused to disclose the requested documents, claiming
that they were exempt under section 7114(b)(4)(C) of the Statute and
under the general governmental privilege for intra-agency advice and
opinion.
After the Respondent's refusal to provide the documents, the Union
made oral and written replies to the proposed termination, and held
further discussions with the Respondent. In accordance with an
agreement reached with the Union, the Respondent reduced the penalty to
a 15-day suspension. The Union reserved the right to reopen the case
based upon any additional evidence that it might subsequently secure,
including the documents at issue in this case.
B. Authority's Decision and Order Remanding Case in 32 FLRA 237
In his initial decision, the Judge concluded that this case was
controlled by National Park Service, National Capitol Region, United
States Park Police and Police Association of the District of Columbia,
26 FLRA 441 (1987) (National Park Service), which issued after the
hearing in the matter. Based on National Park Service, the Judge found
that the Respondent was not obligated to furnish documents which
constitute an interference with management's deliberative process
concerning the exercise of a management right under section 7106 of the
Statute. 32 FLRA at 248. Therefore, the Judge concluded that the
Respondent had not violated section 7116(a)(1), (5) and (8) of the
Statute and he recommended that the case be dismissed.
Thereafter, in NLRB Union, Local 6 the U.S. Court of Appeals for the
District of Columbia Circuit vacated and remanded the Authority's
decisions in National Park Service and a companion case, National Labor
Relations Board, 26 FLRA 1089 (1987). The court held that section 7106
of the Statute does not prohibit the disclosure of anything and,
therefore, that it does not bar the disclosure of information requested
under section 7114(b)(4). 842 F.2d at 486.
In 32 FLRA 237, the Authority concluded, consistent with the court's
decision in NLRB Union, Local 6, that the documents do not concern the
"deliberative process" by which management exercises its rights under
section 7106 of the Statute and, accordingly, found that the disclosure
of the requested documents is not barred under section 7114(b)(4). 32
FLRA at 240. The Authority vacated the Judge's recommended decision of
November 16, 1987, and remanded the case to the Judge to decide the
questions of whether the documents are "necessary" within the meaning of
section 7114(b)(4)(B), or whether they constitute "guidance, advice,
counsel, or training . . . relating to collective bargaining" under
section 7114(b)(4)(C). Id. The Authority further suggested that if the
Judge concluded that there was insufficient evidence to decide the
issue, he could either reopen the hearing, view the subject documents in
camera upon their being furnished by Respondent, or both. Id.
C. Authority's Order in 32 FLRA 717
In response to the Authority's decision in 32 FLRA 237 remanding the
case, the Respondent on June 20, 1988, filed a Motion For
Reconsideration or In the Alternative To Amend Remand Order. In its
motion for reconsideration, the Respondent asserted that section 7106
was never raised before the Judge as a basis for its refusal to release
the disputed documents. Rather, the Respondent asserted that it had
contended before the Judge that it was prohibited by law from disclosing
the information pursuant to the governmental deliberative process
privilege.
In 32 FLRA 717, the Authority denied the Respondent's motion for
reconsideration and granted Respondent's alternative motion to amend the
scope of the remand order. The Authority noted that neither it nor the
Judge had resolved the issue of whether release of the requested
documents is prohibited by law "based on the governmental deliberative
process privilege" and directed the Judge to consider all contentions
necessary to resolve this case consistent with the court's decision in
NLRB Union, Local 6. 32 FLRA at 719.
D. Judge's Order Dated July 29, 1988
On July 29, 1988, pursuant to the Authority's Orders of June 3 and
July 22, 1988, the Judge issued the following Order:
Pursuant to telephonic communications on July 28, 1988, all
parties agreed that reopening the record for additional testimony
was unnecessary. The Respondent agreed, over objection by the
General Counsel, to submit the subject documents for in camera
inspection. In addition, all parties agreed to submit legal
memorandum concerning the governmental "deliberative process
privilege" and on any new case law developments, which might aid
in resolving this matter, since the original briefs were
submitted.
It is therefore, ordered that Respondent submit the subject
documents for in camera review and that the parties submit legal
memorandum (sic) no later than (30) thirty days after the date of
mailing of this order.
Thereafter, the Respondent furnished to the Judge the documents for an
in camera inspection.
First, the Judge rejected the Respondent's contention that the
requested documents are prohibited by law from disclosure under section
7114(b)(4) of the Statute because they are protected by the governmental
deliberative process privilege. In this regard, the Judge found that
the documents "made a clear, concise recommendation" and that they lost
their "predecisional" status when the recommendation "was 'adopted,
formally or informally, as Respondent's position' on the matter."
Judge's Decision at 4 (quoting Coastal States Gas Corp. v. Department
of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (Coastal States Gas
Corp)). Further, in the Judge's view, "the governmental deliberative
process privilege is not applicable to conduct based removal cases such
as this where both issues of fact and mitigation must be explored by the
exclusive representative in performing its representational functions."
Id.
The Judge further concluded that the requested documents were
necessary within the meaning of section 7114(b)(4)(B) of the Statute.
According to the Judge:
The facts establish that the Union was not seeking the documents
to attack Respondent's position on what penalty to impose or to
bring the proposed penalty into issue. Peacher's testimony
clearly shows instead that he was seeking to determine whether
Respondent had considered the mitigating factors set out in
Article 39 of the agreement; whether the document contained
information which would assist him in his analysis of the merits
of the case; and, aid him in making his own determination of
whether the case should be taken to binding arbitration.
Id. at 5. In the Judge's view, these are legitimate representational
functions. Id.
Next, the Judge concluded that the requested documents did not
constitute guidance, advice, counsel or training under section 7114(b)(
4)(C) of the Statute. In the Judge's view, "the penalty documents did
not contain guidance, advice or counsel but merely the facts, the
supervisors (sic) assessment and a discussion of some of the mitigating
factors sought by the Union." Id. at 8. The Judge further determined
that the documents "did not weigh any action but made a clear
recommendation for action . . . ." Id.
Accordingly, the Judge found that the Respondent's refusal to furnish
the documents to the Union was violative of section 7116(a)(1), (5) and
(8) of the Statute.
A. General Counsel's Exceptions
First, the General Counsel excepts to the Judge's order that
Respondent submit the documents at issue for an in camera review.
General Counsel's Exceptions at 4. According to the General Counsel,
the General Counsel and the Charging Party should have been permitted
access to the documents for litigation purposes. The General Counsel
argues that the denial of disclosure of the disputed documents to the
General Counsel and the Charging Party prevented them from fully and
effectively arguing their positions "since they (had) no idea what
exactly is in the documents." Id. at 5. The General Counsel requested
that the Authority "reaffirm" that in situations such as this, the Judge
should disclose the disputed documents to counsel for the parties "under
a protective order as opposed to the in camera approach utilized by the
. . . Judge in this case." Id. at 5-6.
Second, the General Counsel excepts to the Judge's consideration of
the governmental deliberative process privilege asserted by the
Respondent. The General Counsel argues that the privilege was a
common-law defense which was superseded by the Statute, and, therefore,
is not applicable to this case. Thus, the General Counsel argues that
the Judge incorrectly relied on Exemption 5 of the Freedom of
Information Act (FOIA), 5 U.S.C. Section 552 (b)(5), and cases that
interpret that statutory provision in disposing of this privilege
defense. In this connection, the General Counsel argues that the FOIA
is not a "law which prohibits" the disclosure of information to the
exclusive representative within the meaning of section 7114(b)(4). Id.
at 7.
The General Counsel further excepts to the Judge's decision not to
adopt the General Counsel's interpretation of the term "collective
bargaining" in section 7114(b)(4)(C) of the Statute and to the Judge's
failure to find that the requested documents were not related to
collective bargaining within the meaning of that provision. Id. at 8.
The General Counsel asserts that the term "collective bargaining" in
section 7114(b)(4)(C) includes "negotiations, grievances, contract
enforcement and other such labor-management relations issues." Id.
According to the General Counsel, if the Authority fails to properly
interpret the term "collective bargaining" in section 7114(b)(4)(C),
agencies will continue to erroneously interpret the term to mean "all
personnel matters relate(d) to collective bargaining, including
promotions, demotions, details, reassignments, and, as in this case,
adverse actions." Id. at 9.
B. Respondent's Exceptions
The Respondent excepts to the Judge's failure to conclude that the
requested documents are protected by the governmental deliberative
process privilege and therefore that they are prohibited by law from
disclosure under section 7114(b)(4). The Respondent maintains that the
documents fall within the privilege because they were "predecisional
memoranda prepared in order to assist an agency decisionmaker in
arriving at his decision, which are exempt from disclosure . . . ."
Respondent's Exceptions at 6 (quoting Renegotiation Board v. Grumman
Aircraft Engineering Corp., 421 U.S. 168, 184 (1975) (Grumman
Aircraft)). The Respondent notes that Exemption 5 of the FOIA
incorporates the governmental deliberative process privilege and argues
that Exemption 5 bars from disclosure documents related to the
governmental deliberative process involved in making "personnel
decisions." Id. at 10. In support of this argument the Respondent cites
American Federation of Government Employees Local 2782 v. U.S.
Department of Commerce, 632 F. Supp. 1272, 1277 n.6 (D.D.C. 1986) (AFGE)
and Ryan v. Department of Justice, 617 F.2d 781, 791 (D.C. Cir. 1980)
(Ryan).
The Respondent also excepts to the Judge's conclusion that the
documents were necessary within the meaning of section 7114(b)(4)(B) of
the Statute. The Respondent contends that the documents were neither
relevant nor necessary for the Charging Party's representational
responsibilities.
The Respondent asserts that the Union did not need the documents to
determine whether the case should be taken to arbitration. The
Respondent argues that under the parties' agreement the right to go to
arbitration arises "only when the final decision regarding what penalty
will be imposed is issued" and at the time the documents were requested
no such final decision had been made. Respondent's Exceptions at 13.
The Respondent also asserts that the Union did not need the documents to
determine whether the Respondent had considered the mitigating factors
set forth in the parties' agreement. The Respondent argues that under
the agreement management is obligated to give "due consideration to the
relevancy of any mitigating and/or aggravating circumstances" only with
regard to an adverse action and not with regard to a proposed adverse
action like the one in this case. Id. at 14. The Respondent further
contends that the documents were not necessary for the Union to
determine if the Agency had proved the appropriateness of the penalty.
According to the Respondent, court decisions demonstrate that an agency
does not have to prove the appropriateness of a penalty because that
determination is a matter primarily within the discretion of the agency.
Id.
Finally, the Respondent excepts to the Judge's failure to find that
the requested documents constituted guidance or advice provided for
management officials or supervisors relating to collective bargaining,
under section 7114(b)(4)(C) of the Statute. The Respondent argues that
the documents "all reflect assessment of the incidents, deliberations or
thought processes, and recommendations concerning appropriate management
action()" and, therefore, fall within the ambit of section
7114(b)(4)(C). Id. at 17.
C. General Counsel's Opposition to Respondent's Exceptions
In its opposition, the General Counsel reiterates its position that
the governmental deliberative process privilege and the FOIA are not
applicable to the Statute and that the requested documents do not relate
to collective bargaining within the meaning of section 7114(b)( 4)(C) of
the Statute. The General Counsel further contends that the Judge
correctly determined that the requested documents were necessary within
the meaning of section 7114(b)(4) of the Statute.
D. Charging Party's Opposition to the Respondent's Exceptions
The Charging Party contends that the Judge correctly concluded that
neither the governmental deliberative process privilege nor the FOIA
bars disclosure of the requested documents to the Union. The Charging
Party argues that the common law governmental deliberative process
privilege is not relevant to a union's right to information under
section 7114(b)(4), and disputes, among other things, the Respondent's
position that the privilege is applicable to internal personnel
decisions made by the Respondent. The Charging Party argues that AFGE
does not support the Respondent's position because the court in that
case did not analyze the issue of whether the FOIA exempts such
information from disclosure, but merely cited in a footnote two
non-precedential decisions and Ryan, which "had nothing to do with
'personnel decisions.'" Charging Party's Opposition at 6. The Charging
Party contends that the privilege is intended to protect against
premature disclosure of proposed policies and advice to a decisionmaker,
citing Coastal States Gas Corp., and that this case does not involve the
disclosure of any policies. The Charging Party further asserts that,
even if the deliberative process privilege applies, "a balancing of
rights unquestionably tips in favor of the Union." Id. at 7.
The Charging Party further contends that the Judge correctly
concluded that the requested documents were "necessary" within the
meaning of section 7114(b)(4) of the Statute. The Charging Party
maintains that the documents were needed to prepare the Grievant's oral
reply to the proposed penalty. According to the Charging Party, the
oral reply meeting provides the grievant with the best opportunity to
convince the Agency to mitigate or drop its proposed penalty and the
documents were sought to support such purposes. The Charging Party
further argues that by raising in the oral reply meeting the issue of
whether the Agency properly considered mitigating circumstances and by
obtaining the Agency's response, the Charging Party will be better able
to make a decision on whether to take the case to arbitration.
The Charging Party disputes the Respondent's position that the Agency
has no obligation to prove that the proposed penalty is appropriate.
The Charging Party argues that an agency has the burden of proving that
the proposed penalty is appropriate. It also argues that an arbitrator
can review an agency's penalty determination and that the arbitrator has
a duty to consider mitigation. Further, the Charging Party maintains
that the requested documents will assist it in policing and
administering the parties' agreement.
Finally, the Charging Party contends that the Judge correctly
concluded that the documents sought do not constitute guidance or advice
relating to collective bargaining under section 7114(b)(4)(C). The
Charging Party argues in this regard that the supervisor was simply
providing a recommendation for action, based on his consideration of the
mitigating factors and his assessment of the appropriate penalty.
A. Preliminary Matter
The General Counsel contends that the Judge erred in not providing
counsel for the General Counsel and the Charging Party with access to
the requested documents under a protective order instead of the in
camera procedure used by the Judge. We disagree.
It is within the discretion of the judge presiding in a case to
decide whether disputed documents should be disclosed to the parties
under a protective order or examined by the judge in camera, subject to
review by the Authority on timely filed exceptions. National Park
Service, National Capital Region, United States Park Service, 38 FLRA
1027, 1034 (1990), petition for review filed sub nom. National Park
Service, National Capital Region, United States Park Service v. FLRA,
No. 91-1087 (D.C. Cir. Feb. 15, 1991).
We conclude that the Judge did not abuse his discretion by following
the Authority's suggestion to examine the documents in camera. We
reject the General Counsel's argument that the denial of disclosure of
the disputed documents to the General Counsel and the Charging Party
prevented them from fully and effectively arguing their positions "since
they (had) no idea what exactly is in the documents." General Counsel's
Exceptions at 5. In this regard, we note that all parties, including
the General Counsel and the Charging Party, in effect agreed to
foreclose further direct and cross examination by agreeing on July 28,
1988, that reopening the record for additional testimony was
unnecessary. Furthermore, we conclude that the contents of the
documents were adequately and accurately described by the Judge in his
decision so as to permit the parties to formulate arguments in their
exceptions and oppositions. Therefore, we find that the Judge's failure
to require the Respondent to disclose the documents under a protective
order did not constitute prejudicial error. Accordingly, we affirm the
Judge's order directing the Respondent to submit the documents for in
camera review.
B. The Requested Documents Were Not Prohibited by Law from
Disclosure
In its exceptions the Respondent repeats arguments made to the Judge
that release of the documents is prohibited by the governmental
deliberative process privilege. In support of its position, the
Respondent cites cases that apply and interpret Exemption 5 of the FOIA.
For the following reasons, we disagree with the Respondent.
Section 7114(b)(4) of the Statute limits an agency's duty to furnish
data "to the extent not prohibited by law(.)" In order for the
"prohibited by law" provision of section 7114(b)(4) to apply, "there
must be something somewhere in the law that forbids that data's
disclosure." NLRB Union, Local 6, 842 F.2d at 486.
FOIA Exemption 5 provides that the FOIA does not apply to matters
that are:
(I)nter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in
litigation with the agency(.)
Courts have interpreted Exemption 5 as incorporating the governmental
deliberative process privilege, which protects advice, recommendations,
and opinions that are part of the deliberative, consultative,
decision-making process of government. National Labor Relations Board
v. Sears, Roebuck and Company, 421 U.S. 132, 150-154 (1975);
Environmental Protection Agency v. Mink, 410 U.S. 73, 85-91 (1973).
We conclude that neither FOIA Exemption 5 nor the privilege it
incorporates prohibits the disclosure of the requested documents. The
Authority has previously determined that the FOIA does not prohibit
release of data; rather, it permits agencies to invoke certain
exceptions to withhold data falling within those exceptions. Department
of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort
Bragg, North Carolina, 26 FLRA 407, 412-13 (1987). Thus, neither FOIA
Exemption 5 nor the governmental deliberative process privilege it
incorporates prohibits by law the disclosure of the documents in this
case under section 7114(b)(4) of the Statute. Id.
Even assuming that FOIA Exemption 5 and the governmental deliberative
process privilege are applicable to section 7114(b)(4) of the Statute,
we conclude that that statutory provision and the privilege it
incorporates do not forbid the release of documents in the circumstances
of this case. Thus, in our view, FOIA Exemption 5 does not forbid the
disclosure of data, as in this case, that was part of a deliberative
process in an agency personnel decision. Rather, based on a review of
court decisions, we conclude that FOIA Exemption 5 is intended to apply
only to data that was part of the deliberative process in the
formulation of agency policy. In this regard, the U.S. Court of
Appeals for the District of Columbia Circuit stated in Coastal States
Gas Corp. that FOIA Exemption 5 and the governmental deliberative
process privilege protect against premature disclosure of proposed
"policies before they have been finally formulated(.)" 617 F. 2d at
866. Further, the Supreme Court in Sears stated, with respect to FOIA
Exemption 5, that "frank discussion of legal or policy matters in
writing might be inhibited if the discussion were made public, and that
the decisions and policies formulated would be the poorer as a result."
421 U.S. at 150 (citation omitted). See also Grumman Aircraft. The
clear tenor of these cases is that the privilege protects documents
prepared in the formulation of policy on behalf of an agency and not the
type of personnel action at issue herein.
We disagree with the Respondent that AFGE and Ryan support the
conclusion that FOIA Exemption 5 and the governmental deliberative
process privilege apply to documents that were part of the deliberative
process in an agency personnel decision. Admittedly, in footnote 6 of
AFGE, the court states, without explanation, "that (FOIA) Exemption 5
protects the 'deliberative process' involved "in making personnel
decisions(.)" 632 F.Supp. at 1277 n.6. In support of this statement,
the court cites to Ryan. The documents barred from disclosure in Ryan,
however, were characterized by the court as part of the deliberative
process in the formulation of policy regarding the Attorney General's
evaluation of selection processes for Federal district court judges.
617 F.2d at 791. They did not concern individual agency personnel
matters. Similarly, although not expressly characterized as such by the
court, the SF-52s, the documents barred from disclosure in AFGE, were
intertwined with the Agency's policy-making process. Thus, the Court
describes the SF-52s in AFGE as follows:
By analogy the Population Division's decision in the instant case
to initiate the personnel process by an SF-52 requesting that a
position be filled is, in essence, a decision to make more
decisions with respect to such essential matters as whether the
position is needed at all, at what cost and from whose budget,
what the successful applicant will be expected to do, and to whom
he or she will report, as well as who should be chosen to fill it.
632 F. Supp. at 1277. In contrast, the documents at issue in this case
concern only one personnel action regarding one employee that has no
reasonably foreseeable effect on the overall policy direction of the
Agency. Therefore, we find that AFGE and Ryan do not support the
conclusion that FOIA Exemption 5 and the governmental deliberative
process privilege protect from disclosure documents written to assist an
agency in making individual personnel decisions. Accordingly, we
conclude that the documents sought in this case are not prohibited by
law from disclosure.
C. The Requested Documents Were Necessary for the Union to Perform
Its Statutory Obligations.
We note, at the outset, that, as there is no contention by Respondent
to the contrary, we find that the requested information is normally
maintained and reasonably available within the meaning of section
7114(b)(4) of the Statute.
With respect to the issue before us, the Respondent argues that the
requested documents were not necessary for the Union to perform its
representational functions because at the time the Union requested the
documents no decision had been made regarding the action to be taken
against the employee and management was not yet required to consider
mitigating factors. The Respondent further argues that an agency never
has to prove the appropriateness of a penalty. We reject the
Respondent's arguments.
It is well established that under section 7114(b)(4) of the Statute
the exclusive representative is entitled to information that is
necessary to enable it to carry out effectively its representational
responsibilities, including information which will assist it in the
investigation, evaluation, and processing of a grievance. See
generally, U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515 (1990), application for
enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990). See also, for example, U.S. Department of the Air
Force, Air Force Logistics Command, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 37 FLRA 987, 995 (1990);
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990) (Fort Bragg).
Under section 7114(b)(4) of the Statute, the Union is entitled to
information that enables it realistically to assess the strengths or
weaknesses of a potential grievant's position. See, for example,
National Labor Relations Board, 38 FLRA 506, 517 (1990) (NLRB) petition
for review filed sub nom. National Labor Relations Board v. FLRA, No.
91-1044 (D.C. Cir. Jan. 24, 1991); U.S. Department of Labor, Office of
the Assistant Secretary for Administration and Management, 26 FLRA 943,
950 (1987). The fact that the requested information involved a
proposed, rather than a final, action would not affect the Union's needs
to evaluate the information in this respect. Further, there is no
requirement that information requested under section 7114(b)(4) of the
Statute actually be used in a grievance. See Fort Bragg, 34 FLRA at 462
(agency's assertion that a grievance is nongrievable did not negate the
agency's obligation under section 7114(b)(4) to provide information
relating to that grievance). The Union may have other representational
needs for the information even if it decides not to file a grievance
after it obtains and evaluates the information. See American Federation
of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360,
1364 (D.C. Cir. 1986). Moreover, the Respondent's contention that a
third party may not evaluate the appropriateness of its penalty does not
affect its obligation to furnish the Union with the documents it seeks.
See, for example, Department of the Air Force, Scott Air Force Base,
Illinois, 38 FLRA 410, 416 (1990) (Scott Air Force Base) petition for
review filed sub nom. Department of the Air Force, Scott Air Force Base,
Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991); Internal
Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986).
In this case, the Judge concluded, and we agree, that the requested
documents, which were created by the Respondent in connection with a
removal action, were necessary for the Union to: (1) determine whether
Respondent had considered the mitigating factors set forth in Article 39
of the parties' agreement; (2) determine whether the documents
contained information that would assist the Union in its analysis of the
merits of the case; and (3) aid the Union in making its own
determination of whether the case should be taken to arbitration. In
this regard, the issues of whether disciplinary action was warranted
and, if so, whether the penalty assessed was appropriate are clearly
matters to be decided by an arbitrator. See Social Security
Administration and American Federation of Government Employees, AFL-CIO,
30 FLRA 1156, 1162 (1988). It follows that a union needs all relevant
information regarding these issues in order to determine the proper
course of action to take on behalf of a grievant it represents. See
Scott Air Force Base, 38 FLRA at 416-17. Therefore, we find, in
agreement with the Judge, that the documents were necessary within the
meaning of section 7114(b)(4)(B) of the Statute for the Union to fulfill
its representational responsibilities.
D. The Requested Documents Do Not Constitute Guidance, Advice,
Counsel, or Training Under Section 7114(b)(4)(C) of the Statute
In NLRB, the Authority held that:
section 7114(b)(4)(C) exempts from disclosure to the exclusive
representative information which contains guidance, advice,
counsel, or training for management officials relating
specifically to the collective bargaining process, such as: (1)
courses of action agency management should take in negotiations
with the union; (2) how a provision of the collective bargaining
agreement should be interpreted and applied; (3) how a grievance
or an unfair labor practice charge should be handled; and (4)
other labor-management interactions which have an impact on the
union's status as the exclusive bargaining representative of the
employees.
38 FLRA at 522-23. The Authority further stated that section 7114(b)(
4)(C):
does not exempt from disclosure guidance, advice, or counsel to
management officials concerning the conditions of employment of a
bargaining unit employee, for example: the personnel, policies
and practices and other matters affecting the employee's working
conditions, that are not specifically related to the collective
bargaining process.
Id. at 523.
Applying the foregoing interpretation of section 7114(b)(4)(C) to the
facts and circumstances in this case, we conclude that the disputed
documents do not constitute guidance, advice, or counsel relating to
collective bargaining within the meaning of section 7114(b)(4)(C) of the
Statute. In so doing, we reject the Respondent's claim that the
requested documents fall within the ambit of section 7114(b)(4)(C)
because they "reflect assessement of the incidents, deliberations or
thought processes, and recommendations concerning appropriate management
action." Respondent's Exceptions at 17.
The record reveals that the requested documents created by Respondent
contained facts, supervisors' assessments and a discussion of some of
the mitigating factors sought by the Union. Judge's Decision at 8.
These assessments and discussions were not made in a context involving
any type of negotiations between the parties. Moreover, the assessments
and discussions of supervisors were made prior to the filing of a
grievance, when management was considering disciplinary action against
an employee. Therefore, the disputed documents could not be considered
guidance, advice, or counsel to management concerning the processing of
a grievance. Rather, they involved a typical personnel matter affecting
an individual employee's working conditions, a matter specifically not
exempted from disclosure in NLRB. Accordingly, we conclude that the
requested documents do not constitute guidance, advice, counsel, or
training for management relating to collective bargaining within the
meaning of section 7114( b)(4)(C).
Section 7114(b)(4) of the Statute requires an agency to furnish the
exclusive representative of its employees, upon request and to the
extent not prohibited by law, information which is reasonably available
and necessary for the union to carry out effectively its
representational functions. In this case, there is no dispute that the
requested information was reasonably available and normally maintained.
In addition, we have concluded that disclosure of the documents was not
prohibited by law and that the information was necessary for the Union
to process the employee's grievance. Further, the documents did not
constitute guidance, advice, counsel or training for management
officials relating to collective bargaining within the meaning of
section 7114(b)(4)(C) of the Statute.
Therefore, we find that the Respondent was required by section 7114(
b)(4) of the Statute to furnish the requested documents to the Union and
its failure to do so violated section 7116(a)(1), (5), and (8) of the
Statute. Accordingly, we will direct the Respondent to cease and desist
from its violation of the Statute and to furnish the requested
documents.
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 the Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Chicago District, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Treasury Employees
Union and National Treasury Employees Union, Chapter 10, requested
materials pertaining to the selection of the penalty regarding a
bargaining unit employee against whom an adverse action had been
proposed.
(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) Furnish the National Treasury Employees Union and National
Treasury Employees Union, Chapter 10, requested materials pertaining to
the selection of the penalty regarding a bargaining unit employee
against whom an adverse action had been proposed.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the District Director 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, Chicago 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 to furnish the National Treasury Employees Union
and National Treasury Employees Union, Chapter 10, requested materials
pertaining to the selection of the penalty regarding a bargaining unit
employee against whom an adverse action had been proposed.
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 materials pertaining to the selection of the penalty
regarding a bargaining unit employee against whom an adverse action had
been proposed as requested by the National Treasury Employees Union and
National Treasury Employees Union, Chapter 10.
(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, Chicago Regional Office, whose address is: 175 W.
Jackson Boulevard, Suite 1359-A, Chiacago, IL 60604, and whose telephone
number is: (312) 353-6306.
Case No. 5-CA-60265, (32 FLRA 237), (32 FLRA 717)
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON, D.
C. AND INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS DISTRICT OFFICE
Respondent
NATIONAL TREASURY EMPLOYEES, UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 10
Charging Party
John F. Gallagher, Esq., For the General Counsel
Denise Jarrett Dow, Esq., For the Respondent
Martin P. Barr, Esq. with Michael J. McAuley and Paul R. Klenck, on
brief, For the Charging Party
Before: ELI NASH, JR., Administrative Law Judge
On November 16, 1987 the undersigned issued a Decision in the
above-captioned proceeding finding that the case was controlled by
National Park Service, National Capitol Region, United States Park
Police and Police Association of the District of Columbia, 26 FLRA 441
(1987) a case which issued after the hearing in the matter. Based on
National Park Service the undersigned recommended that Respondent had
not failed to comply with section 7114(b)(4) in violation of section
7116(a)(1), (5) and (8) of the Statute and that the case be dismissed.
Thereafter the U.S. Court of Appeals for the District of Columbia
Circuit vacated and remanded the Authority's decisions in National Park
Service and a companion case, National Labor Relations Board, 26 FLRA
1089 (1987). National Labor Relations Board Union, Local 6 v. FLRA, 842
F.2d 483 (D.C. Cir. 1988). The court held that section 7106 does not
forbid the disclosure of data and, therefore, it does not bar the
disclosure of information under section 7114(b)(4).
Consistent with the above court decision, the Authority on June 3,
1988, found that disclosure of the documents sought in this matter is
not barred under section 7114(b)(4) because they concern the
"deliberative process" by which management exercises its rights under
section 7106 of the Statute. Accordingly, the Authority vacated the
Decision of November 16, 1987 and remanded the case to the undersigned.
Since it did not have the documents before it, the Authority directed
the undersigned to decide the questions whether the documents are
"necessary" within the meaning of section 7114(b)(4)(B), or whether they
constitute "guidance, advice, counsel, or training . . . relating to
collective bargaining" under section 7114(b)(4)(C).
On June 20, 1988, Respondent filed a Motion For Reconsideration Or In
The Alternative to Amend Remand Order. Thereafter, on July 22, 1988,
the Authority issued an Order Denying Motion For Reconsideration And
Granting Motion To Amend Remand Order. In granting Respondent's motion,
the Authority directed the undersigned to "consider all contentions"
necessary to resolve the case consistent with the court's decision.
During telephonic communications on July 28, 1988, all parties agreed
that reopening the record for additional testimony was unnecessary. The
Respondent agreed, over objection of the General Counsel to submit the
subject documents for in camera inspection. Further, all parties agreed
to submit additional legal memorandum concerning the governmental
deliberative process privilege and on any new case law developments
since original briefs were filed.
Pursuant to an Order issued on July 29, 1988 all parties filed timely
supplemental briefs with the undersigned. Upon consideration of the
entire record in this matter, I make the following findings of fact
conclusions of law and recommendations on remand:
The basic facts are set forth in the original Decision and again
summarized in the Authority's Decision and Order Remanding Case.
In addition to the above facts the remand requires that facts
concerning whether the penalty documents were "necessary" be considered.
Testimony of Michael L. Peacher, a Union official, sought to establish
that the documents were necessary for the Union to perform
representational functions. According to Peacher Article 39 /1/ of the
agreement between the parties listed factors to be considered in
arriving at the appropriate penalty and disciplinary actions. He also
stated that a distinct element of management's burden of proof was to
show that the proper penalty was selected.
Peacher stated that he had no evidence that a single factor in
Article 39 was considered. He also stated that this information would
assist him in his analysis of the merits of the case, the hazards of
litigation and aid him in making a determination as to whether the case
should be taken to binding arbitration. Such information, according to
Peacher, would be both vital and critical to the Union in making its
decision. As previously stated, the information did contain reference
to some of the factors found in Article 39 of the agreement.
Finally, the in camera inspection of the subject documents, which in
essence was only one document, persuaded the undersigned the documents
were necessary for the Union to perform is representational functions.
A. WHETHER THE PENALTY DOCUMENTS ARE PROHIBITED BY LAW FROM BEING
RELEASED AS THEY ARE PROTECTED BY THE GOVERNMENTAL DELIBERATIVE PROCESS
PRIVILEGE.
Respondent submits that the governmental deliberative process
privilege protects documents containing internal deliberative
communications, recommendations, and advisory opinions. United States
v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); NLRB v. Sears,
Roebuck & Co., 421 U.S. 132 (1975); EPA v. Mink, 410 U.S. 73 (1973);
Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S.
168, 184 (1975). Under Respondent's reasoning the deliberative process
privilege's primary purpose is to enable governmental decision makers
"to engage in that frank exchange of opinions and recommendations
necessary to the formulation of policy without being inhibited by fear
of later public disclosure." American Federation of Government
Employees, Local 2782 v. U.S. Department of Commerce, 632 F. Supp.
1272, 1275 (D.D.C. 1986) (quoting Paisely v. CIA, 712 F.2d 686, 697-698
(D.C. Cir. 1983).
Both the Charging Party and the General Counsel argue that the
potential harm of excessive public scrutiny, Respondent's basic appeal
in this case, is not germane since the deliberative process privilege is
not meant to shield government documents from other government employees
or to be applied to purely internal personal matters. I agree that the
privilege does not protect documents such as the penalty documents from
disclosure to an exclusive representative. An analysis of Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854, 866-867 (D.C.
Cir. 1980) persuades the undersigned that neither the predecisional
deliberative test nor the actual agency test precludes disclosure of the
information requested in this case. The documents did not concern
themselves with the pros and cons of any action, but made a clear,
concise recommendation. The evidence shows that the document or
documents were subsequently adopted as Respondent's initial position in
justifying the discipline in the case. Under the agency position test,
the information, although predecisional at the time it was prepared,
lost that status when it was "adopted, formally or informally, as
Respondent's position" on the matter. See Coastal States, supra.
Furthermore, disclosure of the predecisional documents would assist in
proper agency decision making to the extent that it forces Respondent's
supervisors and managers to consider established policy and procedures
when involved in the making of disciplinary decisions while
nondisclosure would allow those same supervisors and managers to cover
up mistakes at the expense of the disciplined employee. Accordingly, it
is my view that the governmental deliberative process privilege is not
applicable to conduct based removal cases such as this where both issues
of fact and mitigation must be explored by the exclusive representative
in performing its representational functions. Consequently,
Respondent's argument that the deliberative process privilege applies
here is rejected.
B. WHETHER THE PENALTY DOCUMENTS WERE NECESSARY WITHIN THE MEANING
OF SECTION 7114(b)(4)(B) OF THE STATUTE.
The General Counsel and Charging Party contend that the penalty
documents were relevant and necessary in this case because the documents
included a discussion of the supervisor's assessment of the allegations
made against the employee and because they contained a discussion of at
least some of the 11 mitigating factors outlined in Article 39 of the
agreement and also that they contained a recommended penalty. Of course
there is, in reality, only one document since the documents prepared by
Novack for Monaco's signature and the concurring route-slip are merely
concurrences with the original document.
Respondent maintains that the documents are neither necessary nor
relevant since essentially the penalty was not at issue at that stage of
the disciplinary proceeding when the data was requested. Further,
Respondent argues that the agency does not have to prove the
appropriateness of the penalty imposed.
The facts establish that the Union was not seeking the documents to
attack Respondent's position on what penalty to impose or to bring the
proposed penalty into issue. Peacher's testimony clearly shows instead
that he was seeking to determine whether Respondent had considered the
mitigating factors set out in Article 39 of the agreement; whether the
document contained information which would assist him in his analysis of
the merits of the case; and, aid him in making his own determination of
whether the case should be taken to binding arbitration. All the
aforementioned are, in my opinion, legitimate representational
functions. Peacher repeatedly emphasized his view that the documents
were critical for his assessment of the grievance. In camera review of
the documents supports the view of Peacher that the documents might have
aided him in making an intelligent assessment of what action he should
take on the matter.
The law is well settled that an exclusive representative is entitled
to information relevant to its obligation to represent a unit employee
subject to disciplinary treatment. Internal Revenue Service, Western
Region, San Francisco, California, 9 FLRA 480, 493. Furthermore, the
cases are legion which state that the full range of representational
responsibilities includes the effective evaluation and processing of
grievances. National Treasury Employees Union, Chapter 237, 32 FLRA 62,
68, 70 (1988); U.S. Customs Service, Region VII, Los Angeles,
California, 10 FLRA 251 (1982); Veterans Administration Regional
Office, Denver, Colorado, 7 FLRA 629 (1982).
Based on the testimony of Peacher as to the necessity of the
information for review to determine what further action need be taken by
the exclusive representative and to assure that agency management had
conformed with the provisions of the agreement, it is my view that the
data sought was essential for Peacher to effectively evaluate Union
action on the grievance. Thus, the documents were both relevant and
necessary in order to allow the exclusive representative an opportunity
to fulfill its representational responsibilities. Accordingly, it is
found that the documents were necessary within the meaning of section
7114(b)(4)(B).
C. WHETHER THE PENALTY DOCUMENTS CONSTITUTE GUIDANCE OR ADVICE
PROVIDED FOR MANAGEMENT OFFICIALS RELATING TO COLLECTIVE BARGAINING.
Respondent asserts that the documents at issue in this case, Mr.
Novack's memorandum, Mr. Monaco's memorandum adopting Mr. Novack's
memorandum as his own, and the Personnel Office's routing slip adopting
the Novack/Monaco memorandum as its predecisional analysis, all reflect
assessment of the incidents, deliberations or thought processes, and
recommendations concerning appropriate management action and as such are
covered by section 7114(b)(4)(C) and are therefore, exempt from
disclosure. Contrawise, the Charging Party argues that in American
Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home
Loan Bank Board, New York District Office, 13 FLRA 446 (1983), a
negotiability case, the Authority struck a proper balance between an
agency's obligation to supply information and the protection to be
granted agency guidance when it said:
Third, the Union has a legitimate concern with its own status as
the exclusive bargaining representative. It is entitled to
information when the Agency takes an action that affects its role
as exclusive representative. The Union cannot fulfill its
obligation to fully represent all employees in the unit if it
lacks information necessary to assess its representational
responsibities.
The Charging Party reads this passage as limiting the scope of
section 7114(b)(4)(C) to the negotiation context thereby, assuring that
unions will not be unduly hampered in assessing their representational
responsibilities. Further, it asserts that the information sought does
not pertain to any ongoing negotiations but merely to the discussion of
mitigating factors and penalty recommendation in this particular matter.
The General Counsel cites Department of Commerce, National Oceanic
and Atmospheric Administration, National Weather Service, Silver Spring,
Maryland, (National Weather Service), 30 FLRA 127 (1987) /2/ in
asserting that the documents were not exempt from disclosure since they
were not merely a recommendation but in fact, constitute the actual
decision of Respondent. That decision however, was changed from
termination to a suspension due to efforts of the Union.
Finally, as the Charging Party urged in its original brief, certain
remarks by Congressman Ford established beyond doubt that documents such
as involved in this case are not exempt from the broad disclosure
obligation of section 7114(b)(4) when reporting to the House on
particular features of the final bill where he stated:
Section 7114(b)(4) requires that the agency provide certain
information not otherwise prohibited by law relating to
negotiations. There is no exemption for this requirement for
information, whether or not deemed "confidential" by the agency
unless that information constitutes guidance, advice, counsel, or
training, each specifically related to collective bargaining.
(emphasis added)
124 Cong. Rec. H. 130608 (daily ed. Oct. 14, 1978).
The more persuasive argument here is that section 7114(b)(4)(C)
pertains only to the actual conduct of negotiations and that
confidential documents may be withheld only if they constitute guidance
related to "collective bargaining." If that argument is accepted on its
face no further analysis would be necessary since there are no ongoing
negotiations here. Putting that argument aside, it is my view that the
penalty documents did not contain guidance, advice or counsel but merely
the facts, the supervisors assessment and a discussion of some of the
mitigating factors sought by the Union. In fact the documents did not
weigh any action but made a clear recommendation for action and, thus
contain essentially the items Peacher testified that he needed to
evaluate the grievance. Moreover, having already found that the
documents are relevant and necessary for the exclusive representative to
fulfill its representational function it would be incongruous to now
find that the exemption applies and Respondent need not disclose the
documents. Therefore it is found that the documents are not guidance,
advice, counsel or training which would entitle Respondent to benefit by
the section 7114(b)(4)(C) exemption.
Based on all of the foregoing, it is found that Respondent failed to
comply with section 7114(b)(4) of the Statute when it failed and refused
to furnish information available and necessary for the Union to fulfill
its representational responsibilities and, thereby violated section
7116(a)(1), (5) and (8) of the Statute
Accordingly it is recommended that the Authority adopt the following:
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 the Treasury, Internal Revenue
Service, Washington, D.C. and Internal Revenue Service, Chicago
District, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Treasury Employees
Union and National Treasury Employees Union, Chapter 10, requested
materials pertaining to the selection of the penalty regarding a
bargaining unit employee against whom an adverse action had been
proposed.
(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) Furnish the National Treasury Employees Union and National
Treasury Employees Union, Chapter 10, requested materials pertianing to
the selection of the penalty regarding a bargaining unit employee
against whom an adverse action had been proposed.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the District Director or a designee
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, Region 5, Federal Labor
Relations Authority, 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL
60604, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., September 28, 1989
/s/ ELI NASH, JR.
ELI NASH, JR.
Administrative Law Judge
(1) Article 39, Section F contains 11 different factors which are to
be used by management in deciding what action may be appropriate. The
factors are neither "meant to be exhaustive review nor intended to be
applied mechanically. . . ."
(2) Interestingly my colleague, Administrative Law Judge William B.
Devaney cites this same case in finding information similar to this as
exempt from disclosure under section 7114(b)(4)(C) in National Park
Service, National Capitol Region, United States Park Police and Police
Association of the District of Columbia, OALJ-89-97, issued July 26,
1989. That case of course is the Authority's rehearing of the National
Park Service, supra, court decisions which held that section 7106 did
not forbid disclosure of the data.
40 FLRA 1052
40 FLRA NO. 95
AFGE, National Veterans Administration Council and Dept. of Veterans
Affairs, Washington, D.C., Case No. 0-NG-1876 (Decided May 29, 1991)
7105(a)(2)(E)
7106(a)(2)(B)
7106(a)(2)(A)
7106(b)(3)
7106(a)(1)
7106(b)(1)
NEGOTIABILITY DETERMINATION
SMOKE FREE ENVIRONMENT
RIGHT TO ASSIGN WORK
RIGHT TO DISCIPLINE EMPLOYEES
APPROPRIATE ARRANGEMENTS
SMOKING SHELTERS
CONDITIONS OF EMPLOYMENT
MISSION
TECHNOLOGY, METHODS AND MEANS
EFFECTS OF FEDERAL SERVICE IMPASSES PANEL DECISIONS
INAPPROPRIATE FORUM FOR RESOLUTION
At issue were five proposals concerning implementation of the
Agency's decision to establish a smoke-free environment in the Agency's
medical facilities.
Proposal 14 provided that on smoke free units, physician's orders to
allow smoking for a certain patient need not be honored by Nursing staff
and that they shall constitute an improper order. The Authority found
that the proposal directly interfered with management's right under
7106(a)(2)(B) to assign work, noting particularly that the plan wording
of the proposal permits employees to "not honor" particular work
assignments. The Authority further determined that even assuming that
the proposal is intended to be an arrangement under 7106(b)(3), the
proposed arrangement excessively interferes with management's right to
assign work.
The portion of Proposal 15 at issue provided that if a patient on a
smoke free unit desires to smoke and cannot go to an outside shelter,
only volunteer staff shall be required to accompany the patient to
shelter and there shall be no coercion to do so. Noting that the
proposal would make a specified work assignment totally voluntary and
that if insufficient volunteers existed, the Agency would be precluded
from assigning the duty at all, the Authority found that the disputed
portion of the proposal directly interfered with management's right to
assign work. The Authority further found that the proposal was not an
appropriate arrangement in that it excessively interfered with
management's right to assign work.
Proposal 16 provides that smoking employees shall not be
discriminated against in any way, shape, manner, or form. Noting that
there is nothing in the record to establish that the sentence is
intended to require the Agency to take any action, or refrain from
taking any action, but merely sets forth a general statement, the
Authority concluded that there is no basis for finding it nonnegotiable.
Proposal 19 provides that the Department shall provide smoking
shelters that will be accessible to, and secured for, employees only.
At the outset of its analysis, the Authority refused to consider the
contention that the proposal was inconsistent with the FSIP's decision
and order, stating that questions such as those concerning the effect of
a Panel decision should be resolved in other appropriate proceedings.
The Authority then concluded that the proposal concerns conditions of
employment of bargaining unit employees, noting that it applies to such
employees and concerns implementation of the Agency's proposed
smoke-free environment in its medical facilities. Finally, the
Authority concluded that the proposal does not interfere with the
Agency's right to determine its mission or the technology, methods and
means of performing work. Accordingly, the proposal was found to be
negotiable.
Proposal 33 provided that Professional/Licensed employees shall not
be required to put their License in jeopardy to comply with the smoke
free policy, i.e., if no relief for these employees to leave their unit,
DSA's shall be provided for such employees in close proximity to their
responsibilities. Noting that the proposal concerns the location of
indoor designated smoking areas, the Authority found that it did not
interfere with the right to assign work and it was negotiable.
Case No. 0-NG-1876
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL VETERANS
ADMINISTRATION COUNCIL
(Union)
U.S. DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C.
(Agency)
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) and involves five
proposals. /1/ The five proposals concern implementation of the
Agency's decision to establish a smoke-free environment in the Agency's
medical facilities.
For the following reasons, we conclude that the first proposal in
dispute, Proposal 14, which permits employees to refuse to follow a
physician's orders permitting a patient to smoke in a smoke-free unit,
excessively interferes with management's right under section 7106(a)(
2)(B) of the Statute to assign work. The portion of the second proposal
remaining in dispute, Proposal 15, which provides that only volunteers
will be required to accompany patients who wish to smoke to an outside
smoking shelter, excessively interferes with management's right to
assign work. The sentence remaining in dispute in the third proposal,
Proposal 16, which provides that employees who smoke will not be
discriminated against, is negotiable. The fourth proposal, Proposal 19,
which obligates the Agency to provide smoking shelters that are
accessible to and secured for employees only, is negotiable. The last
proposal, Proposal 33, which requires the Agency to provide designated
smoking areas for certain employees in close proximity to their duty
locations, is negotiable.
The dispute in this case arose when the Agency sought to establish a
smoke-free environment in its medical facilities. After the parties
reached impasse on implementation of the proposed smoke-free policy the
Union sought assistance from the Federal Service Impasses Panel (the
Panel).
In order to resolve the impasse, the Panel ordered the parties to
adopt the Agency's proposed smoke-free policy as modified to require the
Agency, as relevant in this case, to provide and maintain "reasonably
accessible designated smoking areas (DSA) at each of its medical
facilities where the smoke-free policy is implemented." Department of
Veterans Affairs, Veterans Health Service and Research Administration,
Washington, D.C. and National Council, American Federation of Government
Employees, AFL-CIO, Case No. 89 FSIP 198 at 2 (1990) (Veterans Health
Service and Research Administration). The Panel stated further, that
these designated smoking areas "shall be maintained until such time as
the (Agency) provides reasonably accessible outside smoking shelter(s) .
. . (which) shall accommodate smoking as well as protect the user
against the local weather conditions." Id. In addition, the Panel
ordered that "(d)isputes with respect to the adequacy of the smoking
shelter, and the accessibility of the shelter and interim DSAs, . . . be
resolved through the negotiated grievance and arbitration procedures in
the master agreement." Id.
Thereafter, the Agency alleged that it had no duty to bargain on 22
of the 33 proposals submitted by the Union concerning implementation of
the smoke-free policy and the Union filed an appeal with the Authority
as to the 22 proposals remaining in dispute. Subsequently, in its reply
brief, the Union withdrew from its appeal the last sentence of Proposal
15, the last two sentences of Proposal 16, and 17 other proposals in
their entirety.
The Authority will consider only the five proposals, in whole or in
part, remaining in dispute. The sentence withdrawn from Proposal 15,
the two sentences withdrawn from Proposal 16, and the 17 other proposals
withdrawn will not be addressed further.
On smoke free units, physician's orders to allow smoking for a
certain patient need not be honored by Nursing staff. That shall
constitute an improper order.
A. Positions of the Parties
1. The Agency
The Agency contends that the right to assign work under section
7106(a)(2)(B) of the Statute includes the right to determine the
specific duties to be performed by particular employees. Consequently,
the Agency argues that by prohibiting management from assigning
employees to allow patients to smoke under the limited exception to the
Agency's smoke-free policy, the proposal interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute. The
Agency also asserts that the decision to permit certain patients to
smoke "involves the determination of the (Agency's) mission and the
technology, methods and means of performing work." Statement of Position
at 18. Finally, the Agency contends that to the extent that the
proposal would insulate employees from discipline for refusing to
perform a work assignment, it directly interferes with the Agency's
right to discipline employees under section 7106(a)(2)(A) of the
Statute.
2. The Union
The Union contends first that the proposal "does not speak to or
prohibit (the Agency) from assigning employees to allow patients to
smoke under (the Agency's) 'limited exceptions'" to the smoke-free
policy. Reply Brief at 2 (emphasis in original). Rather, according to
the Union, the intent of the proposal "is to clearly prohibit physicians
from circumventing (the Agency's) stated policy on SMOKE FREE UNITS . .
. ." Id. Further, the Union claims that employees already have
authority to request a determination through their chain of command that
an order is illegal, improper, or harmful to a patient and that,
"(u)ntil clarified as being consistent with hospital policy or other
governing laws or regulations, said improper orders need not be
honored." Id. The Union argues that as the right to assign work does
not include the right to order employees to engage in acts contrary to
policy, law, rule, or regulation, the proposal is consistent with the
Agency's regulations concerning the determination of the propriety of a
disputed work order.
The Union also argues that the Agency "fails to show or even address"
how the proposal interferes with the Agency's right to determine the
technology, methods and means of performing work. Id. Similarly, the
Union asserts that the Agency fails to show how the proposal interferes
with the Agency's right to determine its mission.
Further, the Union disputes the Agency's claim that the proposal
insulates employees from discipline. Instead, the Union contends that
if higher level Agency management orders an employee to follow an order
that is challenged as being improper, "the employee would have to follow
the improper order and seek relief from a third party . . . ." Id. at 3.
Finally, although the Union claims generally that all of its
proposals "are arrangements to protect both smoking and non-smoking
employees in response to a very radical change in conditions of
employment(,)" the Union provided no arguments directed specifically to
Proposal 14. Id. at 5.
B. Analysis and Conclusions
For the reasons that follow, we find that Proposal 14 excessively
interferes with management's right under section 7106(a)(2)(B) of the
Statute to assign work.
1. Right to Assign Work
Proposals that preclude management from requiring employees to
perform certain duties or restrict management's ability to assign duties
directly interfere with an agency's right to assign work under section
7106(a)(2)(B) of the Statute. See, for example, National Federation of
Federal Employees, Local 1655 and Department of Military Affairs,
Illinois Air National Guard, 35 FLRA 815, 816-20 (1990) (Illinois Air
National Guard) (proposals 1-4 and 6 imposing conditions on,
restricting, or prohibiting the assignment of work to employees found to
be nonnegotiable).
We find that Proposal 14 directly interferes with management's right
under section 7106(a)(2)(B) to assign work. The plain wording of
Proposal 14 permits employees to "not honor" particular work
assignments. The Union states, in this regard, that its objective is
"to clearly prohibit physicians from circumventing (the Agency's) stated
policy on SMOKE FREE UNITS . . . ." Reply Brief at 2. However, by
providing that employees on smoke-free units "need not" honor
physician's orders permitting patients to smoke, Proposal 14 precludes
the Agency from assigning employees to allow patients on smoke-free
units to smoke. As such, the proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
2. Appropriate Arrangement
To determine whether a proposal constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute it is necessary to
determine whether the proposal is: (1) intended to be 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 management's right. National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24,
31-33 (1986) (Kansas Army National Guard).
Other than its general claim that all of its "proposals are
arrangements to protect both smoking and non-smoking employees" the
Union did not provide any specific arguments concerning whether Proposal
14 constitutes an appropriate arrangement under section 7106( b)(3) of
the Statute. Nevertheless, even assuming that Proposal 14 is intended
as an arrangement for employees adversely affected by the exercise of
management's right to assign work, the proposed arrangement excessively
interferes with management's right to assign work. Proposal 14 would
ameliorate any adverse effects from the exercise of management's right
to assign a specific duty by precluding management, in all instances,
from assigning that duty in the first place. A proposal that "precludes
an agency from exercising() a management right inherently cannot
constitute an appropriate arrangement." Department of The Treasury, U.S.
Customs Service and National Treasury Employees Union, 37 FLRA 309, 314
(1990). We conclude, therefore, that Proposal 14 excessively interferes
with management's right to assign work and is nonnegotiable. In view of
this finding, it is unnecessary for us to consider the Agency's
additional arguments concerning the negotiability of Proposal 14.
If a patient on a smoke free unit desires to smoke and cannot go
to an outside shelter, only volunteer staff shall be required to
accompany patient to shelter. There shall be no coercion to do
so. (Only the portion remaining in dispute is set forth above.)
A. Positions of the Parties
1. The Agency
The Agency argues that because Proposal 15 "limits the work
assignment of escorting (patients) to . . . outside smoking shelters to
volunteers(,)" the proposal violates management's right under section
7106(a)(2)(A) to assign work. Statement of Position at 18-19. In
addition, in its allegation of nonnegotiability, the Agency alleged,
without further elaboration, that the proposal also violated its right
under section 7106(a)(2)(A) of the Statute to assign employees.
2. The Union
The Union argues that Proposal 15 constitutes an appropriate
arrangement to safeguard the health of employees. That is, the Union
asserts that during negotiations, and during impasse proceedings before
the Panel concerning the Agency's proposed implementation of a
smoke-free environment in its medical facilities, the Agency produced
evidence to indicate "that there is absolutely no safe level of
environmental (t)obacco smoke (ETS)." Reply Brief at 3. Thus, according
to the Union, Proposal 15 "ensures that management cannot order its
employees into imminent danger situations( )" resulting from "having to
inhale E.T.S. in a patient's smoking shelter." Id.
B. Analysis and Conclusions
1. Right to Assign Work
It is well established that management's right to assign work
includes the right to determine the particular qualifications and skills
necessary to perform the work and the right to make judgments in
determining whether particular employees meet those qualifications.
See, for example, American Federation of Government Employees, Local 85
and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA
400 (1987) (Proposal 5) (Veterans Administration Medical Center,
Leavenworth). Proposals that provide for selecting a particular
employee to perform work, from a group of employees who are determined
by management to be qualified, are negotiable. See, for example,
National Federation of Federal Employees, Local 797 and Department of
the Navy, 29 FLRA 333, 336-38 (1987) (Provision 3) (provision requiring
agency to request volunteers for specified details found to be
negotiable because the provision applied only in situations in which
management determined that more than one employee possessed the
requisite qualifications and management retained the discretion to
determine: (1) the qualifications necessary to perform the duties of
the detail; (2) whether the volunteer had the necessary qualifications;
and (3) the right to assign whomever it wished to detail if the
volunteer procedure did not meet the needs of the agency); American
Federation of Government Employees, Council of Social Security District
Office Locals and Department of Health and Human Services, Social
Security Administration, 11 FLRA 608, 609-11 (1983) (Proposal 2)
(proposal providing that employees be allowed to volunteer to perform a
particular duty before any of the employees was required to perform the
work found to be negotiable as the proposal did not prohibit the agency
from making qualifications determinations or require that any volunteer
be selected but permitted the agency to select non-volunteers).
On the other hand, proposals that prevent an agency from assigning
particular duties to qualified employees directly interfere with the
agency's right to assign work under section 7106(a)(2)(B) of the
Statute. See, for example, American Federation of Government Employees,
Local 2761 and Department of the Army, Army Publications Distribution
Center, St. Louis, Missouri, 32 FLRA 1006, 1016-18 (1988) (Provision 6)
(provision restricting the assignment of a specified duty to volunteers
only found to directly interfere with the agency's right to assign
work); Overseas Education Association, Inc. and Department of Defense
Dependents Schools, 29 FLRA 734, 783-84 (1987) (Proposal 41) (Department
of Defense Dependents Schools) enforced as to other matters sub nom.
Department of Defense Dependent Schools v. FLRA, No. 87-1735 (D.C. Cir.
June 22, 1990) (unpub. en banc order), aff'd as to other matters sub
nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C.
Cir. 1988), (proposal providing that a particular work assignment would
be voluntary found to violate management's right to assign work because
it would deprive the agency of its right to assign particular employees
whom it deemed qualified). See also Veterans Administration Medical
Center, Leavenworth, 30 FLRA at 405-06 (portion of Proposal 5 requiring
that overtime be assigned first to volunteers and then, if insufficient
volunteers existed, to nonvolunteers based on inverse seniority found to
be inconsistent with management's right to assign work because there was
nothing in the record to establish that management would be able to make
qualifications determinations when assigning overtime).
Proposal 15 would require the Agency to assign the task of escorting
patients to outside smoking shelters to volunteers. The first sentence
provides, in this regard, that "only volunteer staff shall be required
to accompany patient to shelter" and the second sentence provides that
there will be "no coercion" to perform the assignment. As plainly
worded, therefore, the two disputed sentences would make a specified
work assignment totally voluntary. If insufficient volunteers existed,
the Agency would be precluded from assigning the duty at all. This
restriction on the Agency's right to assign a particular duty directly
interferes with management's right under section 7106(a)(2)(B) of the
Statute to assign work. See Department of Defense Dependents Schools.
2. Appropriate Arrangement
The Union asserts that the two disputed sentences constitute an
appropriate arrangement under section 7106(b)(3) of the Statute to
"safeguard the health" of employees. Reply Brief at 3. That is,
according to the Union, there is no safe level of environmental tobacco
smoke. Thus, the Union argues that Proposal 15 "ensures that management
cannot order its employees into imminent danger situations( )" resulting
from having to inhale environmental tobacco smoke in a patient's smoking
shelter. As described by the Union, the proposal is intended to offset
any adverse effects on employees of being exposed to second hand smoke
by making voluntary the assignment of escorting patients to outdoor
smoking shelters. Consistent with the Union's statement, 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, it is
necessary to determine whether the arrangement is appropriate within the
meaning of section 7106(b)(3). To do so, we determine whether the
proposal excessively interferes with management's rights: whether the
negative impact on management's right to assign work is disproportionate
to the benefits conferred by the proposal on employees. See Kansas Army
National Guard, at 33. See also National Federation of Federal
Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities
Engineering Command, Western Division, 36 FLRA 834, 841 (1990).
With regard to the "appropriateness" of the arrangement, we note that
Proposal 15 does not merely require the Agency to seek volunteers before
assigning the disputed task to nonvolunteers. Rather, the proposal
makes the assignment completely voluntary. As stated previously, if
insufficient qualified volunteers exist, the Agency would be unable to
assign the work. In our view, the proposal's negative impact on
management's right to assign work is disproportionate to the benefits to
employees of having possible exposure to second hand smoke reduced or
eliminated. See, for example, Federal Employees Metal Trades Council
and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 38 FLRA 1410, 1416 (1991) petition for review filed sub nom.
Federal Employees Metal Trades Council v. FLRA, No. 91-70168 (9th Cir.
Mar. 5, 1991) (Provision 2) (provision limiting management's right to
detail in certain circumstances found to excessively interfere with
management's right to assign employees).
Consequently, we conclude that the first sentence remaining in
dispute in Proposal 15 excessively interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute. The second
disputed sentence is inextricably linked to the first sentence. We
conclude, therefore, that both sentences are nonnegotiable. In view of
our finding that Proposal 15 excessively interferes with the Agency's
right to assign work, we do not consider the Agency's additional
argument concerning the negotiability of the proposal.
Smoking employees shall not be discriminated against in any way,
shape, manner, or form. (If an employee is smoking outside of a
DSA in a smoke free facility, said employee shall be instructed as
to where the DSA's are. No penalty shall apply (the Administrator
cannot collect fines).) (The bracketed portion has been withdrawn
by the Union.)
A. Position of the Parties
1. The Agency
The Agency makes no specific claim that the first sentence's
requirement that the Agency not discriminate against employees who smoke
is inconsistent with law, rule or regulation. Instead, the Agency's
claims relate solely to the now-withdrawn third sentence. In
particular, although the Agency asserts that Proposal 16 is inconsistent
with its rights to determine its mission and its internal security
practices as well as its right to discipline employees, the assertions
relate solely to a prohibition, contained in the now-withdrawn third
sentence, on the imposition of monetary fines for violations of the
Agency's smoke-free policy.
2. The Union
As noted previously, the Union withdrew from consideration by the
Authority the second and third sentences of the proposal. As to the
first sentence, the Union states that it "is self explanatory and (the
Union) would hope that (the Agency) would withdraw their objections to
(the first sentence)." Reply Brief at 3. The Union claims that "(t)he
obverse of (the first sentence) would be that (the Agency) could
discriminate against employees because they smoke . . . ." Id.
Finally, although the Union claims generally that all of its
proposals constitute appropriate arrangements, the Union did not provide
any specific arguments related to the first sentence of Proposal 15.
B. Analysis and Conclusions
The Agency makes no specific claim that the first sentence's
requirement that the Agency not discriminate against employees who smoke
is inconsistent with law, rule or regulation. Instead, the Agency's
claims relate solely to the now-withdrawn third sentence.
Moreover, there is nothing in the record to establish that the first
sentence is intended to require the Agency to take any action, or
refrain from taking any action, with respect to smoking employees that
would be inconsistent with law, including the Statute, or
Government-wide regulation. Rather, the first sentence merely sets
forth a general statement that the Agency will not discriminate against
employees based on their status as smokers. Therefore, as no basis for
finding the sentence nonnegotiable is asserted by the Agency or is
apparent to us, we conclude that the first sentence is negotiable.
The Department shall provide smoking shelters that will be
accessible to, and secured for, employees only.
A. Positions of the Parties
1. The Agency
The Agency claims first that Proposal 19 interferes with its rights
under section 7106 of the Statute to determine its mission and the
technology, methods and means of performing work. In this regard, the
Agency states that because it "has determined as a part of its patient
care mission that its medical facilities must be free of tobacco smoke,
. . . (with) a limited exception to indoor smoking only for certain
patients(,) (o)ther patients wishing to smoke must go outside."
Statement of Position at 21. Further, according to the Agency,
"shelters are a device or way (the Agency) accomplishes its medical
treatment mission in a smoke-free environment." Id. Consequently, the
Agency claims that "(r)restricting their access to shelters used by
employees directly interferes with (the Agency) using the shelters as a
device to protect patients from the elements." Id.
The Agency also claims that "making the shelters accessible to
patients does not involve employment conditions because it does not
arise from the employment relationship." Id.
Finally, the Agency argues that the proposal conflicts with the
Panel's order requiring "shelter accessibility and adequate issues to be
resolved through the grievance procedure." Id. at 21-22.
2. The Union
As to the Agency's contentions that Proposal 19 interferes with
various management's rights, the Union argues first that the Agency's
position before the Authority is inconsistent with the Agency's position
at the Panel's factfinding hearing. According to the Union, one Agency
official testified at the Panel factfinding hearing that it would be
improper for employees to subtly encourage smoking by smoking in front
of patients. Further, the Union states that another Agency official
testified that separate patient and employee smoking shelters had been
negotiated at a particular Agency medical facility.
Second, the Union argues that the Agency has not addressed "how there
is a direct relationship between this 'methods and means' used by the
(Agency) and the mission of the (Agency)." Reply Brief at 3. Further,
the Union asserts that the Agency "does not show that this proposal
would directly interfere with the mission-related purpose for which the
(Agency) uses this 'method of doing work' . . . ." Id.
The Union also contends that requiring "employees to take their smoke
breaks with acutely ill patients, some of whom have infectious diseases,
. . . is inconsistent with current infection control policies of the
(Agency)." Id. at 3-4. Consequently, the Union asserts that the
Agency's claims must be dismissed based on the Agency's change of
position and on "the potential danger to the employees." Id. at 4. The
Union also states that the proposal "most assuredly relates to
conditions of employment." Id.
Although the Union claims generally that all of its proposals
constitute appropriate arrangements, the Union did not provide any
specific arguments related to Proposal 19.
B. Analysis and Conclusions
1. Preliminary Matter
The Agency's assertion that Proposal 19 is inconsistent with the
Panel's decision and order raises an issue that we do not entertain in
negotiability proceedings. Under part 2424 of the Authority's Rules and
Regulations, our review is limited to questions of whether a matter
proposed for bargaining is inconsistent with law, rule or regulation.
Questions such as those concerning the effect of a Panel decision should
be resolved in other appropriate proceedings. See, for example,
National
(ILLEGIBLE)
In asmuch as the proposal's effect on smoking patients is not a
factor in making a negotiability determination, we reject the Agency's
claim that it has no duty to bargain over the proposal because the
proposal affects smoking patients. Rather, consistent with, among other
decisions, Indian Health Service, we conclude that the proposal vitally
affects working conditions of bargaining unit employees and is
negotiable unless it conflicts with management's rights as alleged by
the Agency.
3. Proposal 19 Does Not Directly Interfere with the Agency's Rights
to Determine its Mission or the Technology, Methods and Means of
Performing Work
We reject the Agency's claims that by precluding patient access to
outdoor employee smoking shelters, Proposal 19 directly interferes with
the Agency's right under section 7106(a)(1) of the Statute to determine
its mission and with its right under section 7106(b)(1) of the Statute
to determine the technology, methods and means of performing work.
First, as indicated in the Factfinder's Report which was attached to
the Panel's decision in Veterans Health Service and Research
Administration, the Agency's mission is to develop, maintain, and
operate a national health care delivery system for eligible veterans;
carry out a program of medical care research and education and training
of health care personnel; and furnish health services to members of the
Armed Forces during a war or national emergency. Nothing in Proposal 19
conflicts with or even concerns the Agency's mission. Rather, Proposal
19 merely involves access to employe outdoor smoking shelters.
Consequently, we conclude that the Agency has not established that
Proposal 19 directly interferes with the Agency's right under section
7106(a)(1) to determine its mission.
Second, we find that the Agency has not established that Proposal 19
directly interferes with its right under section 7106(b)(1) to determine
the technology, methods and means of performing work. In this regard,
the Authority employs a two-part test to determine whether a proposal
directly interferes with management's right to determine the
"technology" used in "performing work." In order to sustain such a
claim, an agency must show: (1) the technological relationship of the
matter addressed by the proposal to accomplishing or furthering the
performance of the agency's work; and (2) how the proposal would
interfere with the purpose for which the technology was adopted. See,
for example, Indian Health Service at 506.
As to the "methods" and "means" of "performing work," the Authority
has construed "method" as referring to the way in which an agency
performs its work. Id. at 406. "Means" refers to any instrumentality,
including an agent, tool, device, measure, plan or policy used by an
agency for the accomplishment or furtherance of its work. Id. at 407.
The term "performing work" is intended to include those matters that
directly and integrally relate to the agency's operations as a whole.
Id.
The Authority also employs a two-part test to determine whether a
proposal violates management's right to determine the "methods and means
of performing work." First, an agency must show a direct relationship
between the particular method or means the agency has chosen and the
accomplishment of the agency's mission. Second, the agency must show
that the proposal would directly interfere with the mission-related
purpose for which the method or means was adopted. See, for example,
National Treasury Employees Union, Chapter 83 and Department of the
Treasury, Internal Revenue Service, 35 FLRA 398, 406-09 (1990).
Here, the Agency claims that "outdoor (smoking) shelters are a device
or way (the Agency) acomplishes its medical treatment mission in a
smoke-free environment." Statement of Position at 21. Assuming, without
deciding, that the use of outdoor smoking shelters constitutes the
"technology," or the "method" or "means," of "performing work," the
Agency has not established how Proposal 19 would directly interfere with
the mission-related purpose for which the technology or method or means
was adopted. That is, Proposal 19 does not in any manner conflict with
the Agency's decision to use outdoor smoking shelters in furtherance of
a smoke-free environment in its medical facilities. Nothing in Proposal
19 precludes the use of outdoor smoking shelters or prevents the Agency
from either constructing separate outdoor patient smoking shelters or
from arranging outdoor smoking shelters into separate employee-only and
patient-only sections. Rather, Proposal 19 only concerns restricting
access to outdoor employee smoking shelters to employees only.
Consequently, we conclude that Proposal 19 does not directly
interfere with the Agency's right to determine the technology, methods
and means of performing work within the meaning of section 7106(b)(1) of
the Statute.
4. Summary
The Agency's assertion that Proposal 19 is inconsistent with a Panel
decision raises an issue that is not appropriate for resolution in a
negotiability proceeding. Further, inasmuch as Proposal 19 vitally
affects working conditions of bargaining unit employees, the proposal's
alleged effect on smoking patients is not a factor in determining its
negotiability. Finally, the proposal does not directly interfere with
the Agency's right under section 7106(a)(1) of the Statute to determine
its mission or with the Agency's right under section 7106(b)(1) of the
Statute to determine the technology, methods and means of performing
work. Accordingly, Proposal 19 is negotiable.
Professional/Licensed employees shall not be required to put their
License in jeopardy to comply with the "smoke free policy", i.e.
if no relief for these employees to leave their unit, DSA's shall
be provided for such employees in close proximity to their
responsibilities.
A. Positions of the Parties
1. The Agency
The Agency argues that to the extent that this proposal prohibits the
Agency from requiring employees to work without a break from their
duties it is inconsistent with management's right under section 7106(
a)(2)(B) of the Statute to assign work.
The Agency also claims that the portion of the proposal providing
that employees not be required to put their licenses in jeopardy "is too
vague to permit a negotiability determination." Statement of Position at
25.
Finally, the Agency notes that "licensure is a matter of state law
and regulation" and that "(t)hese state legal requirements are
independent of the (Agency) employment relationship and thus do not
constitute working conditions." Id.
2. The Union
The Union contends that, contrary to the Agency's allegation, the
proposal does not require work-free breaks. The Union states, instead,
that "Proposal 33 is an appropriate arrangement for those employees who
cannot be relieved of their duties to travel to an outside smoking
area." Reply brief at 4.
In support of its position that the proposal constitutes an
appropriate arrangement, the Union argues as follows. First, the Union
asserts that on many nursing units, especially during the evening and at
night, there are only two staff persons assigned to tend to patient
needs. According to the Union, if one of the employees is required to
go to a remote smoking area for a smoke break, patients would be left in
an unsafe condition. The Union also states that in case of an
emergency, it would be a dereliction of duty for an employee to leave
the unit attended by only one employee. The Union notes, in this
regard, that as the Agency "has proposed the remote smoke areas(,) (the
Agency) must make arrangements for them to be used or they are a sham
and a subterfuge." Id. The Union also claims that as a large number of
patients will be permitted to smoke inside, "retaining a designated
smoking area so that a health care provider can stay close by the
nursing unit on off tours is not such an onerous requirement." Id. On
the other hand, the Union argues that "(r)equiring one of two employees
to become derelict in their duties to go to a remote smoking area
without proper relief would endanger the patients' welfare and put (the
employee's) license in jeopardy if an incident arose while the licensed
employee is at a remote site." Id. Thus, the Union concludes that the
proposal is an appropriate arrangement "to safeguard a licensed
employee's license." Id.
Finally, the Union disputes the Agency's claim that state licensing
requirements do not constitute working conditions. The Union asserts
that under Agency regulations, licensing requirements are "a condition
of employment in the (Agency)." Id. at 5 (emphasis in original).
B. Analysis and Conclusions
As indicated with regard to Proposal 19 above, proposals concerning
the implementation of an agency's smoking policy involve conditions of
employment of bargaining unit employees. Thus, Proposal 33 is
negotiable unless it is otherwise inconsistent with the Statute, as
alleged by the Agency. Here, the Agency claims that because the
proposal prohibits the Agency from requiring employees to work without a
break from their duties, it interferes with management's right under
section 7106(a)(2)(B) of the Statute to assign work. We reject the
Agency's contention. Nothing in Proposal 33, or in the record in this
case, indicates that Proposal 33 contemplates a prohibition on requiring
employees to work without a break. Rather, Proposal 33 solely concerns
the location of indoor designated smoking areas in the Agency's medical
facilities. Therefore, Proposal 33 does not directly interfere with the
Agency's right under section 7106(a)(2)(B) of the Statute to assign
work.
We also reject the Agency's claims that the portion of the proposal
providing that "Professional/Licensed employees shall not be required to
put their License in jeopardy" is too vague to permit a negotiability
determination and or does not concern conditions of employment of
bargaining unit employees. In our view, the disputed wording merely
constitutes an introductory clause to the proposal's requirement that
designated smoking areas be located close to work areas. Moreover,
nothing in the proposal requires the Agency to bargain about state or
Agency licensing requirements.
Consequently, as the Agency has raised no other arguments concerning
the negotiability of Proposal 33, we conclude that Proposal 33 is
negotiable.
The petition for review as to Proposal 14 and the portion of Proposal
15 remaining in dispute is dismissed. The Agency shall upon request, or
as otherwise agreed to by the parties, negotiate over the sentence of
Proposal 16 remaining in dispute and Proposals 19 and 33. /2/
(1) Each of the five proposals in dispute is identified in this
decision by the proposal number used by the parties.
(2) In finding the portion of Proposal 16 remaining in dispute and
Proposals 19 and 33 to be negotiable, we make no judgment as to their
merits.
40 FLRA 1048
40 FLRA NO. 94
NTEU and Federal Deposit Insurance Corporation, Chicago, Illinois,
Cases No. 0-MC-13-002 and 0-MC-14-002 (Decided May 29, 1991)
MOTION FOR STAY OF FEDERAL SERVICE IMPASSES PANEL CASE
VACATING OF STAY
The Authority had granted the Agency's motions for stays of orders
issued by the Federal Service Impasses Panel (FSIP), until such time as
the Court of Appeals ruled in specified pending cases. As the court has
now ruled on those cases, the Authority vacated the earlier granted
stays.
Case Nos. 0-MC-14-002, 0-M-14-002
NATIONAL TREASURY EMPLOYEES UNION
(Union)
FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO, ILLINOIS
(Agency)
NATIONAL TREASURY EMPLOYEES UNION
(Union)
FEDERAL DEPOSIT INSURANCE CORPORATION
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
On June 8, 1988, the Agency filed motions for stays of orders issued
by the Federal Service Impasses Panel (Panel) in Case Nos. 88 FSIP 89
and 88 FSIP 92. Because the motions involved the same parties and
presented the same issues for the Authority's consideration, they were
consolidated for decision. In the unique circumstances of the
consolidated cases, the Authority granted the motions for stays of the
Panel's orders. National Treasury Employees Union and Federal Deposit
Insurance Corporation, Chicago, Illinois, 32 FLRA 1131 (1988) (NTEU and
FDIC, Chicago).
For the following reasons, the stays of the Panel's orders are
vacated.
The underlying dispute between the parties related to the Union's
bargaining proposals regarding wages and money-related fringe benefits
for bargaining unit employees. The Panel's orders directed the parties
to "submit the issues in dispute to an (interest) arbitrator (of) their
choice for a binding decision(.)" Federal Deposit Insurance Corporation,
Chicago, IL and NTEU, Case No. 88 FSIP 89 (May 24, 1988); Federal
Deposit Insurance Corporation, Washington, DC and NTEU, Case No. 88 FSIP
92 (May 24, 1988).
The Agency requested the Authority to stay the Panel's orders because
the Union's proposals that were the subject of the Panel's orders were
similar to the proposals that were at issue in cases then awaiting
decision by the U.S. Court of Appeals for the District of Columbia
Circuit. For the reasons set forth in NTEU and FDIC, Chicago, the
Authority granted the Agency's motions for stays of the Panel's orders
in Case Nos. 88 FSIP 89 and 88 FSIP 92 until such time as the court
ruled in the pending cases.
On February 25, 1991, the court issued orders in those cases. In
FLRA v. Federal Deposit Insurance Corporation, Nos. 87-1716 and 88-1005
(D.C. Cir. Feb. 25, 1991) (per curiam) (FLRA v. FDIC 1), the court
vacated the Authority's decision in National Treasury Employees Union,
Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.
C., 28 FLRA 625 (1987) (Chairman Calhoun dissenting), reconsideration
denied, 29 FLRA 1465 (1987) (Chairman Calhoun dissenting) (NTEU 1) and
remanded the case to the Authority with instructions to dismiss the case
as moot. On remand, the Authority vacated its decision in NTEU 1 as
moot. National Treasury Employees Union, Chapter 207 and Federal
Deposit Insurance Corporation, Washington, D.C., 40 FLRA No. 81 (1991).
In dismissing the case, the Authority noted that the proposal required
employee salary increases to be based upon the recommendation of the
Federal Employees Pay Council, an entity abolished by the Federal
Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, sec. 529
(1990).
In FLRA v. Federal Deposit Insurance Corporation, Nos. 87-1717 and
88-1006 (D.C. Cir. Feb. 25, 1991) (per curiam) (FLRA v. FDIC 2), the
court granted the Authority's motion for summary enforcement of the
Authority's decision in National Treasury Employees Union, Chapter 207
and Federal Deposit Insurance Corporation, Washington, D.C., 28 FLRA 738
(1987) (Chairman Calhoun dissenting), reconsideration denied, 29 FLRA
1465 (1987) (Chairman Calhoun dissenting) (the Authority found a
proposal on money-related fringe benefits for bargaining unit employees,
such as dental care, to be negotiable). The court granted the
Authority's motion based on the Supreme Court's decision in Fort Stewart
Schools v. FLRA, 110 S. Ct. 2043 (1990). In that decision, the Supreme
Court, affirming the Authority's underlying order, held that
money-related fringe benefits were conditions of employment over which
management was required to bargain.
A. The Agency
Following the issuance of the court's decisions in FLRA v. FDIC 1 and
FLRA v. FDIC 2, the Agency filed a motion for the Authority to direct
the Panel to withdraw its orders in Case Nos. 88 FSIP 89 and 88 FSIP 92
directing the parties to binding arbitration. The Agency contends that
the Authority should direct the Panel to withdraw its orders regarding
the Union's salary proposal because the court found that the proposal
was moot and directed the Authority to vacate its underlying order of
negotiability.
As to the proposal over money-related fringe benefits at issue in 88
FSIP 89, the Agency notes that both the Authority and the court have now
found the proposal to be negotiable. The Agency argues that because the
parties have never negotiated over the proposal, the Agency should be
provided an opportunity to "engage in collective bargaining with the
(Union) over this proposal prior to assertion of Panel jurisdiction."
Agency's Motion at 4. The Agency asserts that Panel jurisdiction is
only appropriate once the parties have failed to reach an agreement and
an impasse is declared by the Federal Mediation and Conciliation
Service. The Agency maintains that because no bargaining has occurred
over this proposal, the matter is not ripe for Panel jurisdiction.
B. The Union
The Union submitted a response to the Agency's motion. The Union
states that the Authority's order staying the Panel's orders should be
vacated because the cases that were then pending before the court are no
longer pending.
The Union contends that once the stays of the Panel's orders are
vacated, the Authority is no longer involved in the matter. Absent the
unusual circumstances described in the Authority's order staying the
Panel's orders, the Union argues that the Authority does not have the
power to review Panel orders. The Union states that once the stays of
the Panel's orders are vacated, the Agency can ask the Panel to
reconsider its orders and can submit its arguments directly to the
Panel.
In the Authority's decision to grant the motions to stay the Panel's
orders in Case Nos. 88 FSIP 89 and 88 FSIP 92, the Authority "stay(ed)
the Panel's orders until such time as the U.S. Court of Appeals for the
District of Columbia Circuit rule(d) in the pending cases referenced
above." NTEU and FDIC Chicago, 32 FLRA at 1140. The Authority stated
that "the Panel's orders directing the parties to interest arbitration
on the same matters that are before the court should not be effectuated
at this time because to do so could frustrate the statutory procedures,
including the role of the judicial review process, for the resolution of
negotiability disputes." Id. at 1139. The court has now ruled in the
related cases that were pending before it. Therefore, the continued
stays of the Panel's orders are not warranted.
Accordingly, the stays of the Panel's orders in Case Nos. 88 FSIP 89
and 88 FSIP 92 will be vacated. The parties may submit appropriate
motions to the Panel regarding the further processing of any matters
relating to these cases.
Because this decision takes no action beyond vacating the stays of
the Panel's orders, we need not, and do not, address the issue of
whether the Authority has jurisdiction to reverse or modify a Panel
order absent unique circumstances.
The stays of the Panel's orders in Case Nos. 88 FSIP 89 and 88 FSIP
92 are vacated.
40 FLRA 1044
40 FLRA NO. 93
Dept. of the Treasury, United States Mint, Philadelphia, Pennsylvania
and AFGE, Local 1023 (Seltzer, Arbitrator), Case No. 0-AR-2070 (Decided
May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
CONTRARY TO LAW, RULE, OR REGULATION
The grievant was absent from work for 5 days due to illness. Because
the grievant assertedly had not complied with the procedures for
requesting sick leave, the Agency did not approve his sick leave request
and charged him with 5 days of absence without leave (AWOL). The
Arbitrator concluded that the 5 days of AWOL was excessive and that 4
days of AWOL was appropriate.
The Authority sustained the award, rejecting the Union's contention
that the award is contrary to law, rule or regulation as the Union had
provided no basis for its contention.
Case No. 0-AR-2070
U.S. DEPARTMENT OF THE TREASURY, UNITED STATES MINT, PHILADELPHIA,
PENNSYLVANIA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1023
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Louis E. Seltzer 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.
The grievant was absent from work for 5 days due to illness. Because
the grievant assertedly had not complied with the procedures for
requesting sick leave, the Agency did not approve his sick leave request
and charged him with 5 days of absence without leave (AWOL). The
Arbitrator concluded that 5 days of AWOL was excessive and that 4 days
of AWOL was appropriate.
We conclude that the Union fails to establish that the award is
deficient and we will deny the exceptions.
On Monday morning, October 30, 1989, the grievant began phoning his
department to advise that he would not be at work due to illness. After
30 minutes without reaching his department and because of his illness,
he gave a friend instructions and had her phone his department. He
advised his friend to phone his immediate supervisor and, if the
supervisor could not be reached, to speak either to his general foreman
or to the time and attendance clerk. The time and attendance clerk
answered the phone call from the grievant's friend. The time and
attendance clerk advised her that the grievant's supervisor was not
available, but that another supervisor was available. The grievant's
friend declined to speak to the other supervisor and advised the clerk
that the grievant was home sick and requested sick leave. The
grievant's friend did not leave a telephone number with the clerk at
which the grievant could be reached.
When the grievant returned to work on Monday, November 6, his sick
leave request was not approved, and he was charged with 5 days of AWOL.
The Agency claimed that the grievant had not complied with the Agency's
call-in procedure because, when his friend failed to reach the
grievant's supervisor, she did not leave a message with another
supervisor and did not provide a telephone number at which the grievant
could be reached by his supervisor and because the grievant failed to
call back during the week of his illness. The grievant filed a
grievance over the AWOL charge. The grievance was not resolved and was
submitted to arbitration.
The Arbitrator concluded that the grievant failed to meet the
specified requirements for requesting and obtaining approval for his
emergency sick leave. The Arbitrator determined that the parties'
collective bargaining agreement and the call-in procedure require
communication with a supervisor that includes providing a telephone
number at which the employee can be reached. The Arbitrator found that
it was undisputed that the grievant's friend did not communicate with a
supervisor and did not provide a telephone number at which the grievant
could be reached. The Arbitrator refused to excuse the failure to
provide a telephone number on the basis that the Agency had the
grievant's telephone number available. The Arbitrator ruled that the
Agency is not obligated to rectify an employee's failure to meet the
requirements of the call-in procedure. The Arbitrator further found
that the failure of the grievant's friend was compounded by the
grievant's failure to call in during the week of his illness and obtain
approval for his leave and to state how long he would be out.
In summary, the Arbitrator held that the grievant knew the procedure,
but did not comply. However, because there was evidence that it was not
uncommon for employees to fail to leave a telephone number where they
could be reached by their supervisors, the Arbitrator found that the
5-day AWOL charge was excessive and that a 4-day AWOL charge was
appropriate. Accordingly, the Arbitrator reduced the charge of AWOL to
4 days and directed that 1 day be charged to sick leave.
The Union contends that the award is contrary to law, rule, and
regulation and fails to draw its essence from the collective bargaining
agreement because nothing in law, rule, regulation, or the agreement
justifies the Arbitrator's conclusion that the grievant failed to meet
the specified requirements for requesting and obtaining approval for his
sick leave. The Union argues that the grievant clearly and fully
complied with all points of the call-in procedure as it has been
consistently interpreted at the Agency.
We conclude that the Union fails to establish that the award is
contrary to any law, rule, or regulation or fails to draw its essence
from the parties' collective bargaining agreement.
The Union provides no basis for finding that the award fails to draw
its essence from the collective bargaining agreement. In order for an
award to be found deficient on this basis, it must be established that
the award: (1) is so unfounded in reason and fact and so unconnected
with the wording and purposes of the collective bargaining agreement as
to manifest an infidelity to the obligation of the arbitrator; (2) does
not represent a plausible interpretation of the agreement; or (3)
cannot in any rational way be derived from the agreement or evidences a
manifest disregard of the agreement. For example, United States
Department of Labor (OSHA) and National Council of Field Labor Locals,
34 FLRA 573, 575 (1990). These tests and the private sector cases from
which they are derived make it clear that an arbitrator's award will not
be found to fail to draw its essence from the agreement merely because a
party believes that the arbitrator misinterpreted the agreement. Id.
The question of the interpretation of the collective bargaining
agreement is a question solely for the arbitrator because it is the
arbitrator's construction of the agreement for which the parties
bargained. Id. at 576.
The Arbitrator's conclusion that the grievant failed to meet the
specified requirements of the parties' collective bargaining agreement
constituted his interpretation and application of the agreement. The
Union fails to show that the Arbitrator's interpretation is irrational,
implausible, or unfounded and provides no basis for finding the award
deficient as failing to draw its essence from the collective bargaining
agreement under any of the tests recognized by the Authority. See id.
Instead, the exception constitutes mere disagreement with the
Arbitrator's interpretation and application of the agreement. As such,
the exception provides no basis for finding the award deficient. See
id.
We also find that the Union fails to establish that the award is
contrary to law, rule, or regulation. Although the Union contends that
the award is contrary to law, no law is cited and no support is
otherwise provided. To the extent that the Union is claiming that the
Agency's call-in procedure constitutes a rule or regulation, we find no
basis for concluding that the award is deficient. The Arbitrator
determined that the call-in procedure requires communication with a
supervisor that includes providing a telephone number at which the
employee can be reached, and the Union fails to establish otherwise.
Furthermore, to the extent that the Union is arguing that the Arbitrator
erred in failing to find that the grievant complied with the established
past practice of the call-in procedure, this argument also provides no
basis for finding the award deficient. The United States Air Force, Air
Logistics Command, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 343
(1987) (contention that the arbitrator erred in not finding the
grievant's actions in accordance with established past practice provided
no basis for finding the award deficient).
Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
40 FLRA 1035
40 FLRA NO. 92
Dept. of Health and Human Services, Austin, Texas and NTEU, Chapter 219 (Craig, Arbitrator) Case No. 0-AR-1905 (Decided May 24, 1991)
7122(a)
7106(a)(2)(A)
ARBITRATION EXCEPTION
SUSPENSION
5 U.S.C. 7503
RIGHT TO DISCIPLINE
ARBITRATOR'S AUTHORITY TO MITIGATE DISCIPLINE
The grievance concerns a 3-day suspension imposed on the grievant for
engaging in rude, disrespectful, and disruptive behavior. The
Arbitrator concluded that the preponderance of the evidence did not
support a 3-day suspension, and mitigated the discipline to a written
reprimand. The Arbitrator further ordered that if the grievant were to
cause a disturbance and/or refuse to perform work within her job
specifications during a specified time period, she would automatically
receive a 5-day suspension without pay. The Arbitrator also retained
jurisdiction on the issue of attorney fees.
The Union and the Agency filed exceptions. The Union excepts to the
Arbitrator's imposition of a written reprimand and to the automatic
5-day suspension. The Agency excepts to the automatic 5-day suspension
and also requests that the Authority remand the case to the Arbitrator
for the purpose of fashioning an appropriate remedy.
The Authority concluded that the portion of the Arbitrator's award
imposing a written reprimand was not deficient. However, the Authority
modified the portion of the award directing an automatic 5-day
suspension for future misconduct, to which both the Union and the Agency
except, because it conflicts with management's right to discipline under
section 7106(a)(2)(A) of the Statute.
The Authority rejected the Union's argument that the Arbitrator
exceeded his authority by imposing the written reprimand after finding
that the grievant had not engaged in the conduct alleged by the Agency.
The Authority noted that an arbitrator may determine whether all or part
of a disciplinary action is not for just and sufficient cause and set
aside or reduce the penalty. In this case, the Arbitrator determined
that a part of the disciplinary action was not based on just cause and
reduced the penalty to a written reprimand.
In addition, the Authority found deficient the portion of the award
directing that a 5-day suspension without pay be imposed on the grievant
if, during the one-year period in which the written reprimand is in
effect, the grievant causes a disturbance in or outside the work area
and/or refuses to perform work within her job specifications. The
Authority noted that the portion of the award directing a future 5-day
suspension improperly interfered with the exercise of management's right
to discipline under section 7106(a)(2)(A) of the Statute. Lastly, the
Authority denied the Agency's request for a remand.
The award is modified to delete that portion which states that "(the
grievant) shall automatically receive a 5 day suspension without pay(,)"
and to add, instead, that "(the grievant) may receive a 5-day suspension
without pay." The Union and Agency exceptions to the other portions of
the award are denied.
Case No. 0-AR-1905
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, AUSTIN, TEXAS
(Agency)
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 219
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Richard B. Craig filed by both the Union and 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. Each party also filed an opposition to the other party's
exceptions.
The grievance concerns a 3-day suspension imposed on the grievant for
engaging in rude, disrespectful, and disruptive behavior. The
Arbitrator concluded that the preponderance of the evidence did not
support a 3-day suspension, and mitigated the discipline to a written
reprimand. The Arbitrator further ordered that if the grievant were to
cause a disturbance and/or refuse to perform work within her job
specifications during a specified time period, she would automatically
receive a 5-day suspension without pay. The Arbitrator also retained
jurisdiction on the issue of attorney fees.
The Union excepts to the Arbitrator's imposition of a written
reprimand and to the automatic 5-day suspension. The Agency excepts to
the automatic 5-day suspension and also requests that the Authority
remand the case to the Arbitrator for the purpose of fashioning an
appropriate remedy.
For the reasons discussed below, we conclude that the portion of the
Arbitrator's award imposing a written reprimand is not deficient.
However, the portion of the award directing an automatic 5-day
suspension for future misconduct, to which both the Union and the Agency
except, conflicts with management's right to discipline under section
7106(a)(2)(A) of the Statute. Accordingly, the award will be modified
to delete that portion and to replace it with a provision that an
automatic 5-day suspension may be imposed. Finally, as there is no
basis on which to grant the Agency's request that the award be remanded,
the request will be denied.
The Agency suspended the grievant for 3 days for being rude and
disrespectful to the members of the Regional Personnel Office (RPO)
staff and for disrupting employees in the RPO with her behavior on
October 19, 1989. The incident apparently was the result of the
grievant's efforts to correct a discrepancy in her paycheck.
The parties stipulated the following issue for resolution before the
Arbitrator:
Whether the suspension of the grievant was only for such cause as
will promote the efficiency of the service? If not what is the
appropriate remedy?
Award at 1.
The Arbitrator determined that the preponderance of the evidence did
not support the 3-day suspension. In this regard, he found that the
testimony adduced at the arbitration hearing did not support
management's position that the grievant was rude and disrespectful to
members of the RPO staff. The Arbitrator found that the evidence
established that the grievant did not curse, threaten or physically
abuse any employee. However, the Arbitrator also found that the
grievant "was upset, demanding, insistant (sic) and determined to do
everything she could to get her money." Id. at 6. As a remedy, the
Arbitrator ordered that the grievant be given a written reprimand that
was to remain in effect for one year from the date of the award. The
Arbitrator further ordered that if, during that one-year period, the
grievant were to cause a disturbance either in or outside her work area
and/or refuse to perform work within her job specifications, she would
automatically receive a 5-day suspension without pay. The Arbitrator
also retained jurisdiction on the issue of attorney's fees.
A. Union's Exceptions
The Union excepts to the award on two grounds: (1) the Arbitrator
exceeded his authority by imposing a written reprimand on the grievant,
after finding that the evidence did not support discipline; and (2) the
award violates law to the extent it orders an automatic 5-day suspension
without pay based on future misconduct.
In support of the exception pertaining to the imposition of a written
reprimand, the Union argues that in order for the Arbitrator to have
determined whether the suspension was for cause, the Arbitrator was
required first to determine whether the grievant actually committed the
acts alleged by the Agency. The Union argues, in this regard, that the
Arbitrator found that the grievant did not engage in the conduct that
served as the basis for the Agency's disciplinary action. The Union
argues, therefore, that the Arbitrator "did not possess the authority to
impose discipline against (the grievant,)" and that the Arbitrator
exceeded his authority by doing so. Union's Exceptions at 12.
The Union also argues that the portion of the award directing an
automatic 5-day suspension without pay is deficient as being contrary to
law and regulation. More specifically, the Union argues that this
portion of the award interferes with the Agency's right to discipline
under section 71069a)(2)(A) of the Statute, disregards certain due
process and procedural protections contained in 5 U.S.C. Section 7503
and 5 C.F.R. Section 752.203, and automatically imposes a suspension
without recourse by the grievant and the Union to the parties'
negotiated grievance procedure in violation of section 7121 of the
Statute and 5 C.F.R. Section 752.203(f).
B. Agency's Opposition
The Agency disagrees with the Union's assertion that the Arbitrator
exceeded his authority by imposing a written reprimand on the grievant.
The Agency argues that the Union is merely disagreeing with the
Arbitrator's findings of fact, particularly, the Arbitrator's finding
that the grievant had created a disturbance. The Agency notes, in this
regard, that the Arbitrator did not reject the Agency's assertion that
the grievant's conduct was disruptive. According to the Agency, the
Arbitrator determined that although the 3-day suspension was
inappropriate for the grievant's conduct, some form of discipline was
warranted.
The Agency also argues, as it has in its exceptions, that the
Authority should remand the case to the Arbitrator. The reasons for
this request are set forth in the discussion of the Agency's exceptions.
C. Agency's Exceptions
The Agency excepts to the award on the following bases: (1) the
Arbitrator exceeded the scope of his authority in fashioning a remedy;
(2) the award interferes with the Agency's right to discipline under
section 7106(a)(2)(A) of the Statute; and (3) the award is contrary to
5 U.S.C. Section 7503 and applicable regulations. The Agency also
argues that striking the improper remedy from the award will create an
ambiguity that justifies remanding the case to the Arbitrator for
clarification.
With regard to the assertion that the Arbitrator exceeded his
authority, the Agency argues that by imposing a 5-day suspension for
future misconduct, the remedial relief is beyond the scope of the matter
submitted to the Arbitrator for resolution. The Agency contends that
the issue before the Arbitrator was whether there was just cause for the
imposition of the 3-day suspension and that a penalty for future
misconduct relates to an issue that was not before the Arbitrator. In
support, the Agency relies on various provisions of the parties'
agreement outlining the scope of the Arbitrator's authority.
The Agency also argues that the imposition of the 5-day suspension
for future misconduct interferes with management's right to discipline
under section 7106(a)(2)(A) of the Statute. In support, the Agency
relies on Social Security Administration and American Federation of
Government Employees, Local 1336, 34 FLRA 670 (1990) (Social Security
Administration), in which a prospective remedy was found to interfere
with the exercise of management's rights. As the 5-day suspension here
similarly would conflict with the exercise of a management right, the
Agency argues that the award must be set aside.
Finally, the Agency argues that although the Arbitrator was
authorized to mitigate the penalty imposed on the grievant, the future
5-day suspension is contrary to law and regulation. The Agency states
that under 5 U.S.C. Section 7503 and 5 C.F.R. Sections 752.201 et seq.,
the Agency could not automatically issue a 5-day suspension to the
grievant but, rather, would first have to propose such action. The
Agency argues, therefore, that it would not be possible to effectuate
the Arbitrator's decision. Because, in the Agency's view, the
Arbitrator intended to impose a penalty falling somewhere between a
reprimand and a 3-day suspension, the Agency urges the Authority to
remand the case to the Arbitrator for consideration of an appropriate
penalty.
D. Union's Opposition
The Union opposes the Agency's request that the Authority remand the
case to the Arbitrator for clarification and reconsideration of the
penalty to be imposed on the grievant. The Union states that the
Agency's exceptions relate solely to the Arbitrator's order directing
the Agency to impose a 5-day suspension for future misconduct, and the
Union has agreed that this portion of the award is contrary to law, rule
and regulation. The Union argues that the Arbitrator's findings and
holdings that the suspension was not for cause, that the grievant did
not engage in the conduct alleged by the Agency, and that a written
reprimand was the appropriate level of discipline for any conduct which
may have occurred, support the Arbitrator's award. For these reasons,
the Union argues that a remand to either the Arbitrator or the parties
is unnecessary.
A. Imposition of Written Reprimand Is Not Deficient
For the following reasons, we find that the portion of the award
mitigating the 3-day suspension to a written reprimand is not deficient.
Accordingly, the Union's exception to this portion of the award is
denied.
The Union argues that the Arbitrator exceeded his authority by
imposing the written reprimand after finding that the grievant had not
engaged in the conduct alleged by the Agency. More particularly, the
Union states that the Arbitrator "explicitly found" that the
preponderance of the evidence did not support the charges of rude and
disrespectful behavior and that there was no evidence that the grievant
cursed, threatened, or physically abused any employee. Union's
Exceptions at 4. The Union asserts that "(h)aving found that (the
grievant) did not commit the wrongdoing, the Arbitrator did not possess
the authority to impose discipline against her." Id. at 12.
The Agency argues, in opposition, that the award of a written
reprimand was based on the Arbitrator's finding that the grievant had
created a disturbance by engaging in disruptive behavior. According to
the Agency, the Union is merely disagreeing with the Arbitrator's
factual findings.
An arbitrator exceeds his or her authority by resolving an issue not
submitted to arbitration or by issuing an affirmative order that either
awards relief to persons not encompassed within the grievance or that is
beyond the scope of the matter submitted to arbitration. See, for
example, U.S. Department of Health and Human Services, Social Security
Administration, Southeastern Program Service Center and American
Federation of Government Employees, Local 2206, 38 FLRA 1170, 1176-79
(1990); U.S. Department of Veterans Affairs Medical Center, Asheville,
North Carolina and American Federation of Government Employees, Local
446, 37 FLRA 1054 (1990) (Department of Veterans Affairs).
The Union does not argue, as to this exception, that the Arbitrator
exceeded his authority by resolving an issue not submitted to
arbitration or awarding relief to persons not encompassed within the
grievance or beyond the scope of the matter submitted to arbitration.
Rather, the Union argues that the Arbitrator exceeded his authority by
imposing a written reprimand notwithstanding a finding that the grievant
was not guilty of the charges alleged by the Agency.
Contrary to the Union's assertion, the Arbitrator did not reject all
of the grounds on which the 3-day suspension initially was imposed. The
charge of engaging in disruptive conduct specifically was not rejected.
To the contrary, the Arbitrator found that the grievant "was upset,
demanding, insistant (sic) and determined to do everything she could to
get her money." Award at 6. The mitigation of the penalty from a 3-day
suspension to a written reprimand was based on the fact that some of the
charges against the grievant, namely those relating to rude and
disrespectful behavior, were unsubstantiated. However, the Arbitrator
left standing the charge of disruptive behavior. Clearly, the
imposition of the written reprimand was based on this conduct.
It is well established that an arbitrator may determine whether all
or part of a disciplinary action is not for just and sufficient cause
and set aside or reduce the penalty. See Department of Veterans
Affairs, 37 FLRA at 1056. In this case, the Arbitrator determined that
a part of the disciplinary action was not based on just cause and
reduced the penalty to a written reprimand. The Arbitrator thus acted
fully within his authority. Moreover, we note that in the Union's
opposition to the Agency's exceptions, the Union has essentially
conceded that the Arbitrator acted properly in imposing the written
reprimand. The Union states, in this connection, that "(i)t is clear
that the Arbitrator found that a written reprimand was the appropriate
level of discipline for the conduct which may have occurred on October
19, 1989, . . ." and the Arbitrator's findings and holdings support this
conclusion. Union's Opposition at 4.
Consequently, we find that the Arbitrator did not exceed his
authority by imposing a written reprimand. The Union's exception to
this portion of his award is denied.
B. The 5-Day Suspension for Future Misconduct Is Deficient
Both the Union and the Agency except to the portion of the award
directing that a 5-day suspension without pay be imposed on the grievant
if, during the one-year period in which the written reprimand is in
effect, the grievant causes a disturbance in or outside the work area
and/or refuses to perform work within her job specifications. The Union
and the Agency argue that the award interferes with management's right
to discipline under section 7106(a)(2)(A) of the Statute and is
inconsistent with 5 U.S.C. Section 7503 and 5 C.F.R. Part 752.
Additionally, the Union argues that the award violates section 7121 of
the Statute and 5 C.F.R. Section 752.203(f).
We find that the award is deficient because it conflicts with the
right to discipline under section 7106(a)(2)(A) of the Statute. In
Social Security Administration, the Authority was presented with
exceptions concerning a virtually identical remedy as that presented
here. In that case, the arbitrator determined that a 5-day suspension
was not for just cause, reduced the suspension to a reprimand, and
directed that the reprimand warn the grievant that any further violation
would result in a 5-day suspension. We found that the portion of the
award directing a future 5-day suspension improperly interfered with the
exercise of management's right to discipline under section 7106(a)(2)(A)
of the Statute. In reaching that result, we stated that restrictions on
an agency's ability to choose the specific penalty to impose in
disciplinary actions directly interfere with management's right to
discipline under section 7106(a)(2)(A) by eliminating management's
discretion to choose the penalty it will impose for a given offense. 34
FLRA at 673-74.
The disputed portion of the award in this case requires the Agency to
impose a 5-day suspension on the grievant for future misconduct
involving either a disturbance in or outside the work area, and/or a
refusal to perform work within the grievant's job specifications. By
directing the specific penalty to be imposed on the grievant, the award
impermissibly restricts management's right to discipline under section
7106(a)(2)(A) of the Statute. /1/
Consequently, we find this portion of the award to be deficient. /2/
As we did in Social Security Administration, we will modify the award by
striking the language that states that the grievant "shall automatically
receive a 5 day suspension without pay(,)" and replace it with a
provision stating that the grievant "may receive a 5-day suspension
without pay."
C. The Agency's Request for a Remand Is Denied
The Agency argues that the imposition of a future 5-day suspension
cannot be implemented. The Agency also states that striking any
deficient language from the award "would not be appropriate . . ." and
"would not be in keeping with the (A)rbitrator's findings." Agency's
Opposition at 4. According to the Agency, because the Arbitrator
intended to impose a penalty falling somewhere between a 3-day
suspension and a reprimand, "the only way by which that intent can be
effectuated . . ." is for the Authority to remand the case so that the
Arbitrator can consider an appropriate remedy. Id. at 5. We disagree.
First, we have found that the automatic 5-day suspension for future
misconduct is deficient and have modified the award accordingly. The
modification is consistent with the Arbitrator's findings. Therefore,
the Agency's contentions that striking any portion of the award is
inappropriate and not in keeping with the Arbitrator's findings lack
merit.
Second, we find unpersuasive the Agency's argument that the "only
way" to effectuate the Arbitrator's intent is to remand the case to the
Arbitrator. While the Arbitrator intended to account for certain
misconduct on the part of the grievant during the one-year period the
written reprimand is to stay in effect, the Arbitrator's intent is fully
satisfied by modifying the prospective remedy. The Agency may choose to
impose a 5-day suspension without pay, or it may take other appropriate
action. Consequently, there is no basis on which to find that a remand
to the Arbitrator is warranted.
The award is modified to delete that portion which states that "(the
grievant) shall automatically receive a 5 day suspension without pay(,)"
and to add, instead, that "(the grievant) may receive a 5-day suspension
without pay." The Union and Agency exceptions to the other portions of
the award are denied.
(1) Because neither the parties nor the Arbitrator referred to
provisions of the parties' agreement relating to this grievance as being
appropriate arrangements for employees adversely affected by the
exercise of management's rights, it is unnecessary to apply the
framework set forth in Department of the Treasury, U.S. Customs Service
and National Treasury Employees Union, 37 FLRA 309 (1990).
(2) In view of our finding that the award conflicts with management's
right to discipline, we find it unnecessary to address the parties'
other contentions.
40 FLRA 1032
40 FLRA NO. 91
Dept. of the Army, New Cumberland Army Depot, New Cumberland,
Pennsylvania and AFGE, Local 2004, Case No. 0-AR-1992 (40 FLRA 186)
(Decided May 24, 1991)
REQUEST FOR RECONSIDERATION
The Union requested reconsideration of the Authority's decision in 40
FLRA 186 (1991). In 40 FLRA 186 the Authority rejected the Union's
contention that the Arbitrator's award of Environmental Differential Pay
(EDP) retroactive to April 7, 1988, rather than October 5, 1978,
violated 5 U.S.C. Section 5343(c)(4), 5 C.F.R. Section 532.511(a)(1),
and the Back Pay Act, 5 U.S.C. Section 5596.
In its request for reconsideration, the Union argues that the
Arbitrator improperly concluded that the grievants' entitlement to
retroactive EDP before April 7, 1988, the date on which the grievance
was filed, was forfeited by not filing a grievance before such time.
The Authority denied the request for reconsideration because the Union
failed to establish that extraordinary circumstances existed which
warranted reconsideration of the decision in 40 FLRA 186. The Authority
concluded that the arguments presented by the Union in support of its
request for reconsideration constituted nothing more than disagreement
with the Authority's decision in an attempt to relitigate the merits of
the case.
Case No. 0-AR-1992 (40 FLRA 186 (1991))
U.S. DEPARTMENT OF THE ARMY, NEW CUMBERLAND ARMY DEPOT, NEW
CUMBERLAND, PENNSYLVANIA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2004
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before us on a request for reconsideration of 40 FLRA
186 (1991) filed by the Union under section 2429.17 of the Authority's
Rules and Regulations. The Agency filed an opposition to the request.
Because the Union fails to establish that extraordinary circumstances
exist which warrant reconsideration of our decision, we will deny the
Union's request.
In 40 FLRA 186, we rejected the Union's contention that the
Arbitrator's award of Environmental Differential Pay (EDP) retroactive
to April 7, 1988, rather than October 5, 1978, violated 5 U.S.C.
Section 5343(c)(4), 5 C.F.R. Section 532.511(a)(1), and the Back Pay
Act, 5 U.S.C. Section 5596. We decided as follows:
Nothing in the Back Pay Act, 5 U.S.C. Section 5343(c)(4), 5 C.F.
R. Section 532.511(a)(1), or appendix J of FPM Supplement 532-1
specifies the appropriate period of time for which an EDP payment
is due. Moreover, the Union has not demonstrated that any other
statute or regulation required that EDP be made retroactive to
October 5, 1978. Consequently, the Union has not demonstrated
that the grievants were entitled by law or regulation to EDP
retroactive to October 5, 1978.
40 FLRA at 193.
The Union contends that the Arbitrator "improperly conclude(d)" that
the grievants' entitlement to retroactive EDP before April 7, 1988, the
date on which the grievance was filed, "was forfeited" by not filing a
grievance before such time. Request for Reconsideration at 8. The
Union asserts that, because the Arbitrator determined "that the
grievants' work involved unusually severe hazards," the Back Pay Act and
5 U.S.C. Section 5343(c)(4) require that EDP be paid for the time that
the grievants' work involved such hazards. Id.
The Agency argues that "(t)he arguments raised by the (U)nion in its
motion for reconsideration were previously raised in its initial
exception to the arbitrator's award . . . (and) considered and rejected
by the Authority in (40 FLRA 186)." Opposition at 1-2. Thus, according
to the Agency, as the Union's "motion is simply an attempt to relitigate
its initial exception(,)" the Union has not established extraordinary
circumstances warranting reconsideration of 40 FLRA 186. Id. at 3.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to move for
reconsideration of a decision of the Authority. The Union fails to
establish "extraordinary circumstances" within the meaning of section
2429.17.
The arguments presented by the Union in support of its request for
reconsideration constitute nothing more than disagreement with the
Authority's decision in 40 FLRA 186 and an attempt to relitigate the
merits of the case. As such, these arguments do not constitute
extraordinary circumstances warranting reconsideration of our decision,
and we will deny the request.
The Union's request for reconsideration is denied.
40 FLRA 1025
40 FLRA NO. 90
U.S. Department of the Air Force, 842nd Combat Support Group, Grand
Forks Air Force Base, North Dakota and AFGE, Case No. RO-00006 (Decided
May 24, 1991)
APPLICATION FOR REVIEW
DETERMINATION OF APPROPRIATE UNIT
SUBSTANTIAL QUESTION OF LAW BECAUSE OF DEPARTURE FROM
AUTHORITY PRECEDENT
ERRONEOUS DECISION ON FACTUAL ISSUES
CONTENTIONS NOT CONSIDERED BY THE REGIONAL DIRECTOR
The Activity sought review of the Regional Director's Decision and
Order Directing Election in a unit consisting of all non-appropriated
fund (NAF) employees in the Morale, Welfare and Recreation and Billeting
functions, who had a reasonable expectation of continued employment.
The Activity appealed on the grounds that: (1) a substantial question
of law was raised because of a departure from Authority precedent; and
(2) the Regional Director's decisions on two factual issues were clearly
erroneous and these errors prejudicially affect the rights of the
Activity. In addition, the Activity requested that the Authority remand
the case to the Regional Director because of changes in the NAF program.
The Authority concluded that no compelling reasons existed within the
meaning of section 2422.17(c) of the Authority's Rules and Regulations
for granting the application for review. The Authority found no merit
in the Activity's assertions that the Regional Director erred in
concluding that the employees should be included in the bargaining unit
and that her decision constituted a departure from Authority policy.
The Authority also rejected the Activity's argument that the Regional
Director erred in finding that the inclusion of the employees in the
bargaining unit would promote effective dealings with the Activity and
efficiency of the Activity's operations.
Lastly, the Authority concluded that the Activity's assertions did
not provide a basis on which to remand the Regional Director's decision
and order because the Regional Director did not consider the Activity's
assertions concerning changes in the NAF program in her decision and
order. The Authority noted that an application may not raise any issue
or allege any facts not timely presented to the Regional Director.
Case No. 7-RO-00006
U.S. DEPARTMENT OF THE AIR FORCE, 842ND COMBAT SUPPORT GROUP, GRAND
FORKS AIR FORCE BASE, NORTH DAKOTA
(Activity)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Petitioner)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an application for review filed
by the Activity under section 2422.17(a) of the Authority's Rules and
Regulations. The Activity seeks review of the Regional Director's
Decision and Order Directing Election in a unit consisting of all
non-appropriated fund (NAF) employees in the Morale, Welfare, and
Recreation and Billeting functions employed at Grand Forks Air Force
Base, North Dakota (GFAFB), who have a reasonable expectation of
continued employment. The Petitioner did not file an opposition to the
application for review.
For the following reasons, we deny the application for review.
The Petitioner was previously certified in Case No. 7-RO-60006 as the
representative of a unit including "(a)ll professional and
nonprofessional Air Force civilian employees employed by Grand Forks
AFB, North Dakota, and/or serviced by the Civilian Personnel Office,
Grand Forks AFB, including on-base tenant organizations and Maintenance
RIVET MILE project employees." Regional Director's Decision at 2 n.2.
The appropriate bargaining unit in Case No. 7-RO-60006 excluded NAF
employees.
In a petition which led to the decision before us, the Petitioner
sought an election in the following unit:
Included: All non-appropriated fund employees, including MWR,
Billeting and those located at Cavalier AFS, ND, employees
employed at Grand Forks Air Force Base in Grand Forks, North
Dakota. Excluded: All appropriated fund employees, management
officials, supervisors, AAFES and employees described in 5 U.S.C.
Section 7112(b)(2), (3), (4), (6) and (7).
Id. at 1-2 (footnote omitted). The Regional Director held a hearing on
the issues raised by the petition and issued a decision and order
directing an election.
In reaching a determination on an appropriate unit, the Regional
Director decided that it was appropriate to include variable schedule
(VS) employees in a unit with regular part-time (RPT) and regular
full-time (RFT) employees. /1/ The Activity has not challenged the
Regional Director's additional determinations that: (1) it was
appropriate to include NAF employees in the Morale, Wellness, and
Readiness (MWR) and Billeting functions at GFAFB in the same unit, and
(2) it would be inappropriate to place NAF employees at Cavalier AFB in
a unit with NAF employees at GFAFB. Accordingly, only the Regional
Director's determination to include VS employees in the unit with RPT
and RFT employees will be addressed herein.
The Regional Director found that GFAFB, with a population of between
5000 and 6000 military, military dependents, and civilians, is part of
the United States Air Force Strategic Air Command. The employees that
Petitioner seeks to represent work in two NAF organizations, MWR and
Billeting. MWR operates officers' clubs, recreational activities, child
care, veterinary services, and a financial management branch. Billeting
provides accommodations for permanent and transient military personnel
and certain civilians in temporary duty status. At the date of the
hearing, the Regional Director found that in MWR and Billeting there
were approximately 178 VS positions, 33 RFT positions, and 27 RPT
positions for a total of 238 positions, of which approximately 226 were
encumbered.
The Regional Director found that "VS employees perform job functions
side-by-side with and essentially identical to those functions performed
by RPT, RFT and TFT employees." Id. at 9. She also found that a VS can
become an RFT or RPT employee "depending on the needs of the particular
NAFI . . . ." Id. Unlike RFT and RPT employees, VS employees are not
guaranteed any specific number of hours per week, but "they are not
supposed to work more than 35 hours per week." Id. The Regional
Director found that VS employees are "'permanent' in nature . . .
working without a fixed schedule on a day-to-day basis, or at least with
minimal advance notice of their schedule." Id. at 14. She noted that
although the number of hours worked by VS employees varies "there is no
basis to conclude that there is any specific term limitation on their
employment." Id. at 13 (footnote omitted). The Regional Director
concluded that the VS employees have "a reasonable expectancy of future
and continued employment . . . ." Id. at 14.
The Regional Director also found that VS employees do not share the
same "adverse action appeal rights, leave rights, or the same benefit
package" as RFT and RPT employees. However, she found that "they do
share many of the same conditions of employment with those employees."
Id. at 12. The Regional Director noted that VS employees:
work side-by-side in the same locations with those in other
categories and/or replace these RFT or RPT employees in the
performance of the same job duties; they work under common
supervision; they are serviced by common NAFI personnel and
payroll organizations; they have the same pay scale, depending on
grade, based upon the same compensation system; they have shared
the same uniqueness from the General Schedule employees at GFAFB,
. . . ; their OPFs (official personnel files) are maintained by
the same personnel office; they are all eligible for overtime and
shift differential pay; they all receive similar types of
performance evaluations on an annual basis; they are all eligible
for awards under the same regulations; they all can use the
internal Agency grievance procedure; and they all can submit
suggestions to the Agency suggestion program.
Id. at 12-13.
The Regional Director also found that including VS employees in a
bargaining unit would "promote effective dealings between, both
employees and their employer, as well as promote the overall efficiency
of the Agency operations." Id. at 15. In reaching this conclusion, she
rejected the Activity's argument that "allowing VS employees in any
bargaining unit would, ipso facto, increase costs due to lack of
flexibility in, for example, scheduling, and would therefore jeopardize
the continued existence of the NAFI function(.)" Id. at 14. The
Regional Director found the Activity's argument was "conjectural and
unsupported by the evidence of record." Id.
Noting that the Petitioner "has indicated a willingness to proceed to
an election in any unit found appropriate," the Regional Director
directed an election in the following unit:
All non-appropriated fund employees of the MWR and Billeting
functions employed at Grand Forks AFB, North Dakota who have a
reasonable expectation of continued employment, excluding
appropriated fund employees, employees employed at Cavalier AFS,
North Dakota, management officials, supervisors, and employees
described in 5 U.S.C. 7112(b)(2)(3), (4), (6) and (7).
Id. at 16 (footnote omitted).
The Activity appeals on the grounds that "(1) that a substantial
question of law is raised because of a departure from Authority
precedent; and (2) that the Regional Director's decisions on two
factual issues were clearly erroneous and these errors prejudicially
affect the rights of the Activity." Application for Review at 2. In
addition, the Activity requests the Authority to remand the case to the
Regional Director because of changes in the NAF program at GFAFB.
According to the Activity, the Regional Director's finding that "a
community of interest exists between the Variable Schedule and the
Regular employees at GFAFB" is a departure from Authority precedent.
/2/ Id. at 3. The Activity also asserts that this finding is erroneous.
According to the Activity, there are "important factors," such as "a
merit promotion plan, competitive areas for reductions in force, adverse
action procedures, eligibility for a retirement plan and insurance
benefits, and entitlement to earn sick and annual leave and to receive
Sunday and holiday pay," which the VS employees do not share with the
Regular employees. Id. at 4. The Activity asserts that "(t) othe
extent the Regional Director considered the number of similarities as
opposed to the nature of those similarities, and accorded equal weight
to having personnel files kept in one office and having merit promotion
rights, the Activity believes the Regional Director erred." Id. at 5-6
(emphasis in original). In addition, the Activity notes that in
contrast to Regular employees, who have regular work schedules and are
"guaranteed a certain number of work hours per week(,)" VS employees
have "no guarantee that they will ever work at all." Id. at 6 (emphasis
in original).
The Activity also asserts that the Regional Director erred by finding
that the inclusion of VS employees in a bargaining unit would promote
effective dealings with the Activity and efficiency of its operations.
In support, the Activity argues that because the NAF program at GFAFB is
already experiencing losses, "any increase in operating costs due to
managers' lack of flexibility in scheduling their employees (which could
reasonably occur if employee schedules were the subject of bargaining)
would push the NAF program further into the red." Id. at 9.
Finally, the Activity requests a remand of the Regional Director's
decision because of "substantive changes that have occurred in the
structure of the NAF program at GFAFB(.)" Id. at 10. The Activity
states that on March 10, 1991, the RFT, RPT, TFT, and VS categories were
replaced by Regular and Flexible categories and "a new pay system called
'pay banding' was implemented." Id. at 9. The Activity asserts that
these changes affected, among other things, the number of hours
employees may work and are guaranteed, how employees' pay is determined,
and whether employees get within-grade increases and premium pay. The
Activity asks the Authority to remand the case to the Regional Director
"for appropriate action." Id. at 10.
We conclude, for the reasons stated below, that no compelling reasons
exist within the meaning of section 2422.17(c) of the Authority's Rules
and Regulations for granting the application for review.
We find no merit in the Activity's assertions that the Regional
Director erred in concluding that the VS employees should be included in
the bargaining unit and that her decision constitutes a departure from
Authority policy. In reaching her determination concerning an
appropriate bargaining unit, the Regional Director appropriately
considered the differences and similarities between the conditions of
employment of VS employees and those in the RFT and RPT categories. See
Regional Director's Decision at 9-11. After weighing the evidence, the
Regional Director concluded "(o)n the whole, I find that the VS
employees have a sufficient community of interest with the other
categories of NAFI employees with whom they work, in either Billeting or
MWR, to warrant their inclusion in a bargaining unit." Id. at 13. We
conclude that the Activity's arguments constitute nothing more than
disagreement with the Regional Director's finding that the VS employees
have a community of interest with other NAF employees in MWR and
Billeting.
We also reject the Activity's argument that the Regional Director
erred in finding that the inclusion of VS employees in the bargaining
unit would promote effective dealings with the Activity and efficiency
of the Activity's operations. The Activity's assertion that collective
bargaining would be detrimental to NAF operations at GFAFB conflicts
with Congress' determination in section 7101(a) that "labor
organizations and collective bargaining in the civil service are in the
public interest." As noted by the Regional Director, Congress
specifically found in enacting the Statute that "the right of employees
to organize, bargain collectively, and participate through labor
organizations of their own choosing . . . contributes to the effective
conduct of public business . . . ." See section 7101(a)(1)(B).
Accordingly, we find that the Regional Director did not err in rejecting
the Activity's argument that including VS employees in any bargaining
unit would increase costs and, consequently, jeopardize the existence of
the NAF program.
Finally, we will not remand the Regional Director's decision and
order because of the substantive changes that the Activity asserts have
occurred in the structure of the NAF program at GFAFB since the Regional
Director's decision issued on February 5, 1991. According to the
Activity, the changes in the NAF program were effective on March 1,
1991, and affected the conditions of employment of NAF employees. The
Regional Director did not consider the Activity's assertions concerning
changes in the NAF program in her decision and order. Consequently, the
Activity's assertions are not properly before us and do not provide a
basis on which to remand the Regional Director's decision and order.
See 5 C.F.R. Section 2422.17(b) ("An application may not raise any issue
or allege any facts not timely presented to the Regional Director.").
Compare Department of the Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Cincinnati District,
Cincinnati, Ohio, 36 FLRA 138, 146 (1990) (where agency failed to inform
Regional Director prior to issuance of decision that a position was
vacant, agency was precluded from asserting that the position should not
be in unit in its application for review).
The application for review of the Regional Director's decision and
order is denied.
(1) The Regional Director concluded that the record was insufficient
to determine whether the one temporary full-time (TFT) position would be
filled in the future and made no finding on that position.
(2) Although the Activity did not define "Regular" employees, we
assume this category includes RPT and RFT employees.
40 FLRA 1021
40 FLRA NO. 89
Dept. of Labor, Office of Administrative Law Judges, Pittsburgh,
Pennsylvania and AFGE, National Council of Field Labor Locals, Local 644
Case No. 2-CU-00009 (Decided May 24, 1991)
7103(a)(13)
APPLICATION FOR REVIEW
CLARIFICATION OF UNIT
CONFIDENTIAL EMPLOYEE
The Activity sought review of the Regional Director's decision and
order on petition for clarification of unit. The Regional Director
found that a Lead Legal Technician (Typing), GS-0986-08, should be
included in the bargaining unit because she was not a confidential
employee within the meaning of section 7103(a)(13) of the Federal
Service Labor-Management Relations Statute. The Activity argued that
review of the RD's Decision was warranted because: (1) a substantial
question of law or policy was raised because of a departure from
Authority precedent regarding the definition of a confidential employee
and (2) the RD's decision on a substantial factual issue was clearly
erroneous and such error had prejudiced the Activity's rights.
The Authority denied the application for review because no compelling
reasons existed within the meaning of section 2422.17(c) of the
Authority's Rules and Regulations for granting the application for
review. The Authority noted that the Regional Director did not depart
from Authority precedent in determining that the Lead Legal Technician
is not a confidential employee. The Authority concluded that the
Activity's application essentially expressed disagreement with the
Regional Director's factual findings and with his conclusions.
Case No. 2-CU-00009
U.S. DEPARTMENT OF LABOR, OFFICE OF ADMINISTRATIVE LAW JUDGES
PITTSBURGH, PENNSYLVANIA
(Activity)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF
FIELD LABOR LOCALS, LOCAL 644, AFL-CIO
(Labor Organization/Petitioner)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an application for review filed
by the Activity under section 2422.17(a) of the Authority's Rules and
Regulations. The Activity seeks review of the Regional Director's
decision and order on petition for clarification of unit. The Regional
Director found that a Lead Legal Technician (Typing), GS-0986-08, should
be included in the bargaining unit because she was not a confidential
employee within the meaning of section 7103(a)(13) of the Federal
Service Labor-Management Relations Statute (the Statute). The
Petitioner (Union) filed an opposition to the application for review.
For the following reasons, we deny the application for review.
The Petitioner is certified as the exclusive representative of the
following unit:
All employees in field duty stations of the Department of Labor,
including field duty stations located within the Washington, D.C.
metropolitan area, except non-clerical employees of the
Labor-Management Services Administration and employees serving in
temporary appointments of less than one year's duration, and
excluding all management officials, supervisors, employees who
assist and act in a confidential capacity to persons responsible
for formulating and effectuating the Department of Labor's labor
relations policies, employees engaged in personnel work in other
than a purely clerical capacity, and other statutory exclusions
not relevant herein.
Regional Director's (RD's) Decision at 2. In this case, the Petitioner
seeks to clarify the unit by including the position of Lead Legal
Technician (Typing), GS-0986-08, in the Office of Administrative Law
Judges, District Office, Pittsburgh, Pennsylvania. The Lead Legal
Technician position is encumbered by Mary Ann Avolio, who works under
the general supervision of the District Chief Administrative Law Judge
(the District Chief Judge).
The Regional Director stated that, consistent with U.S. Department of
Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37
FLRA 239, 244 (1990) (DOI, Yuma), an employee is "confidential," within
the meaning of section 7103(a)(13) of the Statute, only if there is a
confidential working relationship between the employee and his or her
supervisor and the supervisor is involved significantly in
labor-management relations. The Regional Director noted that there was
no dispute that there was a confidential working relationship between
Avolio and the District Chief Judge. The Regional Director determined,
however, that the District Chief Judge was not involved significantly in
"formulating or effectuating management policies in the field of
labor-management relations." RD's Decision at 5.
According to the Regional Director, the District Chief Judge "refers
questions concerning personnel or labor relations policy to (the Office
of the Assistant Secretary for Administration and Management) for its
decision and action(,)" and that Office is "solely responsible for
dictating the Activity's response." Id. at 6. The Regional Director
concluded that as Aviolo does not serve in a confidential capacity to an
individual who formulates or effectuates management policies in
labor-management relations within the meaning of the Statute, Avolio
should be included in the Petitioner's bargaining unit.
The Activity asserts that review of the RD's Decision is warranted
because: (1) a substantial question of law or policy is raised because
of a departure from Authority precedent regarding the definition of a
confidential employee and (2) the RD's decision on a substantial factual
issue is clearly erroneous and such error has prejudiced the Activity's
rights.
With respect to the first argument, the Activity asserts that the
Regional Director "failed to reconcile his finding that the (District
Chief Judge) was not engaged in formulating or effectuating management
policy with case law which establishes that the authority to hire, fire,
discipline, approve or deny leave and to handle and resolve grievances
constitutes the authority to formulate or effectuate such policies."
Application at 4. With respect to the second argument, the Activity
maintains that the Regional Director reached "an incomplete and
inaccurate statement of the role of the District Chief Judge." Id. at
2. According to the Activity, the District Chief Judge "effectuates
management labor-relations policy in the substantive decisions he makes
regarding compensation, assignments and working conditions . . . ." Id.
at 4.
The Union contends that the Regional Director correctly found that
the Lead Legal Technician is not a confidential employee within the
meaning of section 7103(a)(13) of the Statute. According to the Union,
the record establishes that the District Chief Judge's authority
concerning promotions, leave usage, discipline and performance
evaluations and awards: (1) is the same as any other supervisor or
manager in the Department of Labor, (2) is exercised in accordance with
published agency policies and provisions of the parties' collective
bargaining agreement, and (3) does not concern the formulation or
effectuation of labor-management policy.
We conclude, for the reasons stated below, that no compelling reasons
exist within the meaning of section 2422.17(c) of the Authority's Rules
and Regulations for granting the application for review.
The Regional Director did not depart from Authority precedent in
determining that the Lead Legal Technician is not a confidential
employee. Rather, the Regional Director correctly applied the
requirements in DOI, Yuma.
Further, the Activity has not established that the Regional
Director's findings concerning the District Chief Judge's role in
labor-management relations are clearly erroneous. The record supports
the Regional Director's conclusion that although the District Chief
Judge is involved in personnel matters, he is not significantly involved
in formulating or effectuating labor-management policies.
We conclude that the Activity's application essentially expresses
disagreement with the Regional Director's factual findings and his
conclusions. Consequently, we find that the Activity has not
established that the Regional Director's decision is clearly erroneous
or that he departed from Authority precedent in reaching his decision.
The application for review of the Regional Director's decision and
order is denied.
40 FLRA 1016
40 FLRA NO. 88
U.S. Department of the Navy, Naval Weapons Support Center, Crane,
Indiana and AFGE, Local 1415 (Keenan, Arbitrator), Case No. 0-AR-2029
(Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
AWARD CONTRARY TO LAW
PAST PRACTICE
The Arbitrator denied a grievance alleging that the Agency violated
the parties' agreement and past practice by requiring that employees
take training on nonduty time. The Union filed exceptions arguing that
the award was contrary to law, rule, and regulation. The Union argued
that the award denied its right to negotiate over the impact and
implementation of the change in the parties' past practice and that the
Arbitrator erred by failing to find that the Agency violated the
parties' past practice.
The Authority rejected the Union's contention that the Arbitrator's
failure to enforce the parties' past practice was contrary to law. The
Authority noted that because the Arbitrator did not find that the
parties had a binding past practice, the Union's arguments that the
Arbitrator improperly failed to enforce such practice did not
demonstrate that the award was deficient. In addition, the Authority
rejected the Union's contention that the award improperly denied its
right to negotiate over the impact and implementation of the new
training requirement. The Authority concluded that the Union's
exception on this point constituted mere disagreement with the
Arbitrator's findings that although the Union was notified of the
Agency's change in the training requirement, it did not seek bargaining
over the change. Consequently, the Union's exceptions are denied.
Case No. 0-AR-2029
U.S. DEPARTMENT OF THE NAVY, NAVAL WEAPONS SUPPORT CENTER, CRANE,
INDIANA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1415
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Frank A. Keenan 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.
The Arbitrator denied a grievance alleging that the Agency violated
the parties' agreement and past practice by requiring certain employees
to take motorcycle safety training on nonduty 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.
Agency regulations require employees who operate motorcycles on naval
installations to attend and complete a motorcycle training course.
Until January 1987, employees were "provided the opportunity, at
government expense, to take the required eight (8) hour . . . training
course 'on the clock.'" Award at 2. From January 1987 through August
1989, the Agency did not provide the training course and, instead,
accepted the Indiana State Motorcycle License Endorsement in lieu of the
course.
On June 1, 1988, an Agency regulation was implemented requiring the
motorcycle safety course to be increased to 16 hours of instruction. In
September 1989, the Agency ceased accepting the Indiana license
endorsement and began sponsoring a 16-hour safety training course which
was held "off the clock." Id. at 3.
A grievance was filed over the Agency's implementation of the new
training requirement and, when the grievance was not resolved, it was
submitted to arbitration on the following stipulated issue:
Whether the (Agency) violated Article 29 of the Collective
Bargaining Agreement with (the Union) by deviating from a past
practice of providing the motorcycle safety training course "on
the clock."
Id. at 13. /1/
As relevant here, the Arbitrator concluded that the Agency did not
violate the parties' agreement by instituting a 16-hour training course
on nonduty time. He rejected, in this regard, the Union's contention
that there was a "'negotiated agreement'" requiring the Agency to
conduct the training on duty time. Id. at 17. The Arbitrator also
rejected the Union's argument that the Agency violated a past practice
between the parties. The Arbitrator concluded that, "assuming without
deciding" that a past practice requiring such training to be conducted
on duty time existed, such a practice was not enforceable because it
violated the Agency's right to assign work. Id. at 18.
The Arbitrator also found that the Agency did not wrongfully deny the
Union the opportunity to negotiate over the impact and implementation of
the new training requirements. The Arbitrator stated that this "issue
(was) not set forth in the 'stipulated issue(.)'" Id. The Arbitrator
also stated, however, that as the Union never sought to bargain over the
new training course, "it simply makes no sense to find that the (Agency)
has somehow breached any of its obligations concerning (i)mpact and
(i)mplementation bargaining." Id. at 22-23. The Arbitrator noted, in
this regard, that there was no "real issue" that the Union was notified
of the Agency's intention to implement the new training requirement.
Id. at 22 n.3. Accordingly, the Arbitrator denied the grievance.
The Union argues that the award is deficient because it is contrary
to law, rule, and regulation. The Union asserts that it was never
notified properly that the new training course would not be provided on
duty time and that the award denies its right to negotiate over the
impact and implementation of the change in the parties' past practice.
The Union also states that although it "did/does recognize that (the
disputed training) falls within management rights(,)" the Arbitrator
erred by failing to find that the Agency violated the parties' past
practice. Exceptions at 2.
We reject the Union's contention that the Arbitrator's failure to
enforce the parties' past practice is contrary to law. Put simply, the
Arbitrator did not fail to enforce a past practice. Indeed, the
Arbitrator expressly did not find that the parties had a binding past
practice requiring the Agency to provide motorcycle safety training on
duty time. The Arbitrator found, in this regard, that although both
parties' arguments on this point had merit, even assuming that such a
practice existed, it was not enforceable.
As the Arbitrator did not find that the parties had a binding past
practice requiring the Agency to provide the disputed training on duty
time, the Union's arguments that the Arbitrator improperly failed to
enforce such practice does not demonstrate that the award is deficient.
/2/ See The United States Air Force, Air Logistics Command, Tinker Air
Force Base, Oklahoma and American Federation of Government Employees,
Local 916, AFL-CIO, 28 FLRA 343 (1987) (contention that the arbitrator
erred in not finding the grievant's actions to be in accordance with
established past practice provided no basis for finding the award
deficient).
We also reject the Union's contention that the award improperly
denies its right to negotiate over the impact and implementation of the
new training requirement. The Arbitrator found that although the Union
was notified of the change, the Union never requested bargaining. The
Arbitrator relied, in this regard, on the Union President's testimony
that "bargaining was not sought by him because he felt that the
grievance route was the way to go(.)" Award at 5.
In our view, the Union's exception on this point constitutes mere
disagreement with the Arbitrator's findings that although the Union was
notified of the Agency's change in the training requirement, it did not
seek bargaining over the change. Disagreement with the Arbitrator's
evaluation of evidence and findings and conclusions based thereon
provides no basis for finding an award deficient. For example, U.S.
Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana
and American Federation of Government Employees, Council of Prison
Locals, Local 720, 38 FLRA 1438, 1441-42 (1991).
The Union has not demonstrated that the Arbitrator's award is
deficient on any grounds set forth in section 7122(a) of the Statute.
Therefore, we will deny the Union's exceptions.
The Union's exceptions are denied.
(1) Article 29 provides, in relevant part:
Section 1. The Employer and the Union agree that the training and
development of employees . . . is a matter of primary concern to
both parties and that the procedures and policies shall be
developed, through labor-management cooperation, to seek the
maximum training and development of all employees consistent with
the activity's mission requirements. . . .
Section 3. The training needs of all employees . . . shall be
given fair and equitable treatment consistent with established
Center priorities and in accordance with pertinent regulations
regarding training of employees. . . .
Attachment to Exceptions at 2-3.
(2) The Union does not except to the Arbitrator's conclusion that the
parties did not have a "negotiated agreement" requiring the Agency to
provide motorcycle safety training on duty time. Award at 17. It is
unnecessary, therefore, to apply the framework set forth in Department
of the Treasury, U.S. Customs Service and National Treasury Employees
Union, 37 FLRA 309 (1990).
40 FLRA 1012
40 FLRA NO. 87
Federal Employees Metal Trades Council and U.S. Department of the
Navy, Long Beach Naval Shipyard Long Beach, California (Howard,
Arbitrator), Case No. 0-AR-2028 (Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
29 C.F.R. 1910.252 (xiv)(a), (b), (d), and (e)
FAIR HEARING
PROCEDURAL ERRORS
The Arbitrator denied a grievance disputing the 10-day suspension of
the grievant for on-the-job carelessness. The Union filed exceptions to
the award arguing that the award was contrary to the regulations of the
Occupational Safety and Health Administration (OSHA), 29 C.F.R. Section
1910.252(xiv)(a), (b), (d), and (e). The Union also argued that there
were a number of procedural errors in the hearing.
The Authority rejected the Union's assertion that the award was
contrary to 29 C.F.R. Section 1910.252(xiv)(a), (b), (d), and (e). The
Authority noted that nothing in the regulation indicated that the
Agency's safety requirements were improper. In addition, the Authority
noted that nothing in the regulation indicated that an employee may not
be disciplined for failing to observe safety requirements. The
Authority construed the Union's assertions regarding alleged procedural
errors by the Arbitrator as an exception that the Arbitrator denied the
Union a fair hearing. The Authority concluded that the Union's
exception constituted mere disagreement with the manner in which the
Arbitrator conducted the hearing and with the Arbitrator's evaluation of
the evidence. Accordingly, the Authority denied the Union's exceptions.
Case No. 0-AR-2028
FEDERAL EMPLOYEES METAL TRADES COUNCIL
(Union)
U.S. DEPARTMENT OF THE NAVY, LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Spencer M. Howard. The Arbitrator denied a grievance
disputing the 10-day suspension of the grievant for on-the-job
carelessness.
The Union filed exceptions to the award 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.
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 grievant, a journeyman welder, was assigned to assist in
"applying heat to a deck socket . . . by use of a torch." Award at 1.
The grievant did not determine whether the area was free of gas before
applying heat to the deck socket. As a result, an explosion occurred
and a co-worker was injured.
After receiving a 10-day suspension for failing to determine whether
the area was free of gas, the grievant filed a grievance. When the
grievance was not resolved, it was submitted to arbitration. The
Arbitrator framed the issue as follows:
(W)hether the ten days' suspension of the grievant . . . should
stand or be reversed.
Id.
The Arbitrator stated that Article 25, Section 1 of the parties'
collective bargaining agreement provides that "(i)t is agreed that
employees have the responsibility in observing safety precautions and
will strive to develop safe work habits . . . ." Id. at 2. The
Arbitrator also stated that Agency procedures require that a "'green'
tag" be dated and placed on an enclosed tank to indicate that the area
is free of gas and that employees are to check the tag before beginning
work. Id. The Arbitrator found, however, that the grievant did not
check the green tag before starting to weld. The Arbitrator noted that
the grievant had taken safety training and was aware of the Agency's
safety procedures for working on an enclosed tank.
The Arbitrator considered the Union's arguments that "part of the
blame for (the) accident should be placed on Supervision" as well as the
Union's request that the hearing be reopened "so that Federal
Regulation, Title 29, might be introduced." Id. at 3. The Arbitrator
concluded, however, as follows:
While these contentions are good, in the final analysis if the
grievant had not violated the safety regulations, the accident
might not have occurred. Grievant is a journeyman welder with
several years' experience and should have known the consequences
for violating the safety rules.
Id. Accordingly, the Arbitrator sustained the 10-day suspension.
The Union argues that it is not an employee's responsibility to
determine whether it is safe to light a torch. According to the Union,
regulations of the Occupational Safety and Health Administration (OSHA),
29 C.F.R. Section 1910.252, apply in this case and are "very clear" that
the supervisor is responsible for inspecting the job site. Brief in
Support of Exceptions at 2.
In addition, the Union asserts that a number of procedural errors
occurred in the hearing which "caused the grievant to present his case
under unacceptable conditions." Exceptions at 2. In particular, the
Union objects to the Arbitrator's requirement that the Union present its
case before the Agency and the Agency's failure to make two Union
witnesses available for the arbitration hearing.
We reject the Union's assertion that the award is contrary to 29 C.
F.R. Section 1910.252(xiv)(a), (b), (d), and (e), because, under that
provision, a supervisor is required to ensure "it is safe to weld or
light a torch." /*/ Brief in Support of Exceptions at 1. Nothing in
this regulation indicates that the Agency's safety requirements,
including the requirement that the "green card" be checked, are
improper. Moreover, nothing in the regulation indicates that an
employee may not be disciplined for failing to observe safety
requirements. Accordingly, the Arbitrator's findings that, pursuant to
the parties' agreement, the grievant was responsible for observing, and
failed to observe, safety precautions is not contrary to 29 C.F.R.
Section 1910.252 and the award is not deficient on this basis.
We construe the Union's assertions regarding alleged procedural
errors by the Arbitrator as an exception that the Arbitrator denied the
Union a fair hearing. The Authority will find an arbitration award
deficient if it is established that the arbitrator failed to conduct a
fair hearing. See, for example, Antilles Consolidated Education
Association, OEA/NEA and U.S. Department of Defense, Antilles
Consolidated School System, 38 FLRA 341, 351 (1990). An arbitrator has
considerable latitude in the conduct of a hearing, however, and the fact
that an arbitrator conducted a hearing in a manner that a party finds
objectionable does not, in and of itself, provide a basis for finding an
award deficient. See, for example, U.S. Department of Health and Human
Services, Social Security Administration, Southeastern Program Service
Center and American Federation of Government Employees, Local 2206, 38
FLRA 1170, 1178 (1990).
We conclude that the Union has not demonstrated that the Arbitrator's
requirement that the Union present its case before the Agency or the
Agency's failure to make certain witnesses available denied the Union an
opportunity to adequately present its case or prevented it from
submitting pertinent and material evidence. In our view, the Union is
simply disagreeing with the manner in which the Arbitrator conducted the
hearing and with the Arbitrator's evaluation of the evidence.
Accordingly, the Union has not demonstrated that the award is deficient
because the Arbitrator denied it a fair hearing. Id.
For the foregoing reasons, we conclude that the Union's exceptions
provide no basis for finding the award deficient.
The Union's exceptions are denied.
(*) 29 C.F.R. Section 1910.252(xiv), provides, in pertinent part:
The Supervisor:
(a) Shall be responsible for the safe handling of the cutting
or welding equipment and the safe use of the cutting or welding
process.
(b) Shall determine the combustible materials and hazardous
areas present or likely to be present in the work location. . . .
(d) Shall secure authorization for the cutting or welding
operations from the designated management representative.
(e) Shall determine that the cutter or welder secures his
approval that conditions are safe before going ahead.
40 FLRA 1009
40 FLRA NO. 86
NFFE, Local 341 and Dept. of Interior, Bureau of Indian Affairs,
Wapato Irrigation Project, Wapato, Washington, Case No. 0-NG-1861 (39
FLRA No. 110) (Decided May 24, 1991)
REQUEST FOR RECONSIDERATION
FAILURE TO SERVICE NEGOTIABILITY APPEAL
SERVICE BELOW THE LEVEL OF AGENCY HEAD
ADEQUATE NOTICE
The Agency sought reconsideration of the Authority's decision in 39
FLRA No. 110 on the basis that they had not filed a statement of
position because the Union had not served a copy of the petition on the
Agency Head. The Authority found that the Agency had not established
extraordinary circumstances to warrant reconsideration, relying on two
things. First noted was that the Union had submitted a statement of
service claiming that service had been made both on the Secretary of
Interior and the Personnel Office of the Bureau of Indian Affairs
Portland Area Office. It is undisputed that the latter received its
copy. Secondly, the Authority served notice of its receipt on both of
these offices and there is no claim that its notice was not received by
both offices. In these circumstances, the Authority concluded that the
Agency had adequate knowledge that a petition had been filed and ample
opportunity to raise in a statement of position any issues concerning
the negotiability of the disputed proposals or the propriety of service.
Therefore, the motion for reconsideration was denied.
Case No. 0-NG-1861 (39 FLRA No. 110 (1991))
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 341
(Union)
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS WAPATO
IRRIGATION PROJECT, WAPATO, WASHINGTON
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on a motion filed by the Agency
seeking reconsideration of our decision in 39 FLRA No. 110. The Union
filed an opposition to the motion for reconsideration.
For the following reasons, we conclude that the Agency has failed to
establish that extraordinary circumstances exist warranting
reconsideration of our decision. Accordingly, we will deny the motion
for reconsideration.
For the reasons set forth fully in 39 FLRA No. 110, the Authority
concluded that the proposal in dispute was negotiable. The Authority
noted that the Agency did not file a statement of position. The
Authority did, however, address claims made by the Agency in its
allegation of nonnegotiability.
The Agency argues that, contrary to the Authority's Regulations,
which require that a negotiability appeal be served on the head of the
agency involved in the dispute, "no such petition for review was ever
received by the (A)gency head or his designee." Motion for
Reconsideration at 1. According to the Agency, "(i)f the Agency head
had been served . . . the Agency would have controverted the Union's
assertion that the Agency is obligated to bargain on the proposal . . .
." Id. The Agency argues that the Union's failure to serve the agency
head "severely prejudices the position and interest of the Agency and
constitutes 'extraordinary circumstances . . . .'" Id. at 2.
The Union argues that the Agency has not shown that extraordinary
circumstances exist so as to warrant reconsideration of the Authority's
decision. The Union asserts that, consistent with the statement of
service attached to its petition for review, it properly served the
Agency's head. The Union notes, however, that "the Postal Service
Return Receipt has been lost." Opposition at 1.
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 had not established extraordinary circumstances, within
the meaning of section 2429.17, to warrant reconsideration of our
decision in 39 FLRA No. 110. We note two things.
First, in accordance with section 2424.4(b) of the Authority's Rules
and Regulations, a petition for review must be served on the agency head
and on the agency's principal bargaining representative and, under
section 2429.27(c) of the Regulations, a signed and dated statement of
service must be included with a petition for review. Consistent with
these provisions, the Union included with its petition a signed and
dated statement of service indicating that the Union served its petition
on the Secretary of the Interior and on the Personnel Office of the
Bureau of Indian Affairs Portland Area Office.
The Agency claims that neither the Secretary of the Interior nor his
designee received a copy of the Union's petition. The Agency does not
claim, however, that the Personnel Officer of the Bureau of Indian
Affairs Portland Area Office did not receive a copy of the appeal.
Second, shortly after receipt of the Union's petition, the Authority
served notices reflecting such receipt on, as relevant here, the Agency
head's designee and the Personnel Officer of the Bureau of Indian
Affairs Portland Area Office. The Agency does not claim that the
Authority's notice was not received by either the Agency head's designee
or the Personnel Officer of the Bureau of Indian Affairs Portland Area
Office.
The Union's petition for review contained a proper statement of
service and otherwise complied fully with the Authority's Regulations.
In addition, even if the Agency head did not receive a copy of the
petition, there is no contention that the Agency's principal bargaining
representative was not served properly. Moreover, the Authority served
a notice of the petition on both the Agency head's designee and the
principal bargaining representative.
In these circumstances, we conclude that the Agency had adequate
knowledge that a petition for review had been filed and ample
opportunity to raise in a statement of position any issues concerning
the negotiability of the disputed proposal or the propriety of service
of the petition on the Agency head. As such, the Agency has not
established extraordinary circumstances warranting reconsideration of
our decision. Compare American Federation of Government Employees,
Local 3601 and U.S. Department of Health and Human Services, Public
Health Service, Indian Hospital, Claremore, Oklahoma, 38 FLRA 177 (1990)
(in absence of evidence or arguments to the contrary by the union, the
Authority concluded that the union's failure to serve the agency's
principal bargaining representative with a copy of the petition for
review, corrected pursuant to Authority's deficiency notice, constituted
extraordinary circumstances warranting grant of request for
reconsideration and reopening of record).
The Agency's motion for reconsideration of the Authority's Decision
in 39 FLRA No. 110 is denied.
40 FLRA 992
40 FLRA NO. 85
Dept. of Veterans Affairs, Veterans Administration Medical Center,
Boise, Idaho and AFGE, Local 1273, Case No. 9-CA-90575 (Decided May 24,
1991)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN
WAIVER
COLLECTIVE BARGAINING AGREEMENT
DIFFERING AND ARGUABLE INTERPRETATIONS
CLEAR AND UNMISTAKABLE
PLAUSIBLE INTERPRETATION
The Authority, in agreement with the Judge, found that the Respondent
violated 7116(a)(1) and (5) by refusing to bargain over a Union ground
rules proposal concerning the number of union negotiators who would
receive official time during mid-term negotiations. In so ruling, the
Authority reviewed its approach to be followed in cases involving an
alleged statutory violation and allegations that the collective
bargaining agreement permits the action that is alleged to constitute an
unfair labor practice. That is, to determine whether the charging party
has clearly and unmistakably waived its statutory rights. Applying that
to the instant case, the Authority concluded that the master agreement
contains no provision that waives the Union's right to bargain over the
changes involved in the case. In this regard, the Authority agreed with
the Judge that either of two interpretations of a clause at issue was
plausible. As such, the provision does not constitute clear and
unmistakable waiver.
Case No. 9-CA-90575
DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL
CENTER, BOISE, IDAHO
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1273, AFL-CIO
(Charging Party/Union)
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 in the
above-entitled proceeding. The complaint alleged that the Respondent
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to bargain
over a Union ground rule proposal concerning the number of union
negotiators who would receive official time during mid-term
negotiations. The Judge found that no violation of the Statute had
occurred and recommended that the complaint be dismissed.
The General Counsel filed exceptions to the Judge's decision and the
Respondent filed an opposition to the General Counsel'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. However, we find, contrary to the
Judge, that the Respondent violated section 7116(a)(1) and (5) of the
Statute as alleged.
The American Federation of Government Employees (AFGE) represents a
nationwide, consolidated bargaining unit of employees of the Department
of Veterans Affairs, including those employed by the Respondent. AFGE,
Local 1273 represents unit employees at the Respondent's facility.
The Department of Veterans Affairs and the AFGE are parties to a
national collective bargaining agreement (the master agreement).
Article 4, Sections 4 and 5 of the agreement provide as follows:
Section 4 -- Local Bargaining on National Changes
On all policies and directives or other changes for which the VA
meets its bargaining obligations at the national level, local
bargaining at individual facilities will be restricted to local
implementation unless there was agreement at the national level to
provide for local bargaining on the national subject. Local union
representatives shall receive official time for all time spent in
mid-term negotiations as provided under 5 USC Section 7131(a).
Section 5 -- Local Level Changes
Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request, the parties will negotiate as
appropriate. The union representatives shall receive official
time for all time spent in negotiations as provided under 5 USC
Section 7131(a).
Joint Exhibit 1 at 4.
In April 1989, the Respondent initiated local changes in working
conditions. The Union sought to bargain over ground rules for
negotiations over the changes. As one of its proposals, the Union
proposed that the Union's bargaining team consist of five members, all
of whom would be on official time. The Respondent refused to negotiate
on the Union's proposal.
The Judge noted that the disputed proposal was in the nature of a
ground rule for bargaining over changes in conditions of employment and
that there was no contention that "the subject matter of the changes
brought them outside the duty to bargain . . . ." Judge's Decision at 5.
The Judge stated, in this regard, that there was no provision in the
master agreement that "even arguably waives the Union's right to
bargain" over the changes proposed by the Respondent. Id. The Judge
noted also that "the subject of official time for the Union's
negotiators is within the normal scope of ground rules negotiations."
Id. Accordingly, the Judge concluded that the Respondent was "required
to bargain about (the changes)" and "over ground rules for the
negotiations over the changes." Id.
The Judge concluded, however, that the Respondent did not violate the
Statute by refusing to bargain on the disputed proposal because the
Respondent's refusal was based on a plausible interpretation of the
master agreement. The Judge relied, in this regard, on Department of
the Treasury Internal Revenue Service, Washington, D.C. and Internal
Revenue Service, Chicago, Illinois District Office, 33 FLRA 147, 154
(1988) (IRS, Chicago). In the Judge's view, under IRS, Chicago:
a party can avoid its liability under the enforcement provisions
of the Statute without bargaining over a negotiable subject, as
long as it can point to a provision in its contract that arguably
conflicts with the other party's subsequent proposal on that
subject.
Judge's Decision at 6. The Judge stated that although he had "serious
misgivings" about IRS, Chicago, he was "precedentially" bound to follow
that decision. Id.
Applying IRS, Chicago, the Judge concluded that the disputed proposal
arguably conflicted with the contract. The Judge credited testimony
from a Union representative that at the time Article 4, Section 5 was
agreed on, the Union understood that the provision did not waive the
Union's right to bargain over official time for more representatives
than otherwise would be required under section 7131(a) of the Statute.
The Judge stated, in this regard, that Article 4, Section 5 could
"reasonably be interpreted" as encompassing what section 7131(a)
"permits" rather than what section 7131(a) "'authorized as an
entitlement.'" Id. at 8 (emphasis in original).
The Judge also noted, however, that the Respondent interpreted
Article 4, Section 5 "as limiting the number of union negotiators on
official time to the number of management negotiators." Id. (emphasis in
original). In the Judge's view, the Respondent's interpretation of the
contract was plausible because the contract phrase "'provided under,'
(could) reasonably be interpreted as synonymous with the phrase,
'authorized under,' as used in section 7131(a)." Id. Accordingly, as
the Judge found that the Respondent's position was "a plausible
interpretation(,)" the Judge recommended that, consistent with IRS,
Chicago, the complaint be dismissed. Id. (emphasis in original).
The General Counsel contends that the Judge erred by concluding that
the case involved a question of arguable contract interpretation rather
than waiver of a statutory right. The General Counsel argues that the
"arguable contract interpretation" principle does not apply to a case,
such as this one, where an agency defends a refusal to bargain by
reliance on the parties' collective bargaining agreement. Exceptions at
2. The General Counsel argues that a union's statutory right, including
the right to negotiate over the number of union negotiators to receive
official time to bargain, may be relinquished only by "a clear and
unmistakable waiver of the right." Id. at 3. In the General Counsel's
view, since "a clear and unmistakable waiver" is required, "it is
logically impossible to hold that the statutory right can also be
eliminated because of an arguable contractual provision." Id. at 9. The
General Counsel argues, in this regard, that IRS Chicago was wrongly
decided and should be rejected by the Authority.
The Respondent asserts that the issue raised by the Union "is a
differing and arguable interpretation as to what was left to local
bargaining in supplemental negotiations . . . ." Respondent's Opposition
at 2. The Respondent argues that bargaining on the number of union
negotiators at the local level is inappropriate because "the number of
union negotiators at the local level, for all local negotiable subjects,
has been specifically provided for in the Master Agreement . . . ." Id.
The Respondent further argues that the Union fully exercised its right
to negotiate over the number of Union negotiators authorized to receive
official time and the results of the negotiations were incorporated into
Article 4, Sections 4 and 5 of the master agreement.
A. Appropriate Standard to Be Applied
In Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991)
(IRS), the Authority set forth the approach to be followed in cases
involving an alleged statutory violation and allegations that a
collective bargaining agreement permits the action that is alleged to
constitute an unfair labor practice. We rejected an approach that would
dismiss complaints alleging a violation of a statutory right based on a
finding that the parties have proffered differing and arguable
interpretations of a collective bargaining agreement. We noted that a
"differing and arguable" analysis would permit a respondent to violate
protected rights based solely on an arguable or plausible interpretation
of an agreement without any necessity of proving that its interpretation
is correct. We concluded that use of a "differing and arguable"
analysis in such cases was inconsistent with the purposes and policies
of the Statute and stated that, to the extent that previous Authority
decisions applied such an analysis, those decisions would no longer be
followed.
In IRS, the Authority reaffirmed that "(t)he established approach .
. . to resolve defenses based on a collective bargaining agreement to
alleged interference with statutory rights is to determine whether the
charging party has clearly and unmistakably waived its statutory right."
Id. at 1574. Consistent with IRS, we resolve complaints, such as the
one now before us, by determining whether the union clearly and
unmistakably waived its statutory rights. See, for example, Marine
Corps Logistics Base, Barstow, California, 39 FLRA 1126 (1991) (union
did not clearly and unmistakably waive its right to bargain over the
impact and implementation of changes in the agency's performance
appraisal system); Department of the Army, U.S. Army Finance and
Accounting Center, Indianapolis, Indiana, 39 FLRA 1586 (1991) (Authority
agreed with judge's conclusion that, pursuant to collective bargaining
agreement and subsequent settlement agreement, the union clearly and
unmistakably waived its right to determine the number of union
representatives for bargaining). Compare Naval Aviation Depot, Norfolk,
Virginia, 39 FLRA 1597 (1991) (as matter over which the union sought to
bargain was covered by a provision in the parties' contract and as there
was no allegation that the agreed-upon procedures were not followed,
agency did not violate the Statute by refusing to bargain over union
proposals concerning the matter).
B. Application of the Standard to This Case
The Judge concluded that there was no provision in the master
agreement that "even arguably waives the Union's right to bargain
locally over changes." Judge's Decision at 5. The Judge found, instead,
that Article 4, Section 5 of the master agreement specifically
authorized local bargaining over changes affecting unit employees
conditions of employment which were initiated by local management. We
conclude, in agreement with the Judge, that the master agreement
contains no provision that waives the Union's right to bargain over the
changes involved in this case.
We conclude also that the Union did not clearly and unmistakably
waive its right to bargain over the number of Union representatives to
be authorized official time to bargain. We note, in this regard, that a
union is entitled under the Statute to propose that official time be
granted to more union representatives than the number to which it is
entitled under section 7131(a) of the Statute. See American Federation
of Government Employees, AFL-CIO, and U.S. Environmental Protection
Agency, 15 FLRA 461, 463 (1984) ("there is no indication that Congress
intended to preclude negotiation of official time beyond that authorized
as an entitlement in section 7131(a)."). The Judge concluded, based on
his evaluation of the evidence and testimony before him, including
specific evidence and testimony regarding the parties' bargaining
history concerning Article 4, Section 5, that the provision could
"reasonably be interpreted" as not foreclosing the disputed proposal in
this case. Judge's Decision at 8. That is, although the Judge found
that the Respondent's position regarding that provision was "a plausible
interpretation()" he found that an equally plausible interpretation
supported the Union's position. Id. (emphasis in original).
We agree with the Judge that either interpretation of the provision
is plausible. As such, and consistent with the testimony concerning
bargaining history credited by the Judge, we conclude that the provision
does not constitute a clear and unmistakable waiver of the Union's right
to bargain over the disputed proposal. See IRS, 39 FLRA at 1575.
Accordingly, we find that the Respondent violated section 7116(a)(1) and
(5) when it refused to bargain on the Union's ground rule proposal.
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 Veterans Affairs, Veterans Administration
Medical Center, Boise, Idaho, shall:
1. Cease and desist from:
(a) Refusing to bargain with the American Federation of Government
Employees, Local 1273, AFL-CIO, the exclusive representative of its
employees, on ground rules proposals concerning the number of Union
negotiators authorized to receive official time for mid-term bargaining.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
Local 1273, negotiate on the Union's ground rule proposal concerning the
number of Union negotiators authorized to receive official time for
mid-term bargaining.
(b) Post at the Veterans Administration Medical Center, Boise, Idaho
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 Director of the VAMC Boise and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and shall be maintained for
60 consecutive days thereafter. 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, 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.
WE WILL NOT refuse to bargain with the American Federation of
Government Employees, Local 1273, AFL-CIO, the exclusive representative
of our employees, on ground rule proposals concerning the number of
Union negotiators authorized to receive official time for mid-term
bargaining.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, Local 1273, AFL-CIO, bargain in good faith on the Union's
ground rule proposal concerning the number of union negotiators
authorized to receive official time for mid-term bargaining.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
Case No. 9-CA-90575
DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL
CENTER, BOISE, IDAHO
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1273, AFL-CIO
Charging Party
R. Timothy Shiels, Esquire, For the General Counsel
William F. Helfrick, Esquire, For the Respondent
Before: JESSE ETELSON, Administrative Law Judge
The Respondent (Medical Center) initiated some changes in working
conditions for employees represented by the Charging Party (the Union).
The Union submitted proposals for the ground rules for negotiating about
the changes. The Medical Center refused to bargain over the Union's
ground rule proposal that its bargaining team should consist of five
members, all of whom would be on official time. The Medical Center
asserts that the applicable collective bargaining agreement insulates it
from bargaining over this proposal.
A complaint issued by the Regional Director for Region IX of the
Federal Labor Relations Authority alleges that the Medical Center, by
its refusal to negotiate over the Union's proposal, is engaging in an
unfair labor practice within the meaning of sections 7116(a)(1) and (5)
of the Federal Service Labor-Management Relations Statute (FSLMRS or the
Statute). A hearing was held in Boise, Idaho, on March 15, 1990. The
parties presented evidence and filed briefs. /1/
The Medical Center's facility is part of a nationwide consolidated
bargaining unit of employees of the Department of Veterans Affairs
(formerly Veterans Administration) represented by the American
Federation of Government Employees (AFGE), the parent organization of
which the Union is a local affiliate. The Veterans Administration and
AFGE executed their first national collective bargaining agreement (the
master agreement) in 1982, and this agreement was still in effect at the
time of the hearing, having been automatically renewed under its terms.
Under the heading, "Local Level Changes," the agreement provides: /2/
Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request, the parties will negotiate as
appropriate. The union representatives shall receive official
time for all time spent in negotiations as provided under 5 USC
Section 7131(a) (emphasis added). /3/
The time came when the Medical Center initiated some local changes in
working conditions. The Union sought to negotiate ground rules for the
substantive bargaining over these changes. Among its ground rules
proposals was one to the effect that the Union's bargaining team would
consist of one chief negotiator and four other members, all of whom
would be on official time. The Medical Center refused to negotiate over
this proposal, and this case resulted.
Over the objection of Counsel for the General Counsel, I permitted
testimony by Howard Steinwandel, who had served as chief negotiator for
management in negotiating the master agreement, concerning the
background of certain provisions of the agreement that are relevant or
arguably relevant to the refusal to bargain at issue here. Mr.
Steinwandel testified that "the intent" of those provisions which
granted official time for local bargaining "as provided under 5 USC
Section 7131(a)" was both to provide official time to as many union
representatives as there were management representatives and to limit
the union representatives on official time to that number. Steinwandel
expressed this several times, in different ways. It does not qualify,
however, as an evidentiary fact. It is conclusionary except to the
extent that it reflect's Steinwandel's understanding of what management
intended when it agreed to those provisions. To that extent, and to
that extent only, I credit him.
I also credit Steinwandel's uncontradicted testimony that the Union
had sought, unsuccessfully, to provide for additional representatives on
official time. More troublesome is his further testimony that
management's response was to take the position that it would give the
Union "as many as provided by 7131 and no more." In considering this
testimony, I place beside it the testimony of Artie Pierce, one of
AFGE's negotiators of the master agreement, who swore that, on his side
of the bargaining table, "we knew that under 7131(d) we had the option
to enter negotiations and change the size of the bargaining unit (sic)
so we felt rather comfortable without necessarily putting (the right to
more members on official time) into the contract."
Evaluation of Pierce's testimony, in turn, requires reference to the
pertinent language of "7131(d)" (section 7131(d) of the Statute):
(d) Except as provided in the preceding subsections of this
section -- (1) any employee representing an exclusive
representative . . . . shall be granted official time in any
amount the agency and the exclusive representative involved agree
to be reasonable, necessary, and in the public interest.
Passing over the question of whether Pierce interpreted section
7131(d) correctly, I credit his honest belief (reflecting the Union
team's understanding at the time) that the Union's failure to obtain
language in the contract which granted to the Union a larger bargaining
team, on official time, did not preclude later negotiations for more
members on official time. Thus, while I also credit Steinwandel's
testimony that management stated it would "give . . . as many as
provided by 7131 and no more," I take that at no more than its literal
meaning -- that it was management's position that the contract would not
provide for any more than section 7131(d) provided. As for
Steinwandel's ability to supply a definitive explanation for the
contract language granting official time "as provided under 5 USC
Section 7131(a)", it is noteworthy that he was unable to recall whether
the idea for it originated with management or the Union.
The FSLMRS requires a federal agency to negotiate in good faith
with the chosen representative of employees covered by the
Statute, 5 U.S.C. Section 7114(a)(4), and makes it an unfair labor
practice to refuse to do so, Section 7116(a)(5). The scope of the
negotiating obligation is set forth in Section 7102, which confers
upon covered employees the right, through their chosen
representative, "to engage in collective bargaining with respect
to conditions of employment." 5 U.S.C. Section 7102(2). Section
7103 defines "conditions of employment" as follows:
"'conditions of employment' means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions . . . ."
Fort Stewart Schools v. FLRA, . . . U.S. . . ., 110 S.Ct. 2043, 2045-6
(1990). In this roundabout way, the Statute defines the scope of an
agency's obligation to bargain.
The union proposal about which the Medical Center refused to bargain
was a proposal for ground rules for negotiating over changes in working
conditions. Absent any evidence or contention that the subject matter
of the changes brought them outside the duty to bargain (either over the
decision to make the changes or over their impact and implementation),
the undisputed fact that they were changes in "working conditions"
brings them within the section 7103 definition of "conditions of
employment" and establishes that the Medical Center was required to
bargain about them. That being so, the Medical Center was equally
obligated to bargain over ground rules for the negotiations over the
changes. Department of Defense Dependent Schools, 14 FLRA 191, 193
(1984); U.S. Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524,
533 (1990). Moreover, the subject of official time for the Union's
negotiators is within the normal scope of ground rules negotiations.
See Environmental Protection Agency, 16 FLRA 602, 613 (1984), remanded
on other grounds, 784 F.2d 1131 (D.C. Cir. 1986).
The Medical Center takes the position, initially, that the national
master agreement limits the Medical Center's obligation to bargain at
the local level to such matters and under such conditions as the
agreement provides for. This position cannot be sustained, for it
ignores the fact that, as found above, there is a statutory duty to
bargain over matters such as the Union's ground rules proposal. The
Medical Center's burden, then, is to show that the Union has clearly and
unmistakably waived its right to enforce that duty. 22 Combat Support
Group (SAC), March Air Force Base, California 25 FLRA 289, 290 n. 2
(1987).
The issue of the level of bargaining (national vs. local) is a false
issue in this case. The Medical Center points to no provision in the
master agreement that even arguably waives the Union's right to bargain
locally over local changes. Rather, the section of the agreement most
pertinent to the Medical Center's defense (quoted fully ante at 2),
specifically authorizes local bargaining over "changes affecting . . .
conditions of employment which are initiated by local management at a
single facility." The only serious issue here is whether that part of
the section that grants official time "as provided under 5 USC Section
7131(a)" precludes a finding that the Medical Center committed an unfair
labor practice when it refused to bargain over the Union's proposal.
The Medical Center contends that it refused to bargain over the
Unions's proposal in reliance on an arguable interpretation of the
master agreement, and that this insulates its refusal to bargain from
being treated as an unfair labor practice. The General Counsel argues,
on the other hand, that the issue is one of waiver -- that the
applicable contract terms cannot insulate the Medical Center's conduct
unless they constitute a clear and unmistakable waiver of the Union's
right to negotiate for a larger bargaining team, on official time, than
management's bargaining team.
I am constrained to adopt the Medical Center's statement of the issue
to be decided. In Department of the Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Chicago, Illinois
District Office, 33 FLRA 147, 154 (1988) (IRS, Chicago), the Authority
held that notwithstanding an agency's failure to establish a waiver of a
union's statutory right, it could avoid an unfair labor practice finding
by asserting a plausible argument that the proposal over which the union
sought to negotiate "conflicts with the contract." The Authority found
that the agency's assertion was "plausible and constitutes an arguable
interpretation of the contract" while acknowledging that the contract
was silent on the subject of the union's proposal. I am forced to
conclude that this holding means that a party can avoid its liability
under the enforcement provisions of the Statute without bargaining over
a negotiable subject, as long as it can point to a provision in its
contract that arguably conflicts with the other party's subsequent
proposal on that subject.
Counsel for the General Counsel cites Department of the Navy, United
States Naval Supply Center, San Diego, California, 31 FLRA 1088 (1988)
as supporting the applicability of the waiver test. I do not read that
decision as necessarily in conflict with IRS, Chicago, but to the extent
that it may be, IRS, the later decision, controls.
Having concluded that I am precedentially bound by IRS, I also find
myself duty bound to express serious misgivings about the legitimacy of
the approach IRS takes toward the problem of sorting out issues of
contract interpretation and issues of waiver of statutory rights. In
stepping beyond an administrative law judge's traditional role of
reflecting existing agency policy, I take my cue from Judge Merritt
Ruhlen, who, in his Manual for Administrative Law Judges (revised ed.
1982) at 80, admonishes ALJ's that, while they should follow agency
policy, they also have a responsibility "to call the attention of the
agency . . . to an important problem of law or policy."
In what I respectfully believe to be a refutation of the IRS
approach, the Supreme Court has held that it should not be inferred
"from a general contractual provision that the parties intended to waive
a statutorily protected right unless the undertaking is 'explicitly
stated.' More succinctly, the waiver must be clear and unmistakable."
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). And although
Metropolitan Edison involved rights under the National Labor Relations
Act, the Court has made it clear that waivers sought to be established
by virtue of provisions in collective bargaining agreements must meet
the same standard when the waivable right arises under other statutes.
See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10
n.9 (1988).
Before IRS, Chicago, the Authority had applied the "clear and
unmistakable" standard to alleged contractual waivers of the right to
bargain, in a manner "consonant with case law in the private sector."
Internal Revenue Service, 29 FLRA 162, 166 (1987). Earlier, and
consistent with this approach, Judge Arrigo had occasion to explain what
I believe to be the proper distinction between contract interpretation
cases and waiver cases:
(C)ases wherein the essence of the unfair labor practice
conduct involves differing but arguable interpretations of the
agreement are limited to those situations wherein the union's
right . . . essentially arose through the collective bargaining
agreement and the meaning of the contract must be resolved in
order to ascertain whether that right . . . actually exists. Such
is not the case . . . where the existence of the Union's statutory
right is clear and the question is whether the Union engaged in
conduct which limited that right.
Department of Defense Dependent Schools, Mediterranean Region (Madrid,
Spain); and Zaragoza Elementary School (Zaragoza, Spain), Case No.
1-CA-50145 (1986), ALJ Decision Reports, No. 62 (Aug. 29, 1986), slip
op. at 16. Two years later, Judge Arrigo had what turned out to be the
IRS, Chicago, case before him. He decided that it presented a question
of waiver, not of contract interpretation. 33 FLRA at 172. However, the
Authority overruled that conclusion, holding, as stated above, that the
existence of differing and arguable interpretations of the contract
precluded an unfair labor practice finding, notwithstanding the silence
of the contract on the subject on which the union sought to negotiate.
I am, respectfully, unable to reconcile this approach with the
Supreme Court's waiver doctrine. I do not believe that the Court
recognizes a ground, other than waiver, of dispensing with a statutory
right. I also believe that the substantive statutory right, if it
exists, carries with it the right to enforcement through an unfair labor
practice proceeding. The IRS approach seems to stand the waiver
doctrine on its head and in effect to place on the party with the
statutory rights the burden of showing, beyond plausible argument, that
it did not waive these rights.
Meanwhile, the instant case must be resolved in accordance with IRS,
Chicago. The Medical Center interprets the contract provisions giving
union representatives official time "as provided under 5 USC Section
7131(a)" as limiting the number of union negotiators on official time to
the number of management negotiators. It is a plausible interpretation.
Section 7131(a) "authorize(s)" official time for the purpose of
representing a union in negotiations, but "(t)he number of employees for
whom official time is authorized under this subsection shall not exceed
the number of individuals designated as representing the agency for such
purpose." The contractual phrase, "provided under," can reasonably be
interpreted as synonymous with the phrase, "authorized under," as used
in section 7131(a). The phrase could also reasonably be interpreted as
meaning to whatever extent section 7131(a) permits. (Section 7131(a)
does not preclude negotiation of official time beyond that "authorized
as an entitlement." American Federation of Government Employees, AFL-CIO
and U.S. Environmental Protection Agency, 15 FLRA 461, 463 (1984)). In
that case, the phrase, "provided under," would leave open the option of
future negotiations. As the first (the Medical Center's) interpretation
is a plausible one, however, the proposal arguably conflicts with the
contract, IRS controls, and the complaint must be dismissed. /4/
I therefore recommend that the Authority issue the following order:
The complaint is dismissed.
Issued, Washington, D.C., November 9, 1990.
/s/JESSE ETELSON
JESSE ETELSON
Administrative Law Judge
(1) At the hearing, I sustained an objection to a question asked by
Counsel for the General Counsel on the ground that the answer called for
hearsay. I am now inclined to doubt my authority to exclude evidence on
hearsay grounds. See the Authority's Rules and Regulations, Section
2423.17. However, this exclusion does not affect the outcome of the
case.
(2) A companion section of the agreement contains a similar provision
for official time for "Local Bargaining on National Changes." However,
as will become clear, it is the meaning of the quoted "Local Level
Changes" section that is crucial here.
(3) "Section 7131. Official Time
(a) Any employee representing an exclusive representative in the
negotiation of a collective bargaining agreement under this chapter
shall be authorized official time for such purposes . . . during the
time the employee otherwise would be in a duty status. The number of
employees for whom official time is authorized under this subsection
shall not exceed the number of individuals designated as representing
the agency for such purposes."
(4) I would agree with the result compelled by IRS, for different
reasons, only if it were clear that the parties had bargained to some
agreement on the number of union negotiators on official time. See
Department of the Army, U.S. Army Finance and Accounting Center,
Indianapolis, Ind., Case No. 5-CA-80403 (Apr. 6, 1989), exceptions
pending; United Mine Wkrs., Dist. 31 v. NLRB, 879 F.2d 939 (D.C. Cir.
1989). The Authority has recently hinted at a compatible approach. See
U.S. Department of the Treasury, Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Cincinnati, Ohio, District Office, 37
FLRA No. 115, slip op. at 7-8 (1990).
40 FLRA 985
40 FLRA NO. 84
NTEU, Chapter 251 and Dept. of the Treasury, Internal Revenue
Service, Washington, D.C. (Bowers, Arbitrator), Case No. 0-AR-1906
(Decided May 24, 1991)
7122(a)
7114(c)(1) and (2)
ARBITRATION EXCEPTION
AGENCY HEAD DISAPPROVAL
The Arbitrator found that under provisions of the agreement, five of
the grievants were entitled to have been promoted earlier than the date
of which the Agency effected their promotions. The Authority concluded
that the Arbitrator's enforcement of a particular provision of the
agreement was contrary to section 7114(c). The Authority noted that
7114(c) establishes a process for the approval of agreements by agencies
and when provisions of an agreement are disapproved pursuant to that
section, the agreement does not go into effect and is not enforceable,
although parties may agree to implement provisions of the agreement not
disapproved. In the instant case, it is undisputed that 49 provisions
of the agreement had been disapproved. Accordingly, the provision
relied upon by the Arbitrator never took effect and was not enforceable.
It was also noted that the provision relied upon by the Arbitrator was
one of the 49 disapproved.
The Authority modified the award by striking the granting of the
grievance with respect to the tax law specialists and the ordering of
retroactive promotions with backpay and interest.
Case No. 0-AR-1906
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 251
(Union)
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
WASHINGTON, D.C.
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Mollie H. Bowers 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 under provisions of the parties' collective
bargaining agreement, five of the grievants were entitled to have been
promoted earlier than the date on which the Agency effected their
promotions.
For the reasons which follow, we conclude that the Arbitrator's
enforcement of these provisions is contrary to the Statute, and we will
modify the award accordingly.
The employees of the Agency have been represented by the Union since
1987 in a unit consisting of professional employees (attorneys and tax
law specialists) and nonprofessional employees. On July 8, 1988, the
parties agreed to their first term collective bargaining agreement, and
the agreement was submitted for agency-head review in accordance with
section 7114(c) of the Statute. On August 3, 1988, pursuant to section
7114(c), the Agency disapproved 49 provisions of the agreement. Among
the provisions disapproved was Article 22, Section 6 pertaining to
career ladder promotions. As negotiated by the parties, Article 22,
Section 6(A) provided:
Employees in career ladder positions will be promoted on the first
pay period after: 1. the employee becomes eligible to be
promoted . . . ; and 2. the employee is capable of
satisfactorily performing at the next higher level.
The remainder of the collective bargaining agreement was put into effect
by the parties in September 1988, and the Union petitioned the Authority
for review of the negotiability issues raised by the disapproval. At
all material times during this case, the Union's petition was pending
before the Authority as Case No. 0-NG-1582. /1/
Effective October 1, 1988, the Agency's Office of Chief Counsel was
reorganized, and, as a result, 35 employees, including both attorneys
and tax law specialists, were promoted noncompetitively to GS-14. All
of these employees were eligible for promotion on the basis of having
been at the GS-13 level for at least 1 year and having been recommended
for promotion by their supervisors. Their promotions were effective
October 23, 1988.
Thirteen of these employees filed a grievance--five tax law
specialists, who are in the competitive service, and eight attorneys.
The grievants alleged that under provisions of the parties' collective
bargaining agreement, including specifically Article 22, Section 6, they
should have been promoted effective October 9, 1988, the beginning of
the first pay period after the reorganization. The grievance was not
resolved and was submitted to arbitration.
Before the Arbitrator, the Union argued that based on the Agency's
statement of position filed in 0-NG-1582, the Agency had disapproved
Article 22, Section 6 only as it applied to excepted service employees.
The Union maintained that the provision was enforceable with respect to
competitive service employees and that 12 of the 13 grievants are
competitive service employees. The Agency argued that Article 22,
Section 6 was disapproved in its entirety and the disapproval was
unaffected by the Agency's statement of position in 0-NG-1582. The
Agency claimed that Article 22, Section 6 was not enforceable as to any
category of employee in view of the Union's failure to have renegotiated
the contested language. The Agency further claimed that, even if the
Union's position were accepted, only the tax law specialists are in the
competitive service because the attorney grievants were converted to the
excepted service as a result of the reorganization.
The Arbitrator stated the issue to be whether there was a contract
provision in effect in October of 1988 that required the promotion of
the 13 grievants on October 9, 1988. The Arbitrator found that Article
22, Section 6 was in effect and was enforceable with respect to
competitive service employees. The Arbitrator concluded that the
Agency's disapproval of Article 22, Section 6 "(wa)s modified by its
brief to the FLRA" in which this provision was "only alleged to be
non-negotiable with respect to excepted service employees(.)" Award at
10. The Arbitrator determined that, contrary to the Agency's position,
"there (wa)s no need to specifically renegotiate this language since
both parties share(d) a common understanding of the scope of Article
22." Id.
With respect to the five tax law specialists, the Arbitrator ruled
that they were covered by Article 22, Section 6 because they were
competitive service employees and that they had fulfilled the
contractual requirements. Accordingly, the Arbitrator held that they
were entitled to have been promoted effective October 9, 1988, and she
awarded them promotions retroactive to that date with backpay and
interest.
The Arbitrator denied the grievance with respect to the eight
attorneys. She ruled that they were not covered by Article 22, Section
6 because the Union had failed to prove that they were in the
competitive service and that they were not otherwise entitled to have
been promoted earlier than they had been.
A. The Agency's Exceptions
The Agency contends that the award is contrary to law and that the
Arbitrator exceeded her authority.
The Agency argues that Article 22, Section 6 was never part of the
parties' collective bargaining agreement and that, consequently, by
granting relief on a nonexistent provision, the award is contrary to
law. The Agency notes that on August 3, 1988, pursuant to section
7114(c) of the Statute, the Agency disapproved numerous provisions of
the parties' collective bargaining agreement, including Article 22,
Section 6, and that the parties' collective bargaining agreement was put
into effect without the disapproved provisions. The Agency asserts that
Article 22, Section 6 was disapproved in its entirety and that no
evidence exists to the contrary. The Agency further asserts that its
statement of position filed in 0-NG-1582 did not, and could not, modify
the disapproval that precluded Article 22, Section 6 from becoming
enforceable. The Agency maintains that only an express agreement of the
parties, which did not exist in this case, could have reinstated Article
22, Section 6 as part of the collective bargaining agreement.
The Agency contends that the Arbitrator exceeded her authority by
ruling on a negotiability issue that must be resolved exclusively by the
Authority. The Agency asserts that by deciding that Article 22, Section
6 is part of the parties' collective bargaining agreement for
competitive service employees, the Arbitrator has impermissively usurped
the Authority's prerogative to determine the negotiability issue of
whether Article 22, Section 6 is to any extent negotiable.
B. The Union's Opposition
The Union contends that the Agency fails to establish that the award
is contrary to law. The Union asserts that the Agency's exception
constitutes nothing more than disagreement with the Arbitrator's
interpretation and application of the parties' collective bargaining
agreement and the Arbitrator's findings of fact.
The Union maintains that the Arbitrator found that the Agency had
modified or clarified its disapproval of Article 22, Section 6 when it
stated in its statement of position in 0-NG-1582 that the provision was
disapproved insofar as it applied to excepted service employees. The
Union further maintains that, consequently, the Arbitrator found as a
matter of fact that Article 22, Section 6 was in effect for competitive
service employees. The Union claims that, therefore, the Agency's
exception constitutes nothing more than disagreement with this finding
of fact by the Arbitrator and provides no basis for finding the award
deficient.
The Union further claims that it is clear that the award is based on
the Arbitrator's interpretation and application of the parties'
collective bargaining agreement. The Union asserts that nothing in the
Arbitrator's interpretation of the agreement has been shown to be
implausible, unfounded, or irrational and that, consequently, no basis
is provided for finding the award deficient.
The Union also contends that the Agency fails to establish that the
Arbitrator exceeded her authority by ruling on a negotiability issue.
The Union maintains that the Arbitrator merely determined based on the
record that Article 22, Section 6 was declared nonnegotiable by the
Agency only with respect to excepted service employees. In the Union's
view, it was not the Arbitrator who declared Article 22, Section 6 to be
nonnegotiable insofar as it applied to excepted service employees, but
the Agency. The Union asserts that the Arbitrator only applied that
declaration by the Agency in resolving the grievance.
We conclude that the Arbitrator's enforcement of the provisions of
Article 22, Section 6 is contrary to section 7114(c) of the Statute.
Section 7114(c) of the Statute establishes a process for the approval
of collective bargaining agreements by agencies. Section 7114(c)(1)
provides that the agreement "shall be subject to approval by the head of
the agency." Section 7114(c)(2) establishes a 30-day time limit for this
approval process. In addition, section 7114(c)(3) provides that a
collective bargaining agreement automatically becomes effective and
binding on the parties, subject to applicable law, rule, or regulation,
if the agency head or designee has not acted to approve or disapprove
the agreement within the 30-day period. Thus, by the plain language of
section 7114(c), it is collective bargaining agreements and not specific
provision of those agreements that are approved or disapproved by agency
heads under section 7114(c). See U. S. Department of the Army,
Watervliet Arsenal, Watervliet, New York and National Federation of
Federal Employees, Local 2019, 34 FLRA 98, 105 (1989) (citing Department
of the Interior, National Park Service, Colonial National Historical
Park, Yorktown, Virginia, 20 FLRA 537, 541 (1985) (Colonial National
Historical Park), aff'd sub nom. National Association of Government
Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986)).
Consequently, when provisions of a collective bargaining agreement are
timely disapproved by the agency head under section 7114(c), the
collective bargaining agreement does not go into effect and is not
enforceable under provisions of section 7114(c). Id. (citing Department
of the Interior, Washington, D.C., 31 FLRA 267, 276 (1988)). Of course,
the parties may agree to implement provisions of the agreement not
disapproved by the agency, and by such agreement those provisions would
take effect and would be enforceable. Id. (citing Colonial National
Historical Park, 20 FLRA at 541 n.6).
It is not disputed that, within the 30-day approval period under
section 7114(c), the designee of the Agency head disapproved 49
provisions of the parties' collective bargaining agreement. As a
result, applying the approval process under section 7114(c) of the
Statute, as it has been interpreted by the Authority, Article 22,
Section 6 never took effect and was not enforceable by the Arbitrator.
Further, it is not disputed that, consistent with Authority precedent,
the parties subsequently agreed to put into effect those provisions of
the collective bargaining agreement that had not been disapproved by the
Agency. It also is not disputed that Article 22, Section 6 was
specifically disapproved, without qualification, on August 3, 1988, and
was not subject to any subsequent agreement or renegotiation by the
parties. Therefore, by operation of section 7114(c) of the Statute,
Article 22, Section 6 never took effect. We further note that in our
decision in Office of Chief Counsel, we dismissed the Union's petition
for review with respect to Article 22, Section 6, rather than ordering
the disapproval rescinded.
Accordingly, we find that the award is deficient and must be
modified. We reject, as contrary to section 7114(c), the Arbitrator's
ruling that the disapproval of Article 22, Section 6 was modified by the
Agency's brief in Office of Chief Counsel such that there was no need to
specifically renegotiate this language. To the contrary, under section
7114(c), the Agency's disapproval of Article 22, Section 6 was
unaffected by its brief in Office of Chief Counsel and required specific
renegotiation by the parties to put into effect and make enforceable any
collective bargaining agreement provisions for career ladder promotions.
Because we have found the award contrary to section 7114(c) of the
Statute, we reject the Union's arguments that the Agency's exceptions
constitute nothing more than disagreement with the Arbitrator's findings
of fact and her interpretation and application of the collective
bargaining agreement. Therefore, we will modify the award to strike
enforcement of Article 22, Section 6. /2/
The award is modified by striking the granting of the grievance with
respect to the tax law specialists and the ordering of retroactive
promotions with backpay and interest.
(1) After the Arbitrator's award and the filing of the Agency's
exceptions and the Union's opposition in this case, we resolved the
Union's petition for review in National Treasury Employees Union and U.
S. Department of the Treasury, Office of Chief Counsel, Internal Revenue
Service, 39 FLRA 27 (1991), decision on reconsideration 40 FLRA No. 67
(1991), petition for review filed by the Agency sub nom. U.S.
Department of the Treasury v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25,
1991) (Office of Chief Counsel). We found that Article 22, Section 6
was nonnegotiable, and we ordered the Union's petition dismissed as to
that provision. 39 FLRA at 61-65, 76.
(2) In view of this decision, it is unnecessary to resolve whether
the Arbitrator exceeded her authority.
40 FLRA 973
40 FLRA NO. 83
General Services Administration, Region IX, San Francisco, California
and AFGE, Case No. 9-CA-00160 (Decided May 24, 1991)
7116(a)(1) and (2)
UNFAIR LABOR PRACTICE
The Authority adopted the Judge's recommended finding that the
Respondent did not violate 7116(a)(1) and (2) because Respondent did
not, as alleged, issue a two-day suspension to an employee because he
filed grievances and used official time.
Case No. 9-CA-00160
GENERAL SERVICES ADMINISTRATION REGION IX SAN FRANCISCO, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO
(Charging Party)
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 did not violate
section 7116(a)(1) and (2) of the Federal Service Labor-Management
Relations Statute (the Statute) because the Respondent did not, as
alleged, issue a two-day suspension to an employee because he filed
grievances and used official time. The Judge recommended that the
complaint be dismissed. The Charging Party filed exceptions to the
Judge's decision. The Respondent did not file an opposition to the
Charging Party'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. Consistent with the foregoing discussion we
find that no prejudicial error was committed and we affirm the rulings.
Upon consideration of the Judge's Decision and the entire record, we
adopt the Judge's findings, conclusions and recommended Order.
The Complaint in this case is dismissed.
Case No. 9-CA-00160
GENERAL SERVICES ADMINISTRATION, REGION IX, SAN FRANCISCO CALIFORNIA
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Deborah Finch, Representative of the Respondent
Terry Fox, Representative of the Charging Party
Lisa L. Katz, Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER, Administrative Law Judge
The unfair labor practice complaint alleges that Respondent (GSA)
violated section 7116(a)(1) and (2) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. Sections
7116(a)(1) and (2), by issuing to an employee, Theodore R. Helminski, a
two day suspension from duty and pay because he filed grievances and
used official time, activities protected by the Statute.
Respondent's answer admitted the jurisdictional allegations as to
Respondent, the Union, and the charge, but denied any violation of the
Statute.
For the reasons discussed below, I find that a preponderance of the
evidence does not establish that Respondent violated the Statute as
alleged.
A hearing was held in San Francisco, California. The Respondent,
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. The Respondent
and General Counsel filed helpful briefs and the proposed findings have
been adopted where found supported by the record as a whole. Based on
the entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
A. Helminski's Protected Activity
At all times material herein, Theodore R. Helminski has been employed
by Respondent as a construction engineer in the bargaining unit
represented by the American Federation of Government Employees, AFL-CIO
(AFGE). Helminski became the Principal Representative of AFGE for
Respondent's office at 525 Market Street in San Francisco in
approximately March 1989.
In his capacity as Principal Union Representative, Helminski has
advised employees about grievance procedures, filed grievances for
employees, represented employees in oral hearings on disciplinary
matters, represented one employee before the Merit Systems Protection
Board (MSPB), filed group grievances, and filed grievances on his own
behalf.
Between August and December of 1989, Helminski filed many grievances,
about 15 on his own behalf under the parties' collective bargaining
agreement. All of Helminski's own grievances involved complaints
against his immediate supervisor, John G. Day, Acting Branch Chief,
Construction Management Branch. He filed nine or ten of these
grievances in October, including one grievance on October 6, 1989
specifically complaining about being given too many constructability
reviews at a time when he was presenting a case before the MSPB "as well
as serving on the CQM (Construction Quality Management) Selection
Committee."
Day was the deciding official at the first step of the grievance
procedure. Most of these grievances were raised to the second step of
the grievance procedure where the deciding official was the Assistant
Regional Administrator, who was first Aki Nakao and later Richard Welsh.
Helminski also assisted at least three other bargaining unit
employees in filing grievances in the Fall of 1989. Within this same
time frame he also filed two group grievances, one of which was filed on
October 12 and also involved John Day.
Helminski's Union activities, particularly his work on the MSPB
appeal, took up a great deal of time. The MSPB appeal was filed on
September 8, 1989 and the hearing was held on December 8, 1989. He was
spending about four hours per day working on the MSPB appeal. This was
the first time that Helminski had worked on an MSPB appeal, so it took
him extra time.
Under the terms of the parties' National Agreement, Article 6,
Section 3.C., Union representatives are authorized official time to
represent bargaining unit employees before certain agencies including
the MSPB "as determined by these authorities." While he was working on
the MSPB appeal, Helminski was told by Joyce Williams, the personnel
specialist representing Respondent in the matter, that he was prohibited
from using official time to work on the MSPB appeal. After he
complained to the Administrative Law Judge handling the case, that issue
was dropped and he was allowed to use official time.
From September 25 through November 2 approximately 208 working hours
were available to Helminski. Of these, Helminski requested and was
authorized at least 72 hours of official time for various Union
activities. Helminski was never denied the amount of official time he
requested. However, Helminski acknowledges that he was not always
careful about accounting for his time and that he was not on official
time when he filed nine or ten grievances on his own behalf. This
activity consumed from 10-15 hours in October. There is no evidence
that management was aware of this unreported use of duty time.
B. Helminski's Work on the Source Selection Board
A Source Selection Board is a group of three or four GSA employees
who review proposals by Construction Quality Management firms (CQMs)
competing to oversee the administration of GSA construction contracts.
The Source Selection Board makes a recommendation about which CQM will
be awarded the contract based on the Board's review and evaluation of
the CQM's proposals.
On September 14, 1989 Helminski was assigned to work on a Source
Selection Board to evaluate the proposals of six CQMs. John Day gave
him the assignment with the statement that "time was of the essence and
please get with it. . . ." /1/ No specific deadline for completion of
the work was given. Immediately thereafter, Helminski left the office
on travel status followed by approved annual leave and did not return
until September 25, 1989.
When Helminski returned to the office on September 25, 1989 he signed
several forms. Included was a "Statement of Conflict of Interest"
certifying that neither he nor any member of his family had "any direct
financial or employment interest" in any of the firms to be reviewed by
the Board. There is no evidence that Helminski ever had any such
interest.
Andrew Kilk, another construction engineer in the Design and
Construction Division, was named Chairman of the Board. On more than
one occasion in early October 1989 Kilk asked Helminski how he was doing
on the project and when he would finish. Helminski replied, "I'm going
to get to it." Helminski mentioned that he was having a problem because
of derogatory things he knew about one of the firm's previous dealings
with GSA. Kilk ignored the comment.
Helminski acknowledged in a grievance filed with John Day on October
6, 1989, in which he complained about having too many constructability
reviews, that he was "serving on the CQM Selection Committee."
Kilk and Board member Reiretes completed their CQM evaluations by
October 17, 1989. Each member of the Board was responsible for the
evaluation of the six competing firms. It would normally take an
engineer from four to six hours to evaluate each firm. The Chairman,
Kilk, spent 40 hours on his evaluations over a two to three week period.
During the period September 25, 1989 to November 2, 1989 Mr. Helminski
had sufficient working time apart from his reported official time within
which to complete his Board responsibilities.
Mr. Helminski testified that he wanted to be removed from the Board
because of the amount of time he was spending on his own grievances and
in representing an employee before the MSPB. He also had an "emotional
problem" with the assignment because of derogatory things he knew about
one of the firms to be evaluated which he was told could not be
considered in his evaluation. Accordingly, he was "very suspicious" of
Mr. Day's and Mr. Wilby's motives in putting him in that position. He
also believed that the work was "not very important" because of
information he had received from other sources. He testified that the
Board assignment was not part of the critical elements in his
performance evaluation, and, accordingly, he felt he should give "very
special attention" to his critical elements items since he was being
monitored very closely at the time under a performance improvement plan.
Mr. Helminski acknowledged that he was suffering from stress during the
time he was assigned to the Board and found it difficult to concentrate,
organize his work, and work efficiently.
On October 23, 1989 Helminski gave Kilk a note asking if it was at
all possible to be removed from the Board. /2/ He stated, "I've got too
much Union stuff and I didn't realize (the firm I have a problem with)
was in this pile."
On October 25, 1989, Kilk forwarded the note to Day commenting that
Helminski was the only one who had not completed his evaluation and
recommending that an alternate complete the evaluation. Kilk wrote to
Day again on November 1, 1989 Kilk reiterating this information and
stating, "(Helminski) states his union actions prevent him from
(completing the assignment)."
On November 2, 1989 Day sent Helminski a memorandum directing him to
proceed "at once" to complete the evaluation. Helminski was told to
complete the work on a "first priority" basis by November 6, 1989.
Helminski replied to Day by memorandum dated the same day requesting
that he be relieved from the assignment. He stated that as Principal
Representative for AFGE "a great deal of my time must be spent on union
matters." He also cited the "additional representational time which must
be used" in connection with the MSPB appeal. In addition, Helminski
cited the time it took him to respond to Day's "harassing memoranda . .
. seeking(ing) vengeance on me for my revelations regarding management
improprieties. . . ." Helminski stated he also had "a strong emotional
bias" against one of the firms. Helminski gave a copy of his memorandum
to the contracting officer.
Day removed Helminski from the Board later in the day of November 2,
1989. Helminski had completed evaluations of two or three of the firms
before being removed from the Board.
C. Disciplinary Action Taken Against Helminski
On December 26, 1989 Respondent sent Helminski notice of a proposed
two day suspension. The proposal set forth two reasons. One was
Helminski's failure to complete an assigned task, summarized as follows:
You knew of your assignment to the Source Selection Committee for
approximately six (6) weeks before requesting to be removed from
the committee and relieved of the assignment. The task assigned
to you was reassigned and completed by Ashima Roy, an alternate
Board member. Your failure to complete the evaluation or to
timely request reconsideration as a Board member caused a
significant delay in the contract administration process.
The second alleged act of misconduct was Helminski's use of the office
telefax machine to send copies of another proposed suspension to the
Office of the Special Counsel and AFGE headquarters.
Helminski responded to the proposed suspension on December 27, 1989.
Helminski claimed that he did not receive the assignment until he
returned from leave on September 25th and that he had complained to Day
"at that time and on several later occasions that I had severe time
problems and could not handle the additional assignment." He mentioned
the priority he had given to his representational work before the MSPB
and the fact that he had to give a great deal of attention to his normal
work, additional constructability reviews, and to responding to 26
memoranda from Mr. Day. He stated he had attempted to give time to the
Board but "had a great problem" with one of the contractors being
considered.
Helminski also responded to the second allegation of improperly using
the FAX machine. He asserted, in part, that both he and Mr. Day
believed that the use of the machine was authorized; that it was not
until December 12 that a contrary opinion was issued by the personnel
department; and that "(o)bviously there is a difference of opinion on
the use of these machines and we will have to resolve it by means of the
grievance process(. H)owever it is an unfair labor practice to attempt
disciplinary proceedings based on a reasonable difference of opinion."
On March 30, 1990, Richard B. Welsh, Jr., Assistant Regional
Administrator, Public Buildings Service, sent Helminski a letter
announcing his decision to suspend Helminski for two days. Welsh
acknowledged that there may have been some confusion about the Union's
entitlement to the use of the FAX machine and dismissed the charge of
unauthorized use of the machine. Welsh discussed the other reason for
the action as follows:
In the matter of your failing to complete an assigned task, you
were given the assignment to serve on the Source Selection
Evaluation Board on September 14, 1989. By signing the Conflict
of Interest Statement on September 25, 1989 you admitted to no
conflicts that would substantially interfere with your duties as a
member of the Source Selection Evaluation Board. By signing the
statement you also made the commitment that should you later
become aware of any conflicts of interest, you would disqualify
yourself by informing the Chairperson of the (B)oard and abide by
any instructions given you in the matter. If in fact you were
aware of any conflict of interest, you failed to request relief
from the assignment until November 2, 1989, then only after being
asked by your supervisor for your completed evaluation.
Accordingly, I find that the more serious charge of failing to
complete your assignment to the Source Selection Evaluation Board
is sustained. I find further that this infraction by itself
merits the two (2) days suspension proposed. You will be suspended
effective April 10 and 11, 1990.
From January 1987 through December 1989 there were eight Source
Selection Boards used by the Construction Management Branch of GSA
Region 9. During that time period Helminski was the only person to
request to be excused from participation in a Board and the only person
to receive a proposed disciplinary action for failure to complete the
assigned work on a Source Selection Board. The record does not reflect
any instance of an employee who was not engaged in protected activity
not being held responsible for failure to complete an assigned task.
In cases involving allegations that an agency has violated section
7116(a)(2) of the Statute, the General Counsel bears the burden of
proving the allegations of the complaint by a preponderance of the
evidence. Letterkenny Army Depot, 35 FLRA 113 (1990); U.S. Department
of Labor, Washington, D.C., 37 FLRA 25, 37 (1990) (Labor). In the
instant case, the issue is whether the General Counsel has proved by a
preponderance of the evidence that the Respondent's decision to issue
Mr. Helminski a two day suspension for not completing an assignment was
in retaliation for his filing grievances and using official time,
activities which assist a labor organization and are protected by the
Statute. See 5 U.S.C. Sections 7102, 7121(b)(3)(A), 7131(d).
The record reflects that Helminski filed numerous grievances and used
official time during the period in which he was accused of not
completing an assigned task. Management was well aware of his
grievances and that he had requested and been granted certain official
time. Although closeness in time between an agency's employment
decision and protected activity may support an inference of illegal
anti-union motivation, it is not conclusive proof of a violation.
Labor, 37 FLRA at 37.
As additional proof of management's illegal motivation, Counsel for
the General Counsel points to the fact that Helminski was told by a
personnel specialist that he could not use official time to work on the
MSPB appeal. He was only allowed to do so after he complained to the
MSPB Judge. The personnel specialist's advice was too restrictive and
incomplete, but the parties' collective bargaining agreement does only
authorize official time for MSPB representation "as determined by (the
MSPB)." Helminski secured proper MSPB authorization after the personnel
specialist's advice. Thus, this incident is not persuasive concerning
illegal anti-union motivation.
Counsel for the General Counsel also points to the fact that part of
the charge in the original proposed suspension was Helminski's
"unauthorized use of the government FAX machine." Counsel claims that
this shows illegal anti-union motivation as Helminski was seeking the
assistance of AFGE headquarters by using the machine. It is noted that
Helminski's own reply to this charge acknowledged "a reasonable
difference of opinion" concerning whether this was an authorized use of
this machine. In view of all the circumstances, including the fact that
this charge was ultimately dismissed by management based on "confusion
as to the union's entitlements," the initial charge also does not
demonstrate management's illegal anti-union motivation.
The record demonstrates that Helminski should have been able to
devote the amount of official time to Union activity which he requested
and still complete his Board assignment in a timely manner. Helminski
was never denied official time. Yet he acknowledged that he used more
duty time for representational activity on his own grievances than he
requested. The Respondent cannot be faulted for having expected
Helminski to perform his assigned duties at times when he reported
himself to be in a regular duty status, nor can it be held to have acted
in reprisal for claimed protected activity of which it was unaware.
Record facts demonstrate that Helminski was informed of the
importance of the assignment at the outset by his supervisor. When
asked on more than one occasion by the anxious Board Chairman about the
status of the project, he assured him that he would "get to it."
Helminski requested to be excused only after four weeks had passed and
the other two members of the Board had completed there evaluations
within the normal time frame.
In addition to Helminski's having enough duty time to complete the
assignment even with the reported official time for protected activity,
his testimony and correspondence reveal a number of reasons for his
dilatory conduct and failure to complete the assignment. Despite being
informed by his supervisor at the outset of the importance of the
assignment and being asked by the anxious Board Chairman of the status
of the project, Helminski (1) had an "emotional problem" with the
assignment because of his bias against one of the firms to be evaluated;
(2) was "very suspicious" of his supervisors' motives in giving him the
assignment; (3) believed that the work was "not very important," (4)
decided to give "very special attention" to his regular work, and (5)
believed he was suffering from stress at the time and, therefore, found
it difficult to concentrate, organize his work, and work efficiently.
The record demonstrates that (1) Helminski was issued a two day
suspension from duty and work for failure to complete a work assignment;
(2) Helminski failed to complete the work assignment; (3) there was a
legitimate justification for Respondent's actions; and (4) the same
action would have been taken in the absence of protected activity.
It is concluded that a preponderance of the evidence does not
establish that Respondent's action of issuing Mr. Helminski a two day
suspension from duty and pay for failure to complete an assignment was
taken because Helminski engaged in protected activity. Accordingly,
Respondent did not violate section 7116(a)(1) and (2) of the Statute as
alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, February 14, 1991
/s/ GARVIN LEE OLIVER
GARVIN LEE OLIVER
Administrative Law Judge
(1) Helminski testified that he did not have any discussion with Day
on September 14 about the Source Selection Board and first learned of it
when he returned to the office on September 25. I credit Day's
testimony on this point.
(2) Helminski testified that he requested to be removed from the
Board because of his time conflicts at an earlier date. He claims he
discussed it with Day when he received the assignment in September and
in a routing slip to Day on October 10, 1989. Day denies receiving the
October 10 routing slip and claims that Helminski did not complain to
him of any problem completing the assignment prior to late October. I
credit Day's testimony. Helminski admits that he assured Kilk in early
October that he was getting the work done. In a grievance filed with
Day on another matter on October 6, 1989 Helminski stated that he was
"serving on the CQM Selection Committee." He also did not refer to an
earlier request to be removed in his October 23 note to Kilk or November
2 memorandum to Day, to be discussed later.
40 FLRA 968
40 FLRA NO. 82
Dept. of the Air Force, McClellan Air Force Base, California and
International Federation of Professional and Technical Engineers, Local
220 (Angelo, Arbitrator), Case No. 0-AR-2037 (Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
ARBITRABILITY DETERMINATION
FAILURE TO DRAW ESSENCE FROM AGREEMENT
The Arbitrator determined that the grievance over classification
disputes was not arbitrable under the agreement. The Authority rejected
the contention that the award failed to draw its essence from the
agreement, noting that its test for such a contention and the private
sector cases from which they are derived make it clear that an award
will not be found to fail to draw its essence from the agreement merely
because a party believes that the arbitrator misinterpreted the
agreement.
Case No. 0-AR-2037
U.S. DEPARTMENT OF THE AIR FORCE, MCCLELLAN AIR FORCE BASE,
CALIFORNIA
(Agency)
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS
LOCAL 220
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to the award of
Arbitrator Thomas Angelo 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 exception.
The Arbitrator determined that the grievance was not arbitrable under
the parties' collective bargaining agreement. For the following
reasons, we conclude that the Union has not demonstrated that the award
is deficient. Accordingly, the Union's exception will be denied.
The grievant is a WG-10 Instrument Mechanic whose duties include
maintaining and repairing flight instruments and computers. After the
Agency denied the grievant's request for reclassification of his
position at the WG-11 level, the grievant filed a grievance. Relying on
Article XXX of the parties' collective bargaining agreement, the
grievant "claim(ed) entitlement to a temporary promotion to the WG-11
level retroactive to January, 1983(.)" Award at 7. Article XXX states
in pertinent part:
Section 13. When an employee is temporarily assigned to (a)
higher graded position or the grade controlling duties of a higher
graded position (for) thirty (30) days, the employee shall be
temporarily promoted into and receive the rate of pay of that
position commencing on the 31st day. The employee must be
qualified to fill the position on a permanent basis.
Enclosure 1 to Exception at 31.
When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator framed the issue before him as follows:
Whether the Arbitrator has jurisdiction to resolve this matter?
If so, whether the Grievant was assigned higher graded duties in
such a way as to entitle him to rights under the Collective
Agreement, law, rule or regulation. If so, what should the remedy
be.
Id. at 3.
The Arbitrator stated that the initial question was whether the
dispute was "the kind of classification matter that is excluded from the
grievance procedure." Id. at 7. He concluded that, pursuant to Article
XXXIX of the parties' agreement, classification matters which did not
result in a reduction of the grade or pay of an employee were outside
the scope of the grievance procedure. Article XXXIX provides in
pertinent part:
Section 1. The purpose of this Article is to provide a mutually
satisfactory method for the settlement of grievances . . .
involving the interpretation or application of this agreement. A
grievance is defined as any complaint -- a. by any unit employee
concerning any matter relating to the employment of the employee.
c. by any unit employee or by (the Union), or the Employer
concerning --
(1) The effect or interpretation, or a claim of breach, of a
collective bargaining agreement or
(2) Any claimed violation, misinterpretation or misapplication
of any law, rule, or regulation affecting conditions of
employment.
This shall be the only procedure available to the Union,
Employer and employees in the bargaining unit for the filing of
such grievances.
Section 2. The only matters excluded from this procedure by
the (Civil Service Reform Act) and agreement of the Union and the
Employer are those concerning:
e. The classification of any position which does not result in
the reduction in grade or pay of any employee.
Enclosure 1 to Exception at 36-37.
The Arbitrator determined that classification disputes were not
arbitrable unless they "involve a loss of grade or pay, or the claimed
denial of a contractual guarantee of additional grade or pay." Id. at 9.
According to the Arbitrator, unless a violation of the parties'
agreement could be found, "there is neither a right to back pay nor
jurisdictional access for an arbitrator to consider the underlying
classification decision." Id. at 9-10.
The Arbitrator also concluded that Article XXX of the parties'
agreement "requires some proof that an 'assignment' of higher graded
duties took place, and the Agency knew, or should have known, that the
assignment would produce a temporary promotion." Id. at 10 (footnote
omitted). Finding no such evidence in the record, the Arbitrator
determined that there was no contractual violation enabling him to
"reach the merits of the classification decision . . . ." Id. at 11.
Accordingly, the Arbitrator denied the grievance "for lack of subject
matter jurisdiction over a classification matter not involving a loss of
pay or grade." Id. at 12.
The Union argues that the award is deficient because it fails to draw
its essence from the parties' collective bargaining agreement. The Union
asserts that the Arbitrator "misinterpreted the meaning and intent" of
Section 3 of Article IV; Section 13 of Article XXX; and Sections 1a,
1c, and 2e of Article XXXIX of the parties' agreement. /*/ Exceptions at
1. The Union contends that the grievant was performing the duties of a
WG-11 Instrument Mechanic for more than 30 days, because he was
"misassigned" to the position. Id.
To establish that an award is deficient because it does not draw its
essence from a collective bargaining agreement, the party making the
allegation must demonstrate 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 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 Transportation, Maritime Administration, James River
Reserve Fleet and National Association of Government Employees, Local
R4-47, 35 FLRA 1213, 1216 (1990) (DOT, Maritime Administration).
These tests and the private sector cases from which they are derived
make it clear that an award will not be found to fail to draw its
essence from the agreement merely because a party believes that the
arbitrator misinterpreted the agreement. United States Department of
Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573,
575 (1990). The interpretation of a collective bargaining agreement is
left solely to the arbitrator because it is the arbitrator's
construction of the agreement for which the parties have bargained. Id.
at 576.
In this case, the Arbitrator interpreted Article XXX of the parties'
agreement as requiring "some proof that an 'assignment' of higher graded
duties took place, and the Agency knew, or should have known, that the
assignment would produce a temporary promotion." Award at 10 (footnote
omitted). Nothing in the Arbitrator's interpretation of the parties'
agreement is irrational or implausible, or evidences a manifest
disregard for the agreement. We conclude, therefore, that the Union has
failed to establish that the award fails to draw its essence from the
agreement. See DOT, Maritime Administration, 35 FLRA at 1216.
The Union's exception is denied.
(*) Article IV, Section 3, states:
The Employer agrees that all employees in the bargaining unit will
be treated fairly and equitably in the application or
interpretation of agency regulations, regulations of higher
authority and established procedures.
Enclosure 1 to Exception at 4.
40 FLRA 966
40 FLRA NO. 81
NTEU, Chapter 207 and Federal Deposit Insurance Corporation,
Washington, D.C., Case No. 0-NG-446 (28 FLRA 625) (Decided May 24, 1991)
REMAND FROM THE UNITED STATES COURT OF APPEALS
MOTION TO VACATE AS MOOT
The case was before the Authority on remand from the Court of Appeals
for the District of Columbia. The Court had granted the Authority's
motion to vacate its decision and order on remand the earlier Authority
decision and remanded the case to the Authority with instructions to
vacate its order as moot. Pursuant to the order of the court, the
Authority vacated as moot the Authority's earlier decision and order on
remand.
Case No. 0-NG-446 28 FLRA 625 (1987)
NATIONAL TREASURY EMPLOYEES UNION CHAPTER 207
(Union)
FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C.
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This negotiability case is before the Authority on remand from the
United States Court of Appeals for the District of Columbia Circuit.
FLRA v. Federal Deposit Insurance Corporation, Nos. 87-1716 and 88-1005
(D.C. Cir. Feb. 25, 1991) (per curiam). The court granted the
Authority's motion to vacate its decision and order on remand in
National Treasury Employees Union, Chapter 207 and Federal Deposit
Insurance Corporation, Washington, D.C., 28 FLRA 625 (1987) (Chairman
Calhoun dissenting) (FDIC), reconsideration denied, 29 FLRA 1465 (1987)
(Chairman Calhoun dissenting) and remanded the case to the Authority
with instructions to vacate its order as moot. The court also dismissed
as moot a motion for summary enforcement of the Authority's decision and
order on remand, and a motion for summary denial of the Agency's
petition for review.
In accordance with the instructions of the court to vacate our order
we will vacate as moot the decision and order on remand in FDIC.
In FDIC the Authority, on remand, directed the Agency to bargain over
a proposal which, as relevant here, required that employees' salaries be
subject to adjustment equal to the adjustment recommended to the
President by the Pay Advisory Council. /*/ Appeals of that decision
were filed in Case Nos. 87-1716 and 88-1005.
On November 5, 1990, during the pendency of the appeals, the
President signed into law the Federal Employees Pay Comparability Act of
1990 (the Act), Pub. L. No. 101-509, sec. 529 (1990). Among other
things, the Act had the effect of abolishing entities that previously
had been involved in the Federal pay setting process. Following
enactment of the Act, the Authority moved to vacate as moot the decision
and order finding the Union's proposal negotiable and directing the
Agency to bargain. The Authority argued that because the proposal
relied on the recommendations of an entity that no longer existed, the
proposal had been rendered moot. As indicated, the court granted the
motion to vacate and remanded the case to the Authority with
instructions to vacate the order as moot.
Pursuant to the order of the court, we will vacate as moot the
Authority's decision and order on remand in FDIC.
The decision and order on remand in FDIC is vacated as moot.
(*) Previously, the Authority had found that the proposal was outside
the duty to bargain because it conflicted with an agency regulation for
which there was a compelling need. National Treasury Employees Union,
Chapter 207 and Federal Deposit Insurance Corporation, Washington, D.C.,
21 FLRA 282 (1986). That decision was reversed and remanded in National
Treasury Employees Union v. FLRA, 813 F.2d 472 (D. C. Cir. 1987).
40 FLRA 958
40 FLRA NO. 80
AFGE, Local 1592 and Dept. of Air Force, Ogden Air Logistics Center,
Hill Air Force Base, Utah (Brand, Arbitrator), Case No. 0-AR-1976
(Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
COLD WEATHER PROTECTIVE CLOTHING
FAILURE TO DRAW ESSENCE FROM AGREEMENT
HARMFUL-ERROR RULE
MERIT SYSTEM PROTECTION BOARD
5 U.S.C. 7701(c)
The Arbitrator denied a grievance over the Agency's failure to
provide cold weather protective clothing to four employees when they
were required to work outside. The Authority construed the Union's
exception that the award violates the agreement as a contention that the
award fails to draw its essence from the agreement because the
Arbitrator concluded that a section of the agreement and the applicable
governing authorities referenced in that section do not require the
Agency to provide protective clothing in the circumstances of the case.
The Authority found that the Union had failed to demonstrate that the
Arbitrator's interpretation of the agreement rendered the award
deficient under any of the Authority's tests.
The Authority also rejected the contention that the Arbitrator was
bound to apply the harmful-error rule as it would have been applied by
the Merit System Protection Board pursuant to 5 U.S.C. 7701(c), noting
its repeated holding that arbitrators are not bound by the same
substantive standards as the MSPB when resolving grievances over actions
not covered by 5 U.S.C. 4303 and 7512.
Case No. 0-AR-1976
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1592
(Union)
U.S. DEPARTMENT OF THE AIR FORCE OGDEN AIR LOGISTICS CENTER HILL AIR
FORCE BASE, UTAH
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to an award of
Arbitrator Norman Brand 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 Arbitrator denied a grievance over the Agency's failure to
provide cold weather protective clothing to four employees when they
were required to work outside. For the following reasons, we find that
the Union has failed to establish that the award is deficient. We will,
therefore, deny the exceptions.
The Agency's facility is located in an area of the country that
experiences extremely cold weather during the winter. Certain employees
who work on the flightline are permitted to request from the Agency
safety boots that are specifically designed for cold weather. Employees
who work in the facility's air freight terminal receive certain foul
weather gear in accordance with an arbitration award issued in 1975. In
addition, fuelers who work on the flightline are provided with special
clothing. Generally, maintenance employees work inside hangars
repairing and maintaining engines. However, certain large aircraft
cannot fit into hangars and, on occasion, there is a lack of hangar
space for even the smaller aircraft. When these situations have arisen,
employees have been required to do some work outside.
Four employees who maintain jet engines were required to work outside
and requested cold weather protective clothing from the Agency. Their
request was denied. The Agency agreed that, in order for the employees
to be able to work safely, the existing weather conditions required
protective clothing such as parkas and thermal underwear. However, the
Agency did not believe that it was authorized to issue cold weather
clothing in light of the provisions of AFM 67-1, Vol. II, relating to
the issuance of such equipment to employees. /1/ Accordingly, the
Agency sought guidance from the Air Force Logistics Command Headquarters
at Wright-Patterson Air Force Base as to whether it could provide cold
weather protective clothing to the grievants.
The Agency was advised that, in the Headquarter's view, the clothing
requested was not required to protect employees from exposure to
physical hazards, but rather was necessitated by the climatic conditions
in Ogden, Utah. Therefore, the Headquarters concluded that, as the
pertinent provisions of AFM 67-1 mandated that civilians provide for
themselves clothing appropriate to the climatic area in which they live,
the Agency was not authorized to issue cold weather clothing to the
grievants.
A grievance was filed over the Agency's refusal to provide the
protective clothing. The grievance was not resolved and was submitted
to arbitration on the following stipulated issue:
Did Ogden AFLC violate Section 25.05 of the MLA by failing to
provide cold weather protective clothing to the four individuals
who filed grievance 89-02-06, when they were required to work
outside? If so, what is the remedy?
Award at 2.
Before the Arbitrator, the Union argued that, as the Agency issues
foul weather gear to other civilian employees working outside, the
refusal to provide the clothing to the grievants constituted "disparate
treatment." Id. at 7. The Union further contended that the Agency's
obligation to provide the requested clothing was established in Section
25.05 of the parties' collective bargaining agreement. /2/ According to
the Union, when the employees' workload changed to include outdoor
winter work, the Agency was obliged, in accordance with that section of
the agreement, to seek a change in Air Force regulations so that it
could issue protective clothing to the grievants.
The Arbitrator concluded that the Agency did not violate the
collective bargaining agreement. The Arbitrator found that "Section
25.05 is clear and unambiguous. It provides that the issuance of
protective equipment will be strictly governed by the criteria contained
in applicable Air Force Regulations and Directives." Id. at 8. The
Arbitrator found that "(o)n its face, the relevant Air Force policy
requires civilians to provide clothing appropriate to the climatic
conditions in which they work." Id. The Arbitrator noted that the Union
had cited no rule, directive, or other authority requiring or permitting
the Agency to provide civilian employees with clothing to protect them
from the winter cold in Ogden, Utah. Although noting that the Agency
does provide some equipment to certain employees pursuant to an earlier
arbitration award and to other employees in accordance with an
agreement, the Arbitrator concluded that neither of such actions "can
substitute for the specific regulation or directive required" by the
collective bargaining agreement. Id. at 9.
In conclusion, the Arbitrator held that while "the Union may consider
it disparate treatment that only certain employees working on the
flightline receive 'foul weather' equipment, 'equal treatment' is not
the standard . . . to which the Union and Agency have agreed. Rather,
in accordance with Section 25.05, they have agreed that issuance of
protective equipment will be 'strictly governed by criteria' which are
contained in appropriate Air Force policies, regulations, and
directives." Id. As the Arbitrator found that those criteria "neither
require nor permit the issuance of 'foul weather gear'" to the
grievants, the Arbitrator denied the grievance. Id.
The Union contends that the Arbitrator's award is deficient because
it "violates law; specifically, 5 U.S.C. 7701(c)(2)(A), harmful error,
and the collective bargaining agreement." Exceptions at 1.
Specifically, the Union argues that the Arbitrator "erred when he failed
to consider that exposure to wind chill, extreme cold temperatures, and
frostbite" constitutes a "physical hazard" which would allow for the
issuance of protective clothing under Air Force regulations. Id. at 2.
The Union disputes the Arbitrator's conclusion that the Union cited
no rule, directive, or other authority which would support the Union's
contentions. Rather, the Union asserts that the "record is replete with
applicable contractual, regulatory, and binding arbitrator authority"
authorizing the issuance of protective clothing. Id. The Union
maintains that the applicable provisions of AFM 67-1, Vol. II allow for
such issuance. Finally, the Union asserts that the record establishes
that some Agency employees do receive cold weather gear and that, as
"(e)qual treatment is the mainframe (sic) of American society(,) . . .
(t)o deny certain individuals the same treatment . . . that others
enjoy, flies in the face of equal treatment and equal opportunity in the
work place." Id. at 2-3.
The Agency argues that applicable Air Force policy requires civilian
employees to provide their own clothing appropriate for seasonal
climatic conditions and that the Agency's provision of protective
clothing is contingent upon a determination that the climate conditions
being experienced are not normal for the geographic area in which
employees are required to work. Accordingly, the Agency asserts that,
as the Union provided no regulatory or other authority for the issuance
of foul weather gear to the grievants, the Arbitrator's award is
consistent with the collective bargaining agreement and applicable
regulations and is, therefore, not deficient.
We conclude that the Union's exceptions provide no basis for finding
that the Arbitrator's award is deficient. We construe the Union's
exception that the award violates the collective bargaining agreement as
a contention that the award fails to draw its essence from the agreement
because the Arbitrator concluded that Section 25.05, and the applicable
governing authorities referenced in that section, do not require the
Agency to provide protective clothing in the circumstances of this case.
For an award to be found deficient because it fails to draw its essence
from a collective bargaining agreement, it must be demonstrated 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. See, for example, U.S. Department of the Air Force,
Ogden Air Logistics Center, Hill Air Force Base, Utah and American
Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71
(1990).
The Union has not demonstrated that the Arbitrator's interpretation
of the parties' agreement renders the award deficient under any of the
tests set forth above. Furthermore, the Union has not demonstrated that
the Arbitrator's interpretation of the pertinent provisions of AFM 67-1,
Vol. II is incorrect. Both the Agency's Command Headquarters and the
Arbitrator determined that AFM 67-1 precluded the Agency's issuance of
cold weather clothing to the grievants, and the Union fails to establish
otherwise. We find that in disputing the Arbitrator's conclusion, the
Union is merely disagreeing with the Arbitrator's interpretation of the
parties' agreement and applicable Agency policy and is attempting to
relitigate the issue presented before the Arbitrator. Accordingly, the
exception provides no basis for finding the award deficient under
section 7122(a) of the Statute. See, for example, U.S. Department of
Health and Human Services, Social Security Administration, Southeastern
Program Service Center and American Federation of Government Employees,
Local 2206, 38 FLRA 1170, 1177-78 (1990).
To the extent that the Union is contending that the Arbitrator was
bound to apply the harmful-error rule as it would have been applied by
the Merit Systems Protection Board (MSPB) pursuant to 5 U.S.C. Section
7701(c), that contention is also without merit. We have repeatedly held
that arbitrators are not bound by the same substantive standards as the
MSPB when resolving grievances over actions not covered by 5 U. S.C.
Sections 4303 and 7512. For example, 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, 932 (1990); Department of the Air
Force, Griffiss Air Force Base and American Federation of Government
Employees, Local 2612, 34 FLRA 712, 714-15 (1990). As this case
involves the provision of protective clothing, it is not covered by 5
U.S.C. Sections 4303 or 7512, and, therefore, no basis is provided for
finding the award to be contrary to 5 U.S.C. Section 7701(c), as alleged
by the Union.
Finally, we note that although the Union claims that the grievants
have not received "equal treatment" or "equal opportunity," there is no
indication in the record or the Union's exceptions that the Agency
unlawfully treated the grievants in a disparate manner or denied them
equal opportunity based upon unlawful considerations.
Accordingly, we will deny the Union's exceptions.
The Union's exceptions are denied.
(1) The relevant portions of AFM 67-1, Vol. II are set forth in
Appendix A to this decision.
(2) Section 25.05 and Section 25.09, also found relevant by the
Arbitrator, are set forth in Appendix B to this decision.
C. It is the Department of the Air Force policy that civilians
accepting employment provide the normal work and seasonal clothing
required for climatic conditions in the geographical area where they
work. This policy also applies to the position for which they are
employed. Seasonal clothing which civilians who live in cold weather
buy for themselves include items such as parkas, cold weather footwear,
thermal underwear, and other seasonal articles whether or not they are
listed in appropriate Tables of Allowances (TAs). These items are
considered normal clothing requirements for persons residing in the area
regardless of employment assignment. The Air Force may provide special
purpose clothing shown in TA016 (clothing not normally considered a part
of the regular attire for a specific geographical area) to civilian
employees under the following conditions:
(1) Contract agreement. When specified in the employment/contract
agreement between a particular individual and the Air Force, the Air
Force may provide clothing.
(2) Abnormal exposure to biological, chemical, or physical hazards.
When special protective clothing or equipment is required for
occupational protection against biological, chemical, or physical
hazards, the requirement should be specified in safety and health
guidance of the AFOSH Standards; Technical Orders; or Air Force,
Command, or local regulations. If a requirement is not specific, it is
nonexistent for specific operations, the local Safety or
Bioenvironmental Engineering Office (whichever is appropriate) will
determine and validate the need for protective clothing and equipment.
Section 25.05: PROTECTIVE CLOTHING, EQUIPMENT TOOLS.
The Employer agrees to provide to employees any required tools and
safety protective equipment, reasonably fitted safety clothing, and
devices necessary to provide protection of employees from hazardous
conditions encountered during the performance of official duties. Such
equipment will be provided as authorized by applicable Air Force
regulations and directives (such as Technical Orders, Table of
Allowances, and local supplements thereto, etc.), and issuances shall be
strictly governed by criteria contained in those authorities. The Union
agrees to assist the Employer in aggressively publicizing the benefits
of the use of protective devices and equipment by employees, and their
adhering to good safety practices, policies and procedures.
Section 25.09: TEMPERATURE CONDITIONS.
The parties recognize that temperature conditions in and around work
areas can have direct bearing on employees' comfort, morale, health, and
safety. In determining the stress that temperature extremes may place
upon an individual employee, the personal comfort and health of the
employee will be taken into consideration as well as related factors
such as wind, chill factor, airflow, the work to be performed, and
similar considerations. Where the Employer's Bioenvironmental's Office
determines that the effective temperature in a particular work area or
site exceeds recognized standards for the degree of work being
performed, the Employer will take precautionary measures to reduce the
risk to employees so exposed. Such measures will include reduction of
work being performed, increased frequency or duration of rest periods,
etc. This Section shall apply to both heat and cold exposure
situations. Protective clothing for such situations will be provided
where authorized in accordance with Section 25.05.
40 FLRA 953
40 FLRA NO. 79
Dept. of the Air Force, Randolph Air Force Base, Texas and AFGE,
Local 1840 (Stephens, Arbitrator), Case No. 0-AR-2069 (Decided May 24,
1991)
7122(a)
ARBITRATION EXCEPTION
SUSPENSION
AGENCY REGULATIONS
MERIT SYSTEM PROTECTION BOARD
HARMFUL-ERROR RULE
5 U.S.C. 4303 and 7512
The Arbitrator denied a grievance over the 14-day suspension of an
employee. The Authority denied the exceptions. The Authority found
that the Union had not demonstrated that the award is contrary to Air
Force Regulations, not showing that the Arbitrator incorrectly concluded
that the grievant's supervisor did not commit a harmful error, as
defined in the regulation, when he decided to suspend the employee.
Moreover, to the extent that the Union appeared to contend that the
Arbitrator was bound to apply the harmful-error rule as it would have
been applied by MSPB, that contention was found to be without merit.
The Authority noted its precedent that arbitrators are not bound by the
same substantive standards as the MSPB when resolving grievances over
actions not covered by 5 U.S.C. 4303 and 7512.
Case No. 0-AR-2069
U.S. DEPARTMENT OF THE AIR FORCE, RANDOLPH AIR FORCE BASE, TEXAS
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL NO. 1840
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an exception to an award of
Arbitrator Elvis C. Stephens 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 exception.
The Arbitrator denied a grievance over the 14-day suspension of an
employee. For the following reasons, we conclude that the Union has not
established that the Arbitrator's award is deficient. Accordingly, we
will deny the exception.
The grievant is a sheet metal mechanic at the Agency's facility. On
April 23, 1990, the grievant received a Notice of Proposed Suspension
(notice) from his supervisor. The notice proposed to suspend the
grievant for 14 calendar days for unauthorized use of government
equipment and supplies. The specific instance of alleged misconduct
cited in the notice was that on the morning of March 23, 1990, the
grievant and another employee were observed "in the Hanger 63 parking
lot repairing (the grievant's) privately owned boat trailer by using a
government welding truck and its attached welding and/or torch
equipment." Award at 2 (quoting notice). The grievant was given an
opportunity to and did respond to the notice. Thereafter, the
grievant's supervisor notified the grievant of the decision to suspend
the grievant for 14 days.
The grievant filed a grievance over the suspension. The grievance
was not resolved and was submitted to arbitration. The Arbitrator
framed the issue as follows: "Was the 14 calendar day suspension of the
grievant for just cause? If not, what is the proper remedy?" Id. at 1.
Before the Arbitrator, the Union contended that the Agency witnesses
who testified did not actually see the grievant using government
equipment. Accordingly, the Union asserted that the Agency did not meet
its "burden of proving (the) charge by a preponderance of evidence(.)"
Id. at 4. Moreover, the Union maintained that the individual who first
reported the grievant's alleged misconduct to management had an "adverse
relationship" with the grievant. Id. The Union further argued to the
Arbitrator that the grievant's supervisor had committed "a harmful
error" because the supervisor had operated on the "mistaken assumption"
that two specific witnesses had observed the grievant using government
equipment and the supervisor would not have taken action against the
grievant had the supervisor known the witnesses had not actually
observed the grievant using government supplies and equipment. Id.
Finally, the Union argued that the Agency, in determining to suspend the
grievant, had failed to properly consider mitigating factors such as the
grievant's prior work record and the Agency's failure to discipline
other employees who had used government equipment and supplies.
The Arbitrator noted that the action was taken against the grievant
under the provisions of AFR 40-750, Civilian Personnel Discipline and
Adverse Actions which provides a table of offenses and the range of
penalties appropriate for any given offense. The Arbitrator found that
under Part 21b of AFR 40-750, the penalties for unauthorized use of
government property ranged from a reprimand to a removal for the first
offense and that the regulation provided for a greater penalty when
"willfulness or intent" was involved. Id.
The Arbitrator considered the Union's allegation of "harmful error"
on the part of the grievant's supervisor. The Arbitrator noted that the
term "harmful error" is defined in AFR 40-750, Section A.2.k. as an
"error by management in the application of its procedures which, if
corrected or alleviated, might have resulted in a different conclusion."
Id. at 5 (quoting AFR 40-750). The Arbitrator acknowledged that during
cross-examination, in response to the question as to whether the
supervisor would have suspended the grievant if the supervisor "had no
witness statements or no witness told (the supervisor) they (sic) had
seen (the grievant) working using government equipment(,)" the
supervisor agreed that he would not have suspended the grievant under
those circumstances. Id. However, the Arbitrator concluded that even
if the supervisor had not been under the impression that witnesses had
seen the torch being used, it was doubtful that the supervisor would
have come to a different conclusion because the "circumstantial
evidence" in photographs and in testimony was "very strong." Id.
The Arbitrator emphasized that the supervisor did not rely solely on
the two disputed witness statements. Rather, the supervisor conducted
an investigation into the matter and talked to several employees who did
not give statements, but had observed the torch being used. In
addition, the supervisor testified that the grievant never denied the
charges when questioned by the supervisor. Moreover, the Arbitrator
found that photographs that had been taken "plainly show that a torch
was used under the boat trailer" and "that the axle on the boat had been
heated." Id. The Arbitrator noted that the co-worker who assisted the
grievant with the boat trailer repair admitted that he lit the torch.
However, with respect to the co-worker's claim that he lit the torch in
order to "check it out after replacing some 'O' rings in it(,)" the
Arbitrator concluded that it "stretches common sense too much to believe
that someone would crawl under a boat trailer just to test out a repair
on a torch." Id.
With respect to the Union's other assertions the Arbitrator found
that "no probative evidence was introduced to prove" that other
employees who had used government equipment and supplies had not been
disciplined; that the supervisor had appropriately considered all
relevant factors when determining the appropriate penalty for the
grievant's misconduct; and that the "evidence produced at the
arbitration hearing (met the) standard for convincing the (A)rbitrator
that the (A)gency had just cause for suspending the grievant." Id. at 6.
Accordingly, the Arbitrator denied the grievance.
The Union contends that the Arbitrator's award is deficient because
it is contrary to AFR 40-750. Specifically, the Union argues that the
grievant's supervisor committed a "harmful error" as defined in the
regulation. The Union asserts that the Arbitrator erred when he
concluded that there had been no "harmful error" because the supervisor
would have reached the same conclusion had he not believed that
witnesses had observed the grievant using government property.
The Union does not dispute that the grievant was working on his boat
trailer during his break. However, the Union argues that "the
disciplinary action was taken on erroneous information" that the
grievant was using government equipment. Exception at 3. The Union
asserts that the supervisor conceded that he would not have suspended
the grievant had there been no witnesses who observed the grievant using
government equipment. The Union argues that as the evidence adduced at
the hearing demonstrates that witnesses did not actually observe the
grievant using the Agency's torch, the supervisor committed a harmful
error under AFR 40-750 because, as he testified, he would have reached a
different conclusion if not for his mistaken belief that witnesses had
observed the grievant's alleged misconduct. The Union maintains that
the Arbitrator "substitut(ed) his opinion" for that of the supervisor
when the Arbitrator found that it was doubtful that the supervisor would
have come to a different conclusion based upon the other evidence of the
grievant's use of government equipment. Id. at 2.
In conclusion, the Union states that "(h)ad the correct information
been presented to (the supervisor), he would not have suspended the
grievant. Clearly, the (U)nion presented ample evidence to meet the
harmful error standard established by Statute that is well beyond the
requirements for minor disciplinary action . . . . As the FLRA has
established, in cases of minor discipline, the (U)nion need not show
that a procedural error was harmful in order to justify the mitigation
or recission (sic) of the disciplinary action." Id. at 3.
The Union has not demonstrated that the award is contrary to AFR
40-750. Specifically, the Union has not shown that the Arbitrator
incorrectly concluded that the grievant's supervisor did not commit a
harmful error, as defined in that regulation, when he decided to suspend
the grievant. Instead, we conclude that the Union's argument is an
attempt to relitigate the merits of the grievance before the Authority
and constitutes mere disagreement with the Arbitrator's decision that
the Agency had just cause when it suspended the grievant. Disagreement
with an arbitrator's evaluation of evidence and the arbitrator's
findings and conclusions based on that evaluation provides no basis for
finding an award deficient. U.S. Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland and
American Federation of Government Employees, Local 1336, 37 FLRA 766,
774 (1990).
Moreover, to the extent that the Union appears to contend that the
Arbitrator was bound to apply the harmful-error rule as it would have
been applied by the Merit Systems Protection Board (MSPB), that
contention is also without merit. We have repeatedly held that
arbitrators are not bound by the same substantive standards as the MSPB
when resolving grievances over actions not covered by 5 U.S.C. Sections
4303 and 7512. For example, 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, 932 (1990); Department of the Air Force, Griffiss Air Force Base
and American Federation of Government Employees, Local 2612, 34 FLRA
712, 714-15 (1990). As this case involves a 14-day suspension, it is a
lesser disciplinary action not covered by 5 U.S.C. Section 7512.
Accordingly, the Union's exception provides no basis for finding the
award deficient. We will, therefore, deny the Union's exception.
The Union's exception is denied.
40 FLRA 947
40 FLRA NO. 78
AFGE and Dept. of the Air Force, Air Force Logistics Command
(Catherwood, Arbitrator), Case No. 0-AR-2061 (Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
SICK LEAVE COUNSELING
CONTRARY TO AND NOT WITHIN THE SPIRIT, INTENT AND GENERAL CHARACTER
OF THE LAW
The Arbitrator denied a grievance over a counseling letter received
by the grievant regarding the use of sick leave. The Authority denied
the grievance, rejecting the assertion that the award was contrary to
and not within the spirit, intent and general character of the law,
noting in this regard that the Union cites no law with which the award
allegedly conflicts. Also rejected was the assertion that the
Arbitrator exceeded his authority and that the award is unreasonable.
Case No. 0-AR-2061
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Union)
U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to an award of
Arbitrator Hugh R. Catherwood 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 exception.
The Arbitrator denied a grievance over a counseling letter received
by the grievant regarding his use of sick leave. For the following
reasons, we find that the Union has failed to establish that the award
is deficient. We will, therefore, deny the exception.
On October 23, 1990, the grievant received a letter entitled "Sick
Leave Counseling" from his supervisor. The letter stated that a review
of the grievant's sick leave usage for the period January 1, 1990, to
that date showed that he had earned 84 hours of sick leave and had used
160 hours. Summarizing the grievant's sick leave usage, the letter
noted that the grievant's record showed 27 absences on sick leave, 7 of
which were supported by written statements from physicians.
A grievance was filed over the counseling. The grievance was not
resolved and was submitted to arbitration.
As a preliminary matter, the Arbitrator determined that the grievance
was procedurally arbitrable. The parties agreed that the following
issue was before the Arbitrator: "Was the counselling of the
(g)rievant, . . . for just cause and in accordance with the Master Labor
Agreement and other applicable laws, rules, and regulations?" Award at
1.
On the merits, the Arbitrator concluded that he could "find no reason
to fault (the grievant's supervisor) . . . for imposing a
non-disciplinary penalty." Id. at 2. The Arbitrator noted the testimony
of the grievant's supervisor that, while all the grievant's absences had
been authorized, the supervisor believed that the grievant had not
actually been ill on some occasions. In this regard, the supervisor
testified that the "so-called doctor certificates . . . had in fact been
merely forms signed by a nurse and gave no indication of the nature or
degree of the claimed illness." Id. The Arbitrator also noted the
supervisor's testimony that the grievant's absences had caused her to
assign his work to another employee when that person was needed at his
regular post, that the grievant had often taken sick leave on Mondays
and Fridays, and that when the grievant's sick leave was exhausted, he
had frequently taken annual leave or leave without pay.
The Arbitrator concluded that the grievant's absences fit the
criterion of Section 24.03(a)(5) of the parties' collective bargaining
agreement regarding identification and correction of sick leave abuse.
/*/ That subsection provides that one indication of sick leave abuse is
"(i)ntermittent sick leave use of short duration with vague excuses."
The Arbitrator acknowledged that the "fact that the (g)rievant took
leave without pay on some occasions certainly indicates that at those
times he was genuinely ill," but, the Arbitrator noted, "from the point
of view of management, an employee who is so often absent, requiring a
substitute to be taken off work where he is badly needed, is simply an
unfair burden." Award at 2. Accordingly, the Arbitrator denied the
grievance.
The Union contends that the Arbitrator's award is contrary to law,
that the Arbitrator exceeded his authority and that "the tolerable
bounds of reasonableness were breached by the Arbitrator in the
rendering of the award." Exception at 1.
The Union states that the counseling letter refers to the grievant's
alleged use of sick leave during periods of heavy workload and in
connection with weekends and holidays. The Union argues that these
allegations meet the "requirements" set forth in section 24.03(a)(3) and
(4) of the collective bargaining agreement and not the criterion set
forth in seciton 24.03(a)(5) relied upon by the Arbitrator.
Accordingly, the Union argues that the Arbitrator exceeded his authority
under law and the parties' collective bargaining agreement by
determining that the Agency had just cause to counsel the grievant
because his sick leave use met the criterion set forth in Section
24.03(a)(5). The Union notes that Section 7.06(a) of the parties'
collective bargaining agreement provides that an "arbitrator's authority
is limited to deciding only the issue or issues considered in the formal
grievance." The Union argues that the only issue properly before the
Arbitrator was whether the grievant's conduct constituted leave abuse
under section 24.03(a)(3) and (4) because those were the only
indications of sick leave abuse specifically described in the counseling
letter.
We conclude that the Union has not established that the Arbitrator's
award is deficient. The Union asserts that the award is "contrary to
and not within the spirit, intent and general character of the law."
Exception at 1. However, the Union cites no law with which the award
allegedly conflicts and none is apparent to us. Accordingly, we reject
the Union's assertion. See, for example, U.S. Department of
Transportation, Federal Aviation Administration, Springfield, Illinois
and National Air Traffic Controllers Association, 39 FLRA 1036, 1041
(1991).
The Union also asserts that the Arbitrator exceeded his authority.
An arbitrator exceeds his or her authority when he or she issues an
affirmative order that goes beyond the scope of the matter submitted to
arbitration. See, for example, General Services Administration, Region
VII, Fort Worth, Texas and American Federation of Government Employees,
Council 236, 35 FLRA 1259, 1265-66 (1990).
In this case, the parties stipulated that the Arbitrator was to
decide whether the counseling of the grievant was for just cause in
accordance with the parties' collective bargaining agreement; no
specific section of the agreement was cited. The underlying formal
grievance in this matter generally alleged that the counseling letter
violated the parties' collective bargaining agreement. We conclude that
the award is directly responsive to the issue as the parties framed it.
In this regard, the Arbitrator considered the background and entire
content of the counseling letter, including the letter's references to
the grievant's absences during periods of heavy workload and in
connection with weekends. The counseling letter did not reference any
specific subsections of the collective bargaining agreement, but rather
noted the grievant's pattern of absences, including their duration and
frequent lack of a doctor's certificate justifying the absence.
Consequently, we find that the Union has not demonstrated that the
Arbitrator's award relates to matters which were not submitted to
arbitration or part of the formal grievance. Accordingly, the Union's
assertion that the Arbitrator exceeded his authority provides no basis
for finding the award deficient.
The Union's assertion that the award is unreasonable constitutes
nothing more than disagreement with the findings and conclusions of the
Arbitrator and provides no basis for finding the award deficient. See
Panama Canal Commission and Panama Area Metals Trades Council, 34 FLRA
237 (1990).
We will, therefore, deny the Union's exception.
The Union's exception is denied.
(*) Section 24.03 is set forth in its entirety in the Appendix to
this decision.
SECTION 24.03: IDENTIFICATION AND CORRECTION OF SICK LEAVE ABUSE
An employee will not be required to furnish a doctor's certificate to
substantiate a request for three days or less sick leave, unless there
is a documented reason to believe the employee is abusing sick leave as
set forth below.
a. There are certain sick leave trends which, when appearing on a
continual basis, could indicate sick leave abuse.
(1) Absence after paydays.
(2) Sick leave before or after holidays.
(3) Monday-Friday sick leave.
(4) Absences during heavy workloads or undesirable duties.
(5) Intermittent sick leave use of short duration with vague
excuses.
b. When a supervisor suspects that an employee is abusing sick
leave, he/she should look further into the individual's past leave
records, using available sick leave data to provide more information.
The supervisor will also explore the causes of the employee's chronic
absenteeism and assist in resolving the conflict, provide additional
personal reminders of the importance of careful use of sick leave, etc.
c. Once a supervisor has identified sick leave abuse, the supervisor
will counsel the employee with respect to the use of sick leave, and a
record of the counseling will be recorded on the 971 file. Bargaining
unit employees will not be required to provide doctor's certificates for
sick leave requests solely on the basis of a mechanized leave usage
report that indicates the employee's use of sick leave is abnormal.
d. If the sick leave record subsequent to the counseling does not
show elimination of sick leave abuse, the employee will be given written
notification requiring the employee to provide doctor's certificates for
all absences for which sick leave is requested. This notice should
contain justification as to why the employee was given the additional
requirement, such as stating the number of hours of sick leave used in a
specific period, his sick leave pattern and balance, etc. The
requirement to furnish doctor's certificates, once imposed, will be
reviewed at least every six months to determine if it should be
continued. At the time of the review, the employee will be counseled
and advised in writing if the requirement is to be continued or
cancelled. The supervisor should take care to be firm, fair, and
consistent not only in resolving sick leave abuse but in all aspects of
sick leave administration.
40 FLRA 945
40 FLRA NO. 77
Dept. of the Army, Army Transportation Center, Fort Eustis, Virginia
and NAGE, Local R4-6, Case No. 0-AR-2056 (40 FLRA No. 28) (Decided May
24, 1991)
REQUEST FOR RECONSIDERATION
ATTORNEY FEES
EXTRAORDINARY CIRCUMSTANCES
The Authority denied the Union's request for reconsideration of its
decision wherein it denied the Union's exception to the Arbitrator's
supplemental award denying the Union's request for a new award of
attorney fees. The Authority found that the Union had failed to provide
extraordinary circumstances, their arguments constituting nothing more
than disagreement with and an attempt to relitigate the merits of the
earlier decision.
Case No. 0-AR-2056 (40 FLRA No. 28 (1991))
U.S. DEPARTMENT OF THE ARMY, ARMY TRANSPORTATION CENTER, FORT EUSTIS,
VIRGINIA
(Agency)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-6
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on the Union's motion for
reconsideration of the Authority's decision in 40 FLRA No. 28 (1991).
The Agency did not file an opposition to the request. Because the Union
fails to establish that extraordinary circumstances exist which would
warrant reconsideration of our decision, we will deny the motion.
In 40 FLRA No. 28, we denied the Union's exception to the
Arbitrator's supplemental award denying the Union's request for a new
award of attorney fees. In her original award, the Arbitrator had
awarded attorney fees. However, we concluded in U.S. Department of the
Army, Army Transportation Center, Fort Eustis, Virginia and National
Association of Government Employees, Local R4-6, 38 FLRA 186 (1990),
request for clarification denied, 40 FLRA No. 10 (1991), that the award
of attorney fees was contrary to the Back Pay Act, and we modified the
award to strike the provision for attorney fees.
The Union contends that there are extraordinary circumstances
warranting reconsideration. The Union maintains that the Union
prevailed in the arbitration and reserved its right to attorney fees.
The Union asserts that it is the "clear intent of the Back Pay Act . .
. to permit employees suffering from unjustified actions to receive
backpay and attorney fees" and that the "FLRA's decision denying a fee
award frustrates (that) clear intent(.)" Motion for Reconsideration at
1.
The Union also argues that the Authority "is placing an unfair burden
on the Union to be responsible for educating and providing legal advice
to arbitrators" and that nonetheless the Union intended "to do just what
the Authority is advocating, but the (A)rbitrator proceeded to issue her
decision prior to the Union's request for attorney fees." Id. at 2.
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 Union has not established extraordinary circumstances within
the meaning of section 2429.17 to warrant reconsideration of our
decision in 40 FLRA No. 28.
The Union's arguments constitute nothing more than disagreement with
and an attempt to relitigate the merits of our decision in 40 FLRA No.
28 and do not establish the extraordinary circumstances necessary for
reconsideration. See U.S. Department of Health and Human Services,
Social Security Administration, Wichita, Kansas and American Federation
of Government Employees, Local 1336, 36 FLRA 614, 616-17 (1990). The
Union's arguments were fully addressed in our decision in 40 FLRA No.
28. Accordingly, we will deny the Union's motion.
The Union's motion for reconsideration is denied.
40 FLRA 937
40 FLRA NO. 76
Dept. of Labor, Mine Safety and Health Administration, Southeastern
District and AFGE, Local 2519 (Eyraud, Arbitrator), Case No. 0-AR-2023
(Decided May 24, 1991)
7122(a)
ARBITRATION EXCEPTION
FILLING VACANCY
REMOVE SELECTEE
RERUN SELECTION
RIGHT TO ASSIGN EMPLOYEES AND WORK
BARGAINING UNIT STATUS
AMBIGUOUS AWARD
FPM CHAPTER 335, APPENDIX A, SECTION A-4b
The Arbitrator sustained a grievance alleging that the Agency
violated the agreement in filling a vacancy and ordered the Agency to
remove the selectee from the position and rerun the selection action.
Noting that the Arbitrator did not determine that the selectee was not
qualified for the disputed position and the award does not in anyway
restrict the Agency's right to establish qualifications or determine
whether employees possess required qualifications, the Authority
rejected the exception that the award violates the right to assign
employees and work.
The Authority noted that section 7105(a)(2)(A) gives it exclusive
jurisdiction to resolve factual disputes concerning bargaining unit
status, but in this case the Arbitrator did not resolve such a dispute
because the parties agreed that the position at issue was in the unit.
Accordingly, the Authority rejected the exception that the Arbitrator
had resolved a unit issue.
As to the remedy, the Authority agreed with the Agency that the
portion of the award requiring the removal of the selectee was
deficient, noting that where an arbitrator determines that an agency
violated proper procedures in filling a vacant position, the incumbent
is entitled under the FPM to be retained in the position pending
corrective action unless it is specifically determined that the
incumbent originally could not have been properly selected. There was
no such finding by the Arbitrator. Accordingly, the Authority modified
the order to delete the requirement that the selectee be removed.
Finally, the Authority rejected the contention that the award was
ambiguous, noting that it will make such a finding when the award is
incomplete, ambiguous, or contradictory so as to make implementation
impossible. The exceptions provide no basis for such an allegation.
Case No. 0-AR-2023
U.S. DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION,
SOUTHEASTERN DISTRICT
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2519
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator George V. Eyraud, 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 filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency
violated the collective bargaining agreement in filling a vacancy. The
Arbitrator ordered the Agency to remove the selectee from the position
and rerun the selection action.
For the following reasons, we conclude that the portion of the award
requiring the Agency to remove the selectee from the position is
deficient. We will, however, deny the remainder of the Agency's
exceptions.
The Agency posted a vacancy announcement for the position of Mine
Safety and Health Specialist, GS-13. The announcement stated that the
position was not in the bargaining unit. The announcement also stated:
Legal Requirements: The Federal Mine Safety and Health Amendments
Act of 1977 states: "That, to the maximum extent feasible, in the
selection of persons for appointment as mine inspectors, no person
shall be selected unless he has the basic qualification of at
least five years practical mining experience . . . ."
Award at 9 (emphasis in original).
A Certificate of Eligibles for the position was issued containing the
names of six applicants, including the grievant. The certificate did
not contain the name of the employee who ultimately was selected (the
selectee) for the position. On the date the certificate was issued, the
selectee "filed a request for re-evaluation and her immediate supervisor
. . . filed a request for review of classification strongly protesting
the selection process." Id. The selectee's immediate supervisor was the
selecting official for the vacancy.
Subsequently, the requirement for 5 years' practical mining
experience was deleted as a qualification requirement for the position.
A new vacancy announcement was not posted, however. An amended
certificate was prepared containing the names of eleven applicants,
including the selectee. The selecting official selected his assistant,
the selectee, for the position.
The grievant filed a grievance alleging that the Agency's actions in
filling the position violated various provisions in the parties'
collective bargaining agreement. When the grievance was not resolved,
it was submitted to arbitration.
Before the Arbitrator, the Agency conceded that "procedural errors
were made in the selection process." Id. at 11. Among other things, the
Agency conceded that applicants for the position should have been ranked
by a qualified rating examiner and that the vacancy announcement
erroneously stated that the position was outside the bargaining unit.
/1/ The Agency asserted, however, that its errors were "harmless." Id.
at 12.
The Arbitrator concluded that the Agency violated two sections of
Article 20 of the parties' collective bargaining agreement. First, the
Arbitrator found that the Agency violated section 10(A)(1) by failing to
submit the candidates' applications to a qualification rating examiner
or a merit staffing evaluation panel. /2/ Second, the Arbitrator found
that the Agency violated section 11(B)(1) by failing to conduct
interviews of the candidates. /3/ The Arbitrator also concluded that
although the Agency's failure to reannounce the vacancy after the
requirement for 5 years' mining experience was deleted "may not be a
direct violation" of the agreement, "it certainly leaves a great deal to
be desired." Id. at 14. The Arbitrator stated that if other employees
had "known of the lesser requirements for the position, most assuredly
there would have been additional applicants for the job." Id.
Finally, the Arbitrator rejected the Agency's argument that "it has a
right to determine qualifications . . . and that such matters are not
arbitrable." Id. at 15. The Arbitrator stated that the matter before
him did not "turn on management rights to set qualifications or
determine qualifications of employees." Id. Instead, according to the
Arbitrator, the matter involved the requirements of Article 20.
To remedy the violations of the parties' agreement, the Arbitrator
directed the Agency to remove the selectee from the position "with a
re-announcement of the position based on applicants at the time of the
award." Id. at 16.
The Agency excepts to the award on four grounds.
First, the Agency asserts that the Arbitrator's award violates the
Agency's rights to assign employees and assign work under section 7106(
a)(2)(A) and (B) of the Statute. The Agency claims that the Arbitrator
improperly substituted his judgment for management's in determining that
the selectee was not qualified for the disputed position.
Second, the Agency contends that the Arbitrator violated section
7105(a)(2)(A) of the Statute by determining that the disputed position
is in the bargaining unit. The Agency asserts that only the Authority
is authorized to make such determinations.
Third, the Agency contends that the Arbitrator's remedy is contrary
to Federal Personnel Manual (FPM) Chapter 335, Appendix A, section A-4b
and violates its right to make selections for appointments under section
7106(a)(2)(C) of the Statute. The Agency asserts that a selectee is
entitled to be retained in a position pending corrective action unless
it is specifically determined that he or she could not have been
properly selected.
Finally, the Agency argues that the award is unclear and "does not
give the (A)gency adequate direction as to what relief has been
granted." Exceptions at 10.
The Union claims that the Arbitrator did not determine the
qualifications necessary to perform the work of the disputed position.
The Union also contends that the Arbitrator did not resolve an issue
concerning the bargaining unit status of the disputed position. The
Union notes that after its CU petition was filed, the parties agreed
that the position was in the unit.
Finally, the Union argues that the Arbitrator's remedy is not
deficient. The Union contends that the Arbitrator properly ordered that
the selectee be removed from the position because he found that she
could not have been selected under the original vacancy announcement.
A. Management's Rights to Assign Employees and Work
The Agency's argument that the award is deficient because it violates
its rights to assign employees and assign work is misplaced. The
Arbitrator did not determine that the selectee was not qualified for the
disputed position and the award does not, in any way, restrict the
Agency's rights to establish qualifications or determine whether
employees possess required qualifications. In fact, the Arbitrator
specifically stated that the dispute before him did not "turn on
management's rights to set qualifications or determine qualifications of
employees" but rather, "turns on Article 20 . . . which requires that
the content of vacancy announcements set forth knowledge, skills, and
abilities required and their relative importance." Award at 15.
Accordingly, the Agency's exception provides no basis for finding the
award deficient.
B. Bargaining Unit Status
Section 7105(a)(2)(A) of the Statute provides that the Authority
shall "determine the appropriateness of units for labor organization
representation under section 7112 . . . ." The Authority's jurisdiction
under this provision is exclusive. As such, "factual disputes
concerning the bargaining unit status of employees must be resolved by
filing a clarification-of-unit petition with the Authority under section
2422.2(c) of our Rules and Regulations." U.S. Department of Defense,
Army and Air Force Exchange Service, Dallas, Texas and American
Federation of Government Employees, 37 FLRA 71, 75 (1990). See also U.S.
Small Business Administration and American Federation of Government
Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), motion for
reconsideration granted sub nom. U.S. Small Business Administration and
American Federation of Government Employees, Local 2532 and Council 228,
36 FLRA 155 (1990).
In this case, the Arbitrator did not resolve a dispute over the unit
status of the disputed position. Prior to the arbitration hearing, the
parties agreed that the disputed position was in the bargaining unit
represented by the Union and, as a result of that agreement, the Union
withdrew a CU petition it had filed with the Authority regarding the
issue. We note, in this regard, that the Agency does not now assert
that the disputed position is outside the unit. Accordingly, there was
no issue regarding the unit status of the position to be resolved by the
Arbitrator and the Agency's exception does not demonstrate that the
award is deficient. Compare SBA, 32 FLRA at 854 ("There is no unit
status question when the Authority has already determined that the
grievant or the grievant's position is in the unit . . . .").
C. The Arbitrator's Remedy
Except with respect to its assertion that the award is ambiguous, the
Agency does not except to the portion of the award requiring it to rerun
the selection action. Moreover, it is well established that where an
arbitrator finds that a selection action did not conform to applicable
requirements of law or a collective bargaining agreement, the arbitrator
may order that the action be rerun. For example, U.S. Small Business
Administration, Atlanta, Georgia and American Federation of Government
Employees, Local 3906, 37 FLRA 137, 143 (1990).
We agree with the Agency's argument that the portion of the award
requiring the Agency to remove the selectee from the position is
deficient, however. Where an arbitrator determines that an agency
violated proper procedures in filling a vacant position, including
procedures contained in a collective bargaining agreement, "the
incumbent employee is entitled under (FPM) Chapter 335, Appendix A,
section A-4b to be retained in the position pending corrective action
unless it is specifically determined that the incumbent originally could
not have been properly selected." U.S. Department of Defense, Delaware
National Guard, Wilmington, Delaware and Association of Civilian
Technicians, 39 FLRA 1225, 1236 (1991) (Delaware National Guard).
In this case, the Arbitrator made no finding that the selectee could
not have been selected if the Agency had followed proper procedures.
The Arbitrator found only that the Agency violated the parties'
collective bargaining agreement by its actions in filling the vacancy.
In the absence of the required finding that the selectee could not
originally have been properly selected for the position, the award is
deficient as contrary to FPM Chapter 335, Appendix A, section A-4b. /4/
See Delaware National Guard, 39 FLRA at 1236. We will, therefore,
modify the award to delete the requirement that the selectee be removed
from the position.
D. The Arbitrator's Award Is Not Ambiguous
The Agency objects to the portion of the award requiring the Agency
to "reannounce() . . . the position based on applicants at the time of
the award." Award at 16. The Agency claims that this portion of the
award "is ambiguous and does not give the (A)gency adequate direction as
to what relief has been granted." Exceptions at 10.
The Authority will find an award deficient when it is incomplete,
ambiguous, or contradictory so as to make implementation of the award
impossible. Delaware National Guard, Wilmington, Delaware and
Association of Civilian Technicians, Delaware Chapter, 5 FLRA 50, 53
(1981). The Agency has not established that the award is deficient
under this standard.
The award requires the Agency to rerun the disputed selection action.
As no contrary indication appears in the award or the record, the
Agency is required to reannounce the position and fill it in accordance
with applicable procedures. There is no basis on which to conclude that
the award is impossible of implementation. As such, the Agency's
exception provides no basis for finding the award deficient. /5/ See,
for example, Social Security Administration and American Federation of
Government Employees, SSA General Committee, 30 FLRA 381 (1987).
The Arbitrator's award is modified to delete the portion requiring
the selectee to be removed from the position.
(1) After the grievance was filed, the Union filed a clarification of
unit (CU) petition with the Authority seeking to include the disputed
position in the bargaining unit. Before the arbitration hearing was
conducted, the parties agreed that the position was in the unit and the
Union withdrew the CU petition. Joint Exhibit 11.
(2) Article 20, Section 10(A)(1) provides, in pertinent part:
If 10 or fewer eligible candidates apply, all may be certified to
the selecting official without evaluation. . . . Otherwise, the
(qualification review examiner) or panel is responsible for
identifying a reasonable number of best qualified candidates to
certify to the selecting official.
Joint Exhibit 1 at 63.
(3) Article 20, Section 11(b)(1) provides, in pertinent part:
The selecting official or his/her designee must interview each DOL
bargaining unit candidate on the certificate. The interview . . .
must be done face-to-face if the candidates are in the same
region.
Joint Exhibit 1 at 65.
(4) As that part of the remedy requiring the Agency to remove the
selectee from the position is contrary to the FPM, we do not address
whether it also violates the Agency's right to select.
(5) We express no view on the Union's contention that if the selectee
applies for the position after it is reannounced, the selectee may not
claim any experience gained during her tenure in the position.
40 FLRA 926
40 FLRA NO. 75
United States Customs Service, Region IV, Miami District, Miami,
Florida and NTEU, Case No. 4-CA-90558 (Decided May 23, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
REQUESTED INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to furnish the Union with the names
and home addresses of bargaining unit employee represented by the Union.
Case No. 4-CA-90558
UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI DISTRICT, MIAMI,
FLORIDA
(Respondent)
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party/Union)
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), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to furnish the
Charging Party with the names and home addresses of bargaining unit
employees represented by the Charging Party. The Judge granted the
General Counsel's motion for summary judgment and recommended that the
Respondent be ordered to take appropriate remedial action. The
Respondent filed exceptions to the Judge's decision. The General
Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations,
we have reviewed the rulings of the Judge and find that no prejudicial
error was committed. On consideration of the entire record, we adopt
the Judge's findings, conclusions and recommended Order.
In particular, we reject the Respondent's argument that the Judge
erred in granting the General Counsel's motion for summary judgment
without conducting an evidentiary hearing over physical safety and
privacy interests of unit employees. Although we recognize the special
circumstances in which the Agency seeks to withhold the requested
information in this case, the Agency presents no evidence satisfying the
conditions set forth in section 7114(b)(4) for withholding the
information.
The Respondent asserts that the disclosure of "Customs inspectors
identity (sic) to the public is not recommended" and that unit
employees' safety could be jeopardized "if their home addresses became
available to the public." Exceptions at 7-8 (emphasis added). In
support of its claim, the Respondent cites a Customs Service Information
Notice and Directive advising inspectors and other employees that they
need only be required to provide their badge numbers to the public due
to the possibility of harassment and reliatory measures. Composite
Exhibit "A" to Exceptions.
The Respondent's assertions are not sufficient either to raise an
issue of material fact requiring a hearing or to support the withholding
of the requested information under applicable Authority case law. In
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788, 798 (1986) (Farmers Home), the Authority stated that home addresses
of unit employees need not be disclosed where "the evidence discloses
that a union has acted in a manner which leads to the conclusion that
the employees whose addresses would be disclosed would be in imminent
danger if the union knew where they lived." Id. (citing Shell Oil Co.
v. NLRB, 457 F.2d 615 (9th Cir. 1972)) (emphasis added). Farmers Home
was reaffirmed by the Authority in U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 523
(1990), application for enforcement filed sub nom. FLRA v. U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, Nos. 90-1948 & 90-2015 and consolidated cases (1st Cir. Oct.
1, 1990). See also Department of Energy and Department of Energy,
Pittsburgh Energy Technology Center, 33 FLRA 249, 251 (1988), rev'd on
other grounds sub nom. Department of Energy and Department of Energy,
Pittsburgh Energy Technology Center v. FLRA, No. 88-1813 (D.C. Cir.
Aug. 9, 1990); Department of the Navy, U. S. Naval Ordnance Station,
Louisville, Kentucky, 33 FLRA 3, 5 (1988), rev'd on other grounds sub
nom. Department of the Navy, U.S. Naval Ordnance Station, Louisville,
Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990).
The record in this case is devoid of any evidence that employees
would be placed in imminent danger if their home addresses were released
to the Union. All the Agency's arguments concern the consequences of
disclosure to the public at large. In this regard, the Agency's
contentions, based on its Directive, center on possible threats to or
harassment of unit employees which could result from disclosure of the
employees' names to members of the public in connection with their job
duties. These contentions do not address the consequences of disclosure
of employees' home addresses to the Union, which is determinative of the
issues here. Accordingly, based on the record before us, we agree with
the Judge that the Respondent's argument is "nothing more than mere
speculation." Judge's Decision at 4.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the United States Customs Service, Region IV, Miami District,
Miami, Florida, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) 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) Furnish the National Treasury Employees Union, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Treasury Employees Union 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 Miami District Director and shall be posted in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. 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 to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the National Treasury Employees Union, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
(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, Atlanta Regional Office, Federal Labor Relations Authority,
whose address is: 1371 Peachtree Street, Suite 122, Atlanta, GA 30367,
and whose telephone number is: (404) 347-2324.
Case No. 4-CA-90558
UNITED STATES CUSTOMS SERVICE, REGION IV. MIAMI DISTRICT, MIAMI,
FLORIDA
Respondent
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Maria D. Capo, Esquire, For the Respondent
Steven P. Flig, Esquire, For the Charging Party
Linda J. Norwood, Esquire, For the General Counsel
Before: BURTON S. STERNBURG, Administrative Law Judge
The unfair labor practice complaint, which issued on August 9, 1989,
alleged that United States Customs Service, Region IV, Miami District,
Miami, Florida, (hereinafter called Respondent) violated Section 7116(
a)(1), (5) and (8) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101 et seq., (hereinafter called the
Statute), by refusing to furnish the National Treasury Employees Union,
(hereinafter called the Union), the exclusive representative of certain
of Respondent's employees, the names and home addresses of bargaining
unit employees represented by the Union.
Respondent's Answer to the Complaint, which was duly served on
September 21, 1989, admitted as to the complaint, (a) the jurisdictional
allegations; (b) that on or about May 10, 1989 the Union, as the
exclusive representative of an appropriate unit of Respondent's
employees, requested the Respondent to furnish it with the names and
home addresses of the bargaining unit employees represented by the
Union; (c) that on May 22, 1989 Respondent refused to furnish the
requested information to the Union; (d) the names and home addresses of
the unit employees are normally maintained by the Respondent in the
regular course of business; and (e) that such information is readily
available.
Respondent's Answer denied having any knowledge as to (a) whether the
requested information was necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
bargaining; and (b) whether the information requested does not
constitute guidance, advice, counsel or training for management
officials or supervisors, relating to collective bargaining.
On December 20, 1990, Counsel for the General Counsel filed a Motion
for Summary Judgment which was transferred by the Regional Director,
Region IV, Federal Labor Relations Authority, to the Chief
Administrative Law Judge, pursuant to section 2423.22(b)(1) of the
Federal Labor Relations Authority's Rules and Regulations. Subsequently
the matter was assigned to the undersigned for disposition pursuant to
section 2423.19(k) and section 2423.22(b)(3) of the Authority's Rules
and Regulations.
Respondent served it "Responde to Motion for Summary Judgment and
Cross Motion for Summary Judgment" on January 7, 1991. Thereafter, on
January 14, 1991 the Charging Party filed a "Submission in Support of
the General Counsel's Motion for Summary Judgment".
In support of its Cross Motion for Summary Judgment Respondent did
not take issue with the material facts, but requested that the General
Counsel's Motion be denied as a matter of law. In support of its
position, Respondent cited FLRA v. Dep't of the Treasury, Financial
Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S.
Ct. 863 (1990) (Dep't of the Treasury), in which the Court of Appeals
for the District of Columbia Circuit held that the Privacy Act
prohibited disclosure of employees' names and home addresses to the
employees' exclusive representatives in light of the Supreme Court's
decision in United States Dep't of Justice v. Reporters Committee for
Freedom of the Press, 109 S. Ct. 1468 (1989) (Reporters Committee).
Additionally, Respondent contended that due to the existence of a
narco-terrorist threat in the Miami District, the release of the
employees' names and home addresses could reasonably be expected to
endanger the life or physical safety of the employees. In such
circumstances, according to Respondent, the FOIA exempts the release of
the employees' names and home addresses.
The Union is the exclusive representative of employees of Respondent
in an appropriate unit. Chapter 137 of the Union has been delegated the
authority to represent unit employees located at Respondent's Miami
District Offices, Miami, Florida.
On or about May 10, 1989, Chapter 137, by its President Reta Grant,
requested the names and home addresses of the bargaining unit employees
within the Miami District. On May 22, 1989, Respondent denied the
Union's request for the name and addresses.
It is undisputed that the names and addresses of the unit employees
are normally maintained by Respondent in the regular course of business
and are reasonably available. While not admitted or denied by
Respondent, I find, based particularly upon the Authority's decision in
U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515, 532, application for enforcement filed sub nom,
FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1) (hereinafter
called Portsmouth, Naval Shipyard), that the names and addresses are
"necessary" since the ability to communicate with employees in the most
effective manner has a direct beneficial effect on the bargaining
process. Finally, although again not admitted or denied by Respondent,
I find that it is obvious that the names and addresses do not constitute
guidance, advice, counsel or training for management officials or
supervisors, relating to collective bargaining.
The decision in this case is controlled for the most part by the
Authority's decision in Portsmouth Naval Shipyard, supra, wherein the
Authority found that the release of bargaining unit employees' names and
home addresses is "necessary" within the meaning of the Statute and is
not "prohibited by law". The Authority further concluded in Portsmouth
Naval Shipyard, supra, that it would not apply the approach of the D.C.
Circuit in Dep't of the Treasury, supra, because, among other things,
the D.C. Circuit did not harmonize the Federal Service Labor-Management
Relations Statute, the Freedom of Information Act, and the Privacy Act.
With respect to Respondent's contention that the disclosure of the
names and home addresses could reasonably be expected to endanger the
life and physical safety of the customs inspectors who are involved in
narcotics interdiction, I find that such contention, which is
unsupported by any evidence, to be nothing more than mere speculation.
"Mere speculation that information might be misused in the future does
not equate with a clear and present danger" Department of the Navy, U.
S. Naval Ordnance Station, Louisville, Kentucky, 33 FLRA 3, 5;
Department of Energy and Department of Energy, Pittsburgh Energy
Technology Center, 33 FLRA 249, 251.
The Union's request for the names and home addresses of unit
employees satisfies the requirements of Section 7114(b)(4) of the
Statute. Therefore, Respondent was required to provide the data
requested by the Union, and the refusal to do so violated Sections
7116(a)(1), (5) and (8) of the Statute.
Based upon the foregoing findings and conclusions, the General
Counsel's Motion for Summary Judgment is hereby granted and it's
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 United States Customs Service, Region IV, Miami
District, Miami, Florida shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(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) Furnish the National Treasury Employees Union, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Miami District Director 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, Region IV, Federal Labor
Relations Authority, Atlanta, Georgia, 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 14, 1991.
/s/ BURTON S. STERNBURG
BURTON S. STERNBURG
Administrative Law Judge
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
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 National Treasury Employees Union, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
(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, Region IV,
whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA
30367, and whose telephone number is: (404) 347-2324.
40 FLRA 902
40 FLRA NO. 74
NFFE, Local 1482 and Dept. of Defense, Defense Mapping Agency,
Hydrographic/Topographic Center, Louisville, Kentucky, Case No.
0-NG-1833 (Decided May 22, 1991)
7105(a)(2)(E)
7106(a)(2)(B)
7106(a)(1)
7106(b)(2)
7106(b)(3)
NEGOTIABILITY DETERMINATION
AUTHORITY JURISDICTION
COVERED BY COLLECTIVE BARGAINING AGREEMENT
SUPERVISORY TRAINING
CONDITIONS OF EMPLOYMENT
VITALLY AFFECTS
RIGHT TO ASSIGN WORK
INTERNAL SECURITY PRACTICES
NEGOTIABLE PROCEDURES
APPROPRIATE ARRANGEMENTS
EMPLOYEE TRAINING
SUPERVISORY REVIEW OF BACKGROUND INVESTIGATIONS
As a preliminary matter, the Authority rejected the agency contention
that it had no duty to bargain over the proposals because the subject
matter involved is governed by the parties' agreement. The Authority
noted that it is well established that where the conditions for review
of a negotiability appeal have been met, a union is entitled to a
decision on whether a disputed proposal is negotiable, although
additional issues may exist, including whether an agency is obligated to
bargain under the terms of the agreement.
Proposal 1 requires training for supervisors who review unit
employees' personnel security questionnaires. The Authority found that
the proposal concerned a matter that vitally affects the conditions of
employment of unit employees because the effects of the proposal on
those employees are significant and material. The Authority concluded:
The proposal does directly interfere with management's right to assign
work under 7106(a)(2)(B); The proposal does not interfere with the
right to determine internal security practices; The proposal does not
constitute a negotiable procedure under 7106(b)(2); The proposal is an
appropriate arrangement under section 7106(b)(3). In this latter
regard, the Authority noted that it is reasonably foreseeable that
employees' working conditions and employment relationship could be
adversely affected by the assignment of supervisors lacking experience
and knowledge to review employees' security forms, and that the benefits
provided employees by having their personnel security forms reviewed by
supervisors who have been trained to perform that function outweighs the
burden imposed on management's right to assign work by requiring
management to provide training to supervisors.
Proposal 2 provides that unit employees will be trained in completing
the requirements of the security questionnaires. The Authority
concluded that the proposal does not directly interfere with the
Agency's right to assign work and is negotiable.
The first paragraph of proposal 3 would permit an employee to omit
information from the security form when that employee objected to having
his or her supervisor review such information, permitting the employee
to provide the information only to security personnel. The Authority
concluded that the first paragraph directly interferes with the right to
assign work and does not constitute an appropriate arrangement. The
second paragraph which requires the Agency, at an employee's request, to
provide the employee with statements and attachments that accompany the
supervisor's security form pertaining to the employee, is negotiable.
Case No. 0-NG-1833
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1482
(Union)
U.S. DEPARTMENT OF DEFENSE, DEFENSE MAPPING AGENCY, HYDROGRAPHIC/
TOPOGRAPHIC CENTER, LOUISVILLE, KENTUCKY
(Agency)
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 three proposals relating to the forms that employees
are required to complete in order to retain their security clearances.
Proposal 1 requires training for supervisors who review unit
employees' personnel security questionnaires. We find that Proposal 1
is negotiable. Proposal 2 provides that unit employees will be trained
in completing the requirements of the security questionnaires. We find
that Proposal 2 is negotiable. Proposal 3 restricts supervisory review
of employees' security forms and provides that employees will be given
any information supplied by supervisors when reviewing those forms. We
find that the first paragraph of Proposal 3 is nonnegotiable and the
second paragraph is negotiable.
The Agency contends that it has no duty to bargain over the proposals
because the subject matter involved is governed by the parties'
collective bargaining agreement. According to the Agency, "Article 3-3c
provides that the (a)greement may not be modified except by mutual
consent of the parties." Agency Statement of Position (Statement) at 4.
The Agency contends that the Union seeks to modify the agreement by
negotiating an amendment regarding a practice that was in existence at
the time the agreement was negotiated. The Agency asserts that there
has been no change in the process by which security clearances are
granted, including the review of Personnel Security Questionnaires by
supervisors. The Agency contends, therefore, that the proposals "would
constitute a change in the provisions of the agreement contrary to
Article 3-3c." Id. The Union did not address this contention.
The Agency's contention does not provide a basis for dismissing the
petition. Under section 7117(c) of the Statute and Part 2424.1 of the
Authority's Regulations, the Authority will consider a petition for
review of a negotiability issue only where the parties disagree over
whetehr a proposal conflicts with law, rule or regulation. See American
Federation of Government Employees, AFL-CIO, National Council of Field
Labor Locals, Local 3181 and U.S. Department of Labor, Mine Safety and
Health Administration, 32 FLRA 1214, 1217 (1988). Therefore, under
section 2424.1 of our regulations, when the parties are in dispute as to
whether a proposal is inconsistent with law, rule or regulation, that
dispute is properly before us.
Moreover, it is well established that where the conditions for review
of a negotiability appeal have been met, a union is entitled to a
decision from us on whether a disputed proposal is negotiable under the
Statute, although additional issues may exist, including whether an
agency is obligated to bargain under the terms of a master agreement.
See American Federation of Government Employees, Local 2736 v. FLRA, 715
F.2d 627, 631 (D.C. Cir. 1983). Consequently, to the extent that issues
exist regarding the Agency's duty to bargain on the proposals, such
issues should be resolved in other appropriate proceedings. See
National Federation of Federal Employees, Local 341 and U.S. Department
of the Interior, Bureau of Indian Affairs, Wapato, Washington, 39 FLRA
1272, 1275 (1991); American Federation of Government Employees,
AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th
Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA
302, 306 n.6 (1984). Accordingly, the claimed existence of threshold
duty to bargain questions does not preclude us from determining the
negotiability of proposals that are otherwise properly before us.
The dispute in this case concerns whether the proposals are
inconsistent with law. Consequently, we find that the conditions
governing review of negotiability issues, as described in section 2424.1
of our Regulations, have been met and we conclude that the proposals are
properly before us.
SUPERVISORY TRAINING:
The employer will provide appropriate training to supervisory
personnel who are required to review employee 5 year update
background investigation forms (Personnel Security Questionnaire).
The Union will designate one unit employee as an observer to this
training session to enable the Union to be knowledgeable of the
specifics of the training. The Union will be notified in writing
at least 10 working days in advance of the scheduled training. At
no time during the review of the said form by the supervisor will
the material be in (an) unsecured location where unauthorized
employees may have access to this data. (Only the first paragraph
is in dispute.) A. Positions of the Parties
1. Agency
The Agency states that it is "an inherent part of the Department of
Defense intelligence community." Statement at 11. The Agency also
states that it is engaged in work that is classified in the interest of
national security. According to the Agency, "(s)ome ninety percent of
its employees occupy sensitive positions and are required to have a
security clearance." Id. In particular, at its Louisville Office, the
Agency claims that it employs some 300 employees, of whom approximately
250 are represented by the Union.
The Agency states that unit employees performing classified work must
obtain and maintain a security clearance. Periodically, according to
the Agency, employees are required to complete a Personnel Security
Questionnaire (BI/SBI) (DD Form 398), which contains questions
concerning an individual's personal life. The form contains questions
pertaining to an individual's drug use, medical and psychological
history, financial history, criminal record, organizational memberships,
residences, as well as other questions. The Agency states that this
form is used by a "security specialist to assist in determining if an
employee should be granted a security clearance, or denied a security
clearance or whether an existing security clearance (should) be
continued or revoked." Id. at 2.
The Agency states that "(s)upervisors are also required to review the
DD Form 398 to determine its accuracy (to the extent of their knowledge)
and for the purpose of recommending whether a security clearance
(should) be granted or denied, or continued or revoked." Id. This
supervisory review is accomplished by completion of DMA Form 5200-6,
"Defense Mapping Agency Supervisory Review of Security Forms." /1/ Id.
The Agency contends that the part of Proposal 1 "which prescribes
supervisory training" is nonnegotiable because it: (1) does not involve
a condition of employment affecting unit employees within the meaning of
section 7103(a)(14) of the Statute; and (2) directly interferes with
management's right to assign work under section 7106( a)(2)(B) of the
Statute. Id. at 11. The Agency also contends, without explanation,
that the first paragraph of Proposal 1 directly interferes with its
right to determine its internal security practices under section
7106(a)(1).
Specifically, the Agency states that "(p)roposals regarding the
training and other working conditions of non-bargaining unit employees
(including supervisors) do not address the working conditions of
bargaining unit employees." Id. at 4. Citing Antilles Consolidated
Education Association and Antilles Consolidated School System, 22 FLRA
235 (1986) (Antilles), the Agency contends "that there is no direct
connection between the proposal and the work situation or employment
relationship of bargaining unit employees." Statement at 5. The Agency
states that the disputed portion of the proposal deals with employees
outside the bargaining unit -- supervisors -- and attempts to negotiate
the working conditions of those employees.
The Agency contends that the Authority's decision in Fraternal Order
of Police Lodge IF (R.I.) Federal and Veterans Administration, Veterans
Administration Medical Center, Providence, Rhode Island, 32 FLRA 944
(1988) (Veterans Administration Medical Center), and certain other
Authority decisions pertaining to supervisors or non-bargaining unit
employees, support its position that the proposal does not concern a
condition of employment affecting unit employees because it deals with a
working condition of supervisors.
The Agency also cites the Authority's decision in American Federation
of Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 33 FLRA 335 (1988) (Office of Personnel Management),
enforced sub nom. United States Office of Personnel Management v. FLRA,
905 F.2d 430 (D.C. Cir. 1990). In that case, the Authority set forth
the test for determining whether proposals concerning conditions of
employment of unit employees that also affect employees or positions
outside the unit are within the scope of the duty to bargain. According
to the Agency, the Authority's decision in Office of Personnel
Management is not "applicable" to Proposal 1 because the proposal "deals
exclusively with supervisory positions outside the bargaining unit."
Statement at 5.
As to management's right to assign work under section 7106(a)(2)(B)
of the Statute, the Agency contends that the Authority has "consistently
held that training constitutes the assignment of work and that union
proposals which mandate the training of employees constitutes excessive
interference with the reserved management right to assign work pursuant
to section 7106(a)(2)(B) of the Statute." Id. at 9. The Agency further
contends that "there is no adverse impact on the affected employee" and,
therefore, the proposal can not be considered an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute. Id. at 10.
2. Union
The Union contends that the proposal concerns a "working condition"
of unit employees because the employees must obtain and maintain a
security clearance in order to perform their jobs. Response at 3. The
Union also contends that unit employees temporarily promoted to
supervisory positions also review DD Form 398. The Union argues that
the performance of this additional responsibility affects the working
conditions of those temporarily assigned employees.
The Union states that at the time of its proposal, supervisors,
including temporarily promoted unit employees, were reviewing DD Form
398 with no specific training or instructions. According to the Union,
supervisors were "performing a task that concerned a critical
requirement" for unit employees "without any knowledge or training." Id.
The Union contends that its proposal constitutes a negotiable
procedure under section 7106(b)(2) or, alternatively, a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute. The
Union asserts that its proposal requires the Agency to provide training
so that unit or non-unit employees "can carry out (the security) review
function." Id. The Union argues that it is "not mandating (the) type of
training or a specific number of hours but is relying on management(')s
judgment for appropriate training." Id. The Union states that it is
"aware that management requires the personnel in security to (receive)
training to perform their security function," and that such personnel
are "very well trained." Id. Because security personnel receive
training in the review function, the Union contends that its proposal to
extend that training to supervisors who review unit employees' security
forms is "appropriate." Id.
According to the Union, a supervisor, through review of an employee's
security form, could learn "confidential information" about the employee
that could have a "chilling effect on the employee's career progression,
performance appraisal, training recommendations, travel, etc." because
of the supervisor's role in making those decisions. Id. The Union
asserts that employees' "privacy rights" must be balanced against
management's rights. Id. The Union states that the Authority "should
rule in favor of the privacy rights of the employees." Id.
B. Analysis and Conclusions
1. Proposal 1 Concerns a Matter That Vitally Affects the Conditions
of Employment of Unit Employees
The Agency contends that the disputed part of Proposal 1 is
nonnegotiable because it concerns solely the working conditions of
nonunit employees and, therefore, does not involve conditions of
employment of unit employees within the meaning of section 7103(a)(14)
of the Statute. We disagree.
The fact that a proposal has an effect on the working conditions of
nonunit employees is not in and of itself determinative of the
negotiability of the proposal. See National Federation of Federal
Employees, Local 1482 and U.S. Department of Defense, Defense Mapping
Agency, Louisville, Kentucky, 39 FLRA 1169, 1187 (1991) (Defense Mapping
Agency, Louisville, Kentucky), petition for review filed sub nom. United
States Department of Defense, Defense Mapping Agency, Louisville,
Kentucky v. FLRA, No. 91-1217 (D.C. Cir. May 10, 1991) (proposal
prescribing procedures for designation of unit employee as supervisory
backup held to "vitally affect" conditions of employment of unit
employees). Rather, such a proposal is negotiable under the Statute if
it (1) vitally affects the working conditions of unit employees and (2)
is consistent with applicable law, including the management rights
provisions of section 7106 of the Statute, and regulations. Id. A
proposal having an effect on nonunit employees will be found to "vitally
affect" the conditions of employment of unit employees if the effect of
that proposal upon unit employees' conditions of employment is
"significant and material, as opposed to indirect or incidental." Id.,
quoting International Association of Machinists and Aerospace Workers,
Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot,
Cherry Point, North Carolina, 38 FLRA 1451, 1455 (1991).
We find that Proposal 1 vitally affects the conditions of employment
of unit employees because we conclude that the effects of the proposal
on those employees are significant and material. The proposal would
require the Agency to provide appropriate training to supervisors who
are required to review employees' 5-year updates of DMA Form 398.
Supervisors are required to review this form for accuracy and for the
purpose of recommending whether an employee's security clearance should
be granted, denied, continued, or revoked. Because unit employees
perform classified work, they must obtain and maintain a security
clearance in order to perform their jobs and without such a clearance,
they would be subject to removal. See, for example, Benoist v.
Department of Defense, 40 MSPR 418 (1989) (Benoist), affirmed, 895 F.2d
1420 (Fed. Cir.) (unpublished) (per curiam), cert. denied, 110 S. Ct.
2598 (1990) (security clearance of employee holding secret clearance
revoked and employee removed from position after agency, following
interview of employee and review of security forms, determined that
employee failed to provide complete and accurate information on DD Form
398).
The accuracy and validity of the supervisory review of employees'
security forms is dependent on the ability of the supervisor to
accomplish that review and to fill out the supervisory review forms
correctly and completely. Mistakes by supervisors in performing this
review could result in the revocation of an employee's security
clearance and the loss of the employee's job. Consequently, we find
that employees have a direct and substantial interest in the ability of
their supervisors to correctly and completely perform their security
review functions. We conclude, therefore, that training for supervisors
who review employees' personal security forms is a matter that vitally
affects unit employees' conditions of employment. See Patent Office
Professional Association and Department of Commerce, Patent and
Trademark Office, 39 FLRA 783, 834-35 (1991) (Patent and Trademark
Office), petition for review filed sub nom. Department of Commerce,
Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. April 17,
1991) (proposal which required agency, among other things, to train
supervisors in evaluation of unit employees' work found to concern
matters that vitally affect the conditions of employment of unit
employees under section 7103(a)(14) of the Statute).
Consequently, as the first paragraph of Proposal 1 vitally affects
the conditions of employment of unit employees, it is negotiable unless
it is inconsistent with law, rule and regulation. We turn, then, to the
question of whether the proposal conflicts with management's right to
assign work under section 7106(a)(2)(B) of the Statute.
2. Proposal 1 Directly Interferes with Management's Right to Assign
Work Under Section 7106(a)(2)(B)
Proposals that require management to assign training to particular
employees, including supervisors, directly interfere with management's
right to assign work under section 7106(a)(2)(B) of the Statute. See,
Patent and Trademark Office, 39 FLRA at 835-36 (proposal requiring
corrective action, such as training of supervisors and reviewers,
directly interferes with management's right to assign work under the
Statute). See also U.S. Army Transportation Center, Fort Eustis,
Virginia, 33 FLRA 391, 395 (1988) (a requirement to assign training to
particular employees, including supervisors, is inconsistent with
management's right to assign work).
The disputed language in Proposal 1 would require the Agency to
provide training to supervisors who are required to review employees'
updated personal security forms -- DD Form 398. Because the disputed
language dictates the assignment of training to supervisors, it directly
interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute.
We find that Proposal 1 is distinguishable from the first two
sentences of Proposal 2 in American Federation of Government Employees,
Local 3407 and U.S. Department of Defense, Defense Mapping Agency,
Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991) (Defense
Mapping Agency). The first two sentences of that proposal required the
agency to conduct classes for employees to explain the agency's drug
testing program. We held that the proposal was negotiable because the
information to be provided in those classes: (1) concerned bargaining
unit employees' conditions of employment and (2) was disclosable to
employees. We also noted that the training required by the proposal did
not constitute instruction for employees as to how to perform the
official duties of their positions.
Proposal 1, however, concerns the training of supervisors in one of
the responsibilities of their jobs, namely, reviewing the security forms
of the employees under their supervision. As such, unlike Proposal 2 in
Defense Mapping Agency, there is a direct connection between the
training for supervisors required by Proposal 1 and the duties of
supervisory positions. Accordingly, by requiring that training, the
proposal directly interferes with management's right to assign work
under section 7106(a)(2)(B) of the Statute. See American Federation of
Government Employees, Local 2031 and U.S. Department of Veterans
Affairs, Medical Center, Cincinnati, Ohio, 39 FLRA 1155, 1157-58 (1991).
Because Proposal 1 concerns only the training of supervisors in the
performance of a specific duty of their positions, we do not address the
extent to which other proposals relating to training would directly
interfere with the right to assign work under section 7106(a)(2)(B) of
the Statute. See Defense Mapping Agency, 39 FLRA at 566.
3. Proposal 1 Does Not Directly Interfere with Management's Right to
Determine Its Internal Security Practices
We conclude that Proposal 1 does not directly interfere with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute.
Management's right to determine its internal security practices under
section 7106(a)(1) of the Statute includes the right to determine the
policies and actions that are a part of its plan to secure or safeguard
the personnel and the physical property of the Agency. See American
Federation of Government Employees, Local 1482 and U.S. Department of
the Navy, United States Marine Corps Logistics Base, Barstow,
California, 40 FLRA 12, 15 (1991) (United States Marine Corps Logistics
Base, Barstow, California). The proposal, however, does not affect
management's decision as to the policies and actions that it will adopt
to safeguard the personnel and the property of the Agency. The proposal
only requires that once management has determined what those policies
will be, insofar as they concern the granting of security clearances,
management will train supervisors in the implementation and application
of those policies in the review of employee personnel security forms.
Consequently, we find that there is nothing in the proposal that
addresses management's right to determine its internal security
practices insofar as that right includes the right to deny or revoke
security clearances. Under the proposal, the Agency would be free to
exercise the full range of its discretion with regard to security
clearances for affected employees. Accordingly, we conclude that the
disputed language does not interfere with the Agency's right to
determine its internal security practices under section 7106(a)(1).
4. Proposal 1 Does Not Constitute a Negotiable Procedure under
Section 7106(b)(2) of the Statute
Because we have found that the disputed language of Proposal 1
directly interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute, we reject the Union's contention that the
proposal constitutes a negotiable procedure under section 7106(b)(2). A
proposal that directly interferes with a management right does not
constitute a negotiable procedure under section 7106(b)( 2). See
Department of Defense, Army-Air Force Exchange Service v. FLRA, 659
F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
Accordingly, we conclude that Proposal 1 does not constitute a
negotiable procedure. Proposal 1, therefore, is nonnegotiable unless it
constitutes a negotiable appropriate arrangement under section
7106(b)(3) of the Statute.
5. Proposal 1 Is an Appropriate Arrangement Under Section 7106(b)(
3) of the Statute
The Union claims that the disputed language of Proposal 1 constitutes
an appropriate arrangement under section 7106(b)(3) of the Statute. To
determine whether the disputed language constitutes an appropriate
arrangement, we must determine whether the proposal is (1) intended to
be 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 management's rights. National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
In determining whether a proposal is an arrangement for employees
adversely affected by the exercise of management's rights, we look to
"the effects or foreseeable effects on employees which flow from the
exercise of those rights, and how those effects are adverse." Id. at 31.
The Union contends that the proposal is intended to mitigate the
adverse effect of supervisory review of employees' DD Forms 398. The
Union states that at times "59%" of the supervisory positions have been
filled by "temporary promotion(s) or detail(s) by unit employees."
Response at 3. According to the Union, DD Form 398 concerns the
retention of security clearances, which is a critical requirement for
unit employees, and temporary supervisors review that form "without any
knowledge or training." Id. The Union asserts not only that a
supervisor's input could have a "chilling effect" on an employee's
career progression but also that the supervisor could, through such
review, learn confidential information about the employee that could
affect the supervisor's view concerning the employee's work assignments.
Id.
In our view, it is reasonably foreseeable that employees' working
conditions and employment relationship could be adversely affected by
the assignment of supervisors lacking experience and knowledge to review
employees' DD Form 398. As noted above, a supervisor's review and
recommendation plays an important part in the determination of whether
employees' security clearances are continued or revoked. We conclude,
therefore, that by requiring the Agency to provide appropriate training
to supervisory personnel required to review DD Form 398, Proposal 1 is
intended to address the adverse effects resulting from the Agency's
assignment of that review function to supervisors. We find, therefore,
that the proposal constitutes an arrangement within the meaning of
section 7106(b)(3) of the Statute.
We turn, then, to the question of whether the disputed language in
Proposal 1 constitutes an appropriate arrangement or whether it
excessively interferes with management's right to assign work. In order
to determine whether the disputed language excessively interferes with
the management right, we must determine whether the burden placed on the
management right is disproportionate to the benefits to employees
conferred by the proposal. See Kansas Army National Guard, 21 FLRA at
33.
The proposal requires "appropriate" training for supervisors whose
assigned work requires them to review employees' personal security forms
or DD Form 398. The Union points out that as a result of temporary
promotions, a high percentage of bargaining-unit employees have
performed supervisory duties, including reviewing DD Form 398. The Union
further contends that it has received employee "complain(ts)" concerning
supervisory review of the forms and that the review of the forms by
supervisors has been "upsetting" to unit employees. Response at 2. The
proposal, therefore, is intended to benefit employees by providing them
with assurance that a function critical to their continued ability to
perform classified work is being performed by individuals who have
knowledge of the security review process. More specifically, having
individuals who know this process would benefit employees by assuring
that: (1) this "critical" function would be conducted fairly; (2)
employees would not be disadvantaged by an individual's lack of
knowledge of the review process; and (3) "confidential" information
would be handled properly. Id. at 3.
We note that, consistent with the Union's statement, the proposal
does "not mandat(e the) type of training or a specific number of hours
but is relying on management(')s judgment for appropriate training" of
its supervisors in the review process. Id. The proposal would only
require management to provide "appropriate" training for supervisors who
review DD Form 398. The Agency, therefore, retains the discretion to
determine the necessary training requirements. Moreover, according to
the Union's uncontroverted assertion, "management requires the personnel
in security (who also review DD Form 398) to (receive) training to
perform their security function." Id. Consequently, the Agency could,
in its discretion, provide supervisors training similar to that provided
security personnel.
We conclude that the benefit provided to employees by having their
personnel security forms reviewed by supervisors who have been trained
to perform that function outweighs the burden imposed on management's
right to assign work by requiring management to provide training to
supervisors. As noted, the Agency retains discretion as to the content,
duration, and timing of that training. In our view, therefore, Proposal
1 does not excessively interfere with management's right to assign work.
Accordingly, because we find that Proposal 1 does not excessively
interfere with management's right to assign work under section 7106(a)(
B)(2), we conclude that the proposal is a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute. See, for example,
Patent and Trademark Office, 39 FLRA at 836-38 (proposal requiring
training of supervisors and reviewers constituted a negotiable
appropriate arrangement under section 7106(b)(3)).
In finding Proposal 1 to be negotiable, we note that the Agency has
not raised any specific objections to that part of the proposal which
provides for a Union observer to be present at the training sessions.
The Agency has not alleged how this part of the proposal would conflict
with any law or regulation. In the absence of any specific arguments by
the Agency and because we find nothing in the record to show that this
part of the proposal is contrary to law or regulation, we find it to be
negotiable.
EMPLOYEE TRAINING:
The employer will provide adequate training or instruction so
that unit employees can understand the intent of the various
questions on 5 year background investigation forms. This
training/instruction will clearly indicate:
If the requested information is for the previous 5 or 15 years,
or the entire life of the employee, for each question.
(Only the first paragraph is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is nonnegotiable because it would
directly interfere with its right to assign work under section
7106(a)(2)(B) of the Statute. In support of its position, the Agency
raises the same arguments concerning its right to assign work as
mentioned in Section III.A.1., above. The Agency further contends that
"there is no adverse impact on the affected employee" and, therefore,
the proposal cannot be considered an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute. Statement at 10.
2. Union
The Union contends that Proposal 2 does not infringe on management's
right to assign work under section 7106(a)(2)(B) of the Statute, but
instead constitutes a negotiable procedure under section 7106(b)(2) of
the Statute. The Union also contends that even if the proposal
infringes on management's right to assign work, it is a negotiable
appropriate arrangement for employees adversely affected by the exercise
of that right.
The Union argues that, based on conversations with certain managers,
there are "at least 3 separate interpretations" as to the type of
information -- based on a certain time frame -- that employees should
list on DD Form 398. Response at 4. Given the various interpretations
by management, the Union claims that an employee "has no idea what the
form means." Id. According to the Union, "if an employee omits
information that (management thinks) should have been (listed) ((due) to
time frame interpretations) (,) the employee could easily lose (his or
her) security clearance (and) job by being falsely accused of
falsification of documents." Id. The Union asserts that it is
"reasonable" for management to inform an employee through training of
what is required in order to retain a security clearance. Id.
B. Analysis and Conclusions
We conclude that Proposal 2 does not directly interfere with the
Agency's right to assign work.
As noted above, the first two sentences of Proposal 2 in Defense
Mapping Agency required that the agency provide "classes" explaining
various aspects of the drug testing program for all unit employees
subject to drug testing. The agency argued that the disputed proposal
directly interfered with its right to assign work because it required
the agency to train employees.
In Defense Mapping Agency, we noted that most previous Authority
decisions involving "training" had addressed "proposals requiring an
agency to provide, or seek(ing) to limit or preclude the agency from
providing, employees with instruction on how to perform various duties
and responsibilities." 39 FLRA at 560. We noted other Authority
decisions holding that "proposals requiring only that an agency provide
employees with information, or notify employees of various actions, do
not directly interfere with management's rights and are negotiable as
long as the proposals concern conditions of employment and do not
require the release of information which otherwise is protected." Id.
at 561.
In that case, we further noted that the classes required by the
proposal did not, and were not intended to, encompass instruction of
employees in any facet of the duties and responsibilities of their jobs.
We found no indication that: (1) the classes were designed to teach
employees who have responsibilities in the drug testing program how to
accomplish those responsibilities; (2) the information was intended
directly to affect, or that it would directly affect, employees' work
performance; and (3) the information was intended to "increase the
knowledge, proficiency, ability, skill and qualifications" of unit
employees "in the performance of official duties" within the meaning of
the definition of training under 5 U.S.C. Section 4101(4). Id. at 563.
Rather, in our view, the classes required by the proposal
"constitut(ed) only the vehicle by which information (could be conveyed)
to employees." Id. Noting, among other things, that the disputed
sentences did not encompass instruction on employees' duties and
responsibilities, we concluded that "the requirement that information be
conveyed in classes (did) not otherwise mandate a conclusion that the
proposal directly interfere(d) with the (a)gency's right to assign
work." Id. at 564.
Proposal 2 concerns matters relating to "background investigation
forms" -- DD Form 398 -- that employees must complete in order to
maintain their security clearances. Specifically, Proposal 2 requires
training of unit employees on the requirements of DD Form 398. Like the
disputed sentences in Defense Mapping Agency, there is no indication in
the record that the proposal, unlike Proposal 1 above, is intended to
encompass instruction to employees on facets of their duties and
responsibilities. Although Proposal 2 refers to "training" and
"instruction," the proposal only requires that information be conveyed
to employees concerning the various questions contained on DD Form 398.
As in Defense Mapping Agency, there is no indication that the
information conveyed by the "training" referred to in the proposal is
intended to increase the knowledge, proficiency, ability, skill and
qualifications of unit employees in the performance of their official
duties.
Moreover, nothing in the record before us supports a conclusion that
the proposal would require the disclosure of information in violation of
law. We note that the Department of Defense Personnel Security Program
Regulation, 5 C.F.R. Part 154, provides specific information with
respect to the security program, including information pertaining to the
scope of the investigation, personal interviews, periodic
reinvestigations, and the reporting of information. See 5 C.F.R. Part
154 APP A, B, D and F.
Consequently, consistent with Defense Mapping Agency, we find that
Proposal 2 does not directly interfere with the Agency's right to assign
work under section 7106(a)(2)(B) of the Statute and conclude, therefore,
that the proposal is negotiable.
SUPERVISORY REVIEW OF BACKGROUND INVESTIGATION FORMS:
In the event an employee has portions of the said form (DD Form
398) which they object to having their supervisor review, then the
employee will omit that information and have it placed on the form
at the time of the security interview.
(A) unit employee, upon request, will be given an unsanitized
copy of DMA Form 5200-6 (or equivalent form) and all statements
and attachments related to the form provided by their supervisor.
The request will be delivered to the employee within 10 calendar
days of the request.
This article when agreed to locally and signed by both parties,
will be executed and sent for review by the head of the Agency by
the third working day after the local signature.
(Only the first and second paragraphs are in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is nonnegotiable because it
interferes with management's rights: (1) to determine its internal
security practices under section 7106(a)(1); (2) to determine the
technology, methods, and means of performing work under section 7106(
b)(1); and (3) to assign work under section 7106(a)(2)(B) of the
Statute.
The Agency states that the "granting or denial of security clearances
is an integral part of the Agency's plan to prevent the unauthorized
disclosure of classified defense information and to protect the national
defense." Statement at 6. The Agency also states that the review of the
Personnel Security Questionnaire and the completion of DMA Form 5200-6
by supervisors is a "continuing part of the investigatory procedures to
ensure that employees meet the standards required for assignment to
sensitive positions and access to classified information." Id. Relying
on National Federation of Federal Employees, Local 1827 and Defense
Mapping Agency, Aerospace Center, St. Louis Air Force Station,
Missouri, 16 FLRA 791 (1984), as well as other Authority decisions, the
Agency contends that the Authority has consistently held that proposals
which conflict with an agency's right to establish rules and procedures
to prevent unwarranted disclosure of privileged information conflict
with management's right to determine its internal security practices
under section 7106(a)(1) of the Statute.
The Agency claims that Proposal 3 goes to the "heart of the Agency's
security program, security policy, internal security procedures, and
security responsibilities." Statement at 6. The Agency contends that
the proposal limits "management's ability to conduct reviews of
employees' security questionnaires and obtain information relating to an
employee's trustworthiness, reliability or (loyalty) that may reflect
adversely on his/her ability to safeguard classified information." Id.
at 8. According to the Agency, Proposal 3 would prevent it from putting
into effect its internal security system of supervisory review of
Personnel Security Questionnaires, and other forms associated with the
periodic reinvestigation of employees, to ensure that they meet required
standards for assignment to sensitive positions and access to classified
information. Id. The Agency concludes, therefore, that the proposal
"directly and excessively interferes" with management's right to
determine its internal security practices under section 7106(a)(1) of
the Statute. Id.
Citing Kansas Army National Guard, the Agency contends that the
proposal does not constitute an appropriate arrangement under section
7106(b)(3) of the Statute. The Agency relies on Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384 (1987), aff'd mem. sub nom. Patent Office
Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988)
(per curiam) (Proposal Section 3.K), where the Authority found that a
proposal concerning management's determination of the content of
performance standards did not concern an arrangement because the
establishment of performance standards does not by itself adversely
affect employees. The Authority noted that an adverse effect would not
occur until action against an employee was taken by management based
upon the application of those standards. The Agency contends that, like
Patent and Trademark Office, "no adverse effect could occur as a result
of a supervisory review of an employee's (DD Form 398) unless the
supervisor provides significant adverse information when completing" DMA
Form 5200-6. Statement at 8.
The Agency also contends that the proposal does not constitute an
appropriate arrangement because it "completely abrogates management's
rights." Id. The Agency argues that an essential element of its
internal security procedures respecting security clearances is the
conduct of background investigations and periodic reinvestigations of
employees. The Agency states that, by "(p)roscribing supervisory review
of employees' security forms" and by "foreclosing supervisors from
providing significant adverse information of the (type contained on DMA
Form 5200-6) which may reflect adversely on an employee's ability to
safeguard classified information," Proposal 3 could result in management
"granting security clearances and access to classified information
contrary to national security interests." Id. at 8-9. The Agency
contends, therefore, that as the proposal "directly and excessively
interferes with the exercise of management's right to determine its
internal security practices" under section 7106(a)(1) of the Statute, it
is not an appropriate arrangement. Id. at 9.
The Agency also contends that Proposal 3 interferes with its right to
determine the technology, methods, and means of performing work under
section 7106(b)(1) of the Statute. According to the Agency, the
granting or denying of security clearances is so integrally related to
the accomplishment of its mission that the process employed constitutes
the means of performing work. The Agency states that: (1) it produces
maps and charts that are classified in the interest of national
security; (2) to produce these products it relies on classified source
material; and (3) it is charged under law to maintain the secrecy of
the products and source material in the interest of national security.
Id. at 10-11. The Agency concludes, therefore, that "it is evident"
that the "review of (DD Form 398) by supervisors" for the purpose of
recommending the granting or denial of security clearances constitutes
"work" within the meaning of section 7106(b)(1) of the Statute. Id. at
11.
The Agency also states, for the reasons expressed in connection with
Proposals 1 and 2 above, that Proposal 3 interferes with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute.
2. Union
The Union contends that the proposal does not interfere with
management's rights to determine its internal security practices or to
determine the methods and means of performing work, but instead
constitutes a negotiable procedure under section 7106(b)(2) of the
Statute. The Union also states that even if the proposal interferes
with management's rights, it constitutes a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
According to the Union, the "intent" of the proposal is to "modif(
y)" the current procedure so that an "employee can omit sensitive
information from the supervisory review and have the information placed
on the form when the security personnel review it." Response at 5. The
Union states that DD Form 398 contains some "sensitive information", for
example, "counseling, arrests, convictions, drugs, etc." which
"supervisors have no reason or need to know." Petition at 2. The Union
asserts that employees "should not be required to divulge this
information to their supervisor(s)," but "only (to) an employee in
security." Id. The Union contends that its proposal would "prevent the
employees(') privacy from being infringed on by the . . . supervisor .
. . who is going to make numerous personnel decisions on the employee."
Response at 5. In the Union's view, "the knowledge of sensitive
information (by an employee's supervisor could) have nothing but a
negative (e)ffect on the employee." Id.
B. Analysis and Conclusions
1. The First Paragraph of Proposal 3 Directly Interferes With
Management's Right to Assign Work
The first paragraph of Proposal 3 would permit an employee to omit
information from DD Form 398 when that employee objected to having his
or her supervisor review such information. The proposal would permit
the employee to provide this information only to security personnel.
According to the Union, the intent of the first paragraph of Proposal 3
is to modify the current procedures so that an "employee can omit
sensitive information from (his/her) supervisor's review and have the
information placed on the form when the security personnel review it."
Response at 5. The Union contends that DD Form 398 requires employees
to provide information that they should not be required to divulge to
supervisors but, instead, should be provided only to security personnel.
Based on the wording of the first paragraph and the Union's stated
intent, we conclude that the intent of this part of the proposal is to
limit supervisory review of DD Form 398 by removing from supervisors'
consideration information that an employee elects to omit and assigning
the review of such information -- submitted later -- only to security
personnel. By allowing employees to decide what information out of all
the information required on DD Form 398 can be reviewed by supervisors,
the proposal, in effect, prevents management from assigning to
supervisors the task of reviewing all the information required by this
form and, instead, requires that this task be performed by security
personnel.
Proposals that require management to assign particular tasks to
particular personnel, or that preclude management from assigning
particular functions to particular individuals, directly interfere with
management's right to assign work. See Defense Mapping Agency,
Louisville, Kentucky, 39 FLRA at 1179 (fourth sentence of proposal
requiring supervisory personnel to evaluate map sheets, and precluding
management from assigning that function to project directors, held to
directly interfere with management's right to assign work under section
7106(a)(2)(B) of the Statute). See also Federal Employees Metal Trades
Council and U.S. Department of the Navy, Mare Island Naval Shipyard,
Vallejo, California, 38 FLRA 1410, 1412-13 (1991). Because the first
paragraph of Proposal 3 would limit supervisory review of the
information required by DD Form 398, and would require management to
assign a portion of that function to security personnel, we conclude,
consistent with Defense Mapping Agency, Louisville, Kentucky, that the
first paragraph of Proposal 3 directly interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
Moreover, because the first paragraph of Proposal 3 directly
interferes with management's right to assign work, we find that it does
not constitute a negotiable procedure under section 7106(b)(2) of the
Statute. See Section III.B.4. of this decision.
2. The First Paragraph of Proposal 3 Does Not Constitute an
Appropriate Arrangement Within the Meaning of Section 7106(b)(3) of the
Statute
Having determined that the first paragraph of Proposal 3 directly
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute, we next decide whether the first paragraph of
Proposal 3 constitutes an appropriate arrangement under section 7106(
b)(3). See Kansas Army National Guard, 21 FLRA 24.
The Union contends that the proposal is intended to protect
employees' privacy by limiting supervisors' knowledge of sensitive
personal information disclosed by employees during the review process.
That is, the proposal limits the risk to employees that the information
provided on DD Form 398 would affect the personnel decisions made by
their supervisors. Based on the Union's statement of intent, we
conclude that the proposal would address the adverse effects on
employees of the Agency's assignment of security review functions to
supervisors. We find, therefore, that the proposal is an arrangement
for employees adversely affected by the exercise of a management right
within the meaning of section 7106(b)(3) of the Statute.
We next consider whether the first paragraph of Proposal 3
constitutes an appropriate arrangement or whether it excessively
interferes with management's right to assign work. As we noted earlier,
in order to determine whether the disputed language excessively
interferes with the management right, we must determine whether the
burden placed on the management right is disproportionate to the
benefits to employees conferred by the proposal. See Kansas Army
National Guard at 33.
We find that the burden imposed on management's ability to assign
work by the first paragraph of Proposal 3 is that management would be
precluded from assigning to supervisors the task of reviewing
information contained on the personnel security questionnaire.
Management asserts that it has assigned the review function to
supervisors because supervisors, based on their familiarity with their
employees, are better able to assess the accuracy of the information on
the personnel security questionnaire and to provide a source of
information bearing on the granting or revocation of employees' security
clearances. See Statement at 8-9. By precluding supervisors from
reviewing information provided by employees, the proposal would
frustrate the very purpose for which the Agency assigned the supervisory
review function in the first place.
In our view, such a prohibition on the assignment of work is
disproportionate to the benefits that might result from the proposal for
unit employees in a reduced risk that the information provided would
compromise supervisory personnel decisions regarding those employees.
Consequently, we find that the restriction on work assignment in the
first paragraph of Proposal 3 excessively interferes with management's
right to assign work under section 7106(a)(2)(B). We find, therefore,
that this part of the proposal does not constitute an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
See, for example, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA
at 1181. Accordingly, we conclude that the first paragraph of Proposal
3 is nonnegotiable.
In view of our conclusion that the first paragraph of Proposal 3 is
nonnegotiable because it excessively interferes with management's right
to assign work under section 7106(a)(2)(B), we find it unnecessary to
address the Agency's other contentions with respect to this part of the
proposal.
3. The Second Paragraph of Proposal 3 Is Negotiable
The second paragraph of Proposal 3 requires the Agency, at an
employee's request, to provide the employee with statements and
attachments that accompany the supervisor's DMA Form 5200-6 pertaining
to the employee. The Agency does not specifically claim that the
requirement to provide the employee with those statements and
attachments is nonnegotiable and, in the absence of any basis for
concluding otherwise, we find that the second paragraph of Proposal 3 is
negotiable. We note, moreover, that DMA Form 5200-6 itself states that
"under the provisions of the Privacy Act of 1974 the (subject of the
investigation) may have access to the information provided by the
(supervisor) if an appropriate Privacy Act request is submitted."
The Agency must negotiate on request, or as otherwise agreed to by
the parties, concerning Proposals 1, 2 and the second paragraph of
Proposal 3. /2/ We dismiss the petition for review as to the first
paragraph of Proposal 3.
(1) DMA Form 5200-6 is set forth in the Appendix.
(2) In finding that these proposals are negotiable, we make no
judgment as to their merits.
(DMA FORM 5200-6)
I have reviewed the DD Form 398, Personnel Security Questionaire, and
other forms associated with the periodic reinvestigation interview which
are to be submitted for initiation of a periodic reinvestigation on . .
. SSN: . . . . I certify by my signature below that the following
statement, as indicated and any additional information which I have
provided is true, complete and correct to the best of my belief, based
on my knowledge of the person identified above. I understand that a
knowing and willful statement on this form can be punished by fine or
imprisonment or both (See U.S. Code, Title 18, Section 1001.) I
understand my responsibilities for ensuring that information contained
on security forms is protected in accordance with the Privacy Act of
1974. I also understand that under the provisions of the privacy Act of
1974 the individual named above may have access to the information
provided by me if an appropriate Privacy Act request is submitted.
Please complete one of the following statements.
I am aware of no information of the type contained in Appendix E, (on
reverse) DoD 5200.2R, Personnel Security Program, relating to subject's
trustworthiness, reliability, or loyalty that may reflect adversely on
his/her ability to safeguard classified information.
Title and Signature . . .
Component . . . Date . . .
I am aware of information of the type contained in Appendix E, (on
reverse) DoD 5200.2R, Personnel Security Program, relating to subject's
trustworthiness, reliability, or loyalty that may reflect adversely on
his/her ability to safeguard classified information is detailed on an
attached statement.
Title and Signature . . .
Component . . . Date . . .
Background Investigation (BI) and Special Background Investigation
(SBI) shall be considered as devoid of significant adverse information
unless they contain information listed below:
1. Incidents, infractions, offenses, charges, citations,
arrests, suspicion or allegation of illegal use or abuse of drugs
or alcohol, theft or dishonesty, unreliability, irresponsibility,
immaturity, instability or recklessness, the use of force,
violence or weapons or actions that indicate disregard for the law
due to multiplicity of minor infractions.
2. All indications of moral turpitude, heterosexual
promiscuity, aberrant, deviate, or bizarre sexual conduct or
behavior, transvestitism, transsexualism, indecent exposure, rape,
contributing to the delinquency of a minor, child molestation,
wife-swapping, window-peeping, and similar situations from
whatever source. Unlisted full-time employment or education;
full-time education or employment that cannot be verified by any
reference or record source or that contains indications of
falsified education or employment experience. Records or
testimony of employment, education, or military service where the
individual was involved in serious offenses or incidents that
would reflect adversely on the honesty, reliability,
trustworthiness, or stability of the individual.
3. Foreign travel, education, visits, correspondence,
relatives, or contact with persons from or living in a designated
country. (Appendix H)
4. Mental, nervous, emotional, psychological, psychiatric, or
character disorders/behavior or treatment reported or alleged from
any source.
5. Excessive indebtedness, bad checks, financial difficulties
or irresponsibility, unexplained affluence, bankruptcy, or
evidence of living beyond the individual's means.
6. Any other significant information relating to the criteria
included in a. through q. of paragraph 2-200 or Appendix I of DoD
5200.2-R.
40 FLRA 897
40 FLRA NO. 73
Naval Aviation Depot and AFGE, Local 2225, Case No. 3-CA-90514
(Decided May 22, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
REQUESTED INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent had violated section 7116(
a)(1), (5) and (8) by failing and refusing to provide the Union with the
names and home addresses of bargaining unit employees represented by the
Union.
Case No. 3-CA-90514
NAVAL AVIATION DEPOT
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2225 AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Charging
Party with the names and home addresses of bargaining unit employees
represented by the Union. For the reasons stated below, we find that
the Respondent committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees
employed by the Respondent. By letter dated March 27, 1989, the Union
requested the Respondent to furnish it with the names and home addresses
of the bargaining unit employees employed by the Respondent.
Stipulation, Joint Exhibit 4. The Union stated that the requested
information was "needed to fully represent (bargaining unit) employees .
. . ." Id.
Since on or about April 26, 1989, and continuing to date, the
Respondent has refused to provide the Union with the requested
information. The Respondent stated that its position was that "the
release of information of this nature (is prohibited) due to Privacy Act
violations which may occur when this information is released." Id. at
5.
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available, and do not
constitute guidance, advice, counsel or training provided for management
officials or supervisors relating to collective bargaining. The parties
also stipulated that "alternative means of communication are available
to the Union to contact employees . . . ." Stipulation, paragraph 10.
The General Counsel asserts that "it is not necessary to determine if
alternative means of communication with unit employees are available in
order to reach a decision in this case." Id. at paragraph 11.
The General Counsel argues that the Authority's decision on remand in
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788 (1986) (Farmers Home), which was reaffirmed by the Authority in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990), is dispositive of the issue in the case. In Farmers
Home, the Authority concluded that section 7114(b)(4) of the Statute
entitled the exclusive representative to the names and home addresses of
bargaining unit employees. The General Counsel contends that the
Respondent's admitted failure to furnish the employees' names and home
addresses constitutes a clear violation of section 7116(a)(1), (5), and
(8) of the Statute.
Neither the Respondent nor the Charging Party filed a brief.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available. Further, it is evident from the parties'
stipulation that the other requirements of section 7114(b)(4)(A), (B),
and (C) have been met in this case.
Accordingly, consistent with the parties' stipulation and based on
the Authority's decision in Portsmouth Naval Shipyard, we find that the
Respondent was required to furnish the Union with the names and home
addresses of employees in the bargaining unit represented by the Union.
Its refusal to do so violated section 7116(a)(1), (5), and (8) of the
Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Aviation Depot shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2225, AFL-CIO, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) 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) Furnish the American Federation of Government Employees, Local
2225, AFL-CIO, the exclusive representative of certain of its employees,
the names and home addresses of all employees in the bargaining unit it
represents.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, Local
2225, AFL-CIO 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 Commander of the Naval Aviation
Depot and shall be posted in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted, and shall be maintained for 60 consecutive days thereafter.
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, 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.
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 2225, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 2225, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 892
40 FLRA NO. 72
Naval Air Station and AFGE, Local 2225, Case No. 3-CA-90516 (Decided
May 22, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
REQUESTED INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent had violated section 7116(
a)(1), (5) and (8) by failing and refusing to provide the Union with the
names and home addresses of bargaining unit employees represented by the
Union.
Case No. 3-CA-90516
NAVAL AIR STATION
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The General Counsel filed a brief with the
Authority. Neither the Respondent nor the Union filed a brief.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. By letter dated March 27, 1989, the Union requested the
names and home addresses of the unit employees it represents. By letter
dated April 17, 1989, the Respondent refused to provide the Union with
the home addresses it requested.
The parties stipulated that, within the meaning of section 7114(b)(
4) of the Statute, the requested names and home addresses are normally
maintained by the Respondent in the regular course of business, are
reasonably available, and do not constitute guidance, advice, counsel or
training provided to management officials or supervisors relating to
collective bargaining.
The General Counsel argues that the Authority's decisions in Farmers
Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788
(1986) (Farmers Home), and U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth
Naval Shipyard), application for enforcement filed sub nom. FLRA v.
U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), are dispositive of the
issues in this case. Noting that the Respondent concedes that the
requested information is normally maintained by the Respondent in the
regular course of business, is reasonably available, and does not
constitute guidance, advice, counsel or training provided for management
officials or supervisors, within the meaning of section 7114(b)(4), the
General Counsel asserts that the Respondent's admitted failure to
furnish the Union with the requested information violates section
7116(a)(1), (5), and (8) of the Statute.
As noted previously, neither the Respondent nor the Union filed a
brief with the Authority.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available to the Respondent, and does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining. Accordingly, based on
the Authority's decision in Portsmouth Naval Shipyard, we conclude that
the Respondent violated section 7116(a)(1), (5), and (8) of the Statute
by failing to furnish the Union with the names and home addresses of
unit employees represented by the Union.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Air Station shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2225, AFL-CIO, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) 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) Furnish the American Federation of Government Employees, Local
2225, AFL-CIO, the exclusive representative of certain of its employees,
the names and home addresses of all employees in the bargaining unit it
represents.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, Local
2225, AFL-CIO, 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 Commanding Officer of the Naval
Air Station and shall be posted in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted, and shall be maintained for 60 consecutive days
thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 2225, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the American Federation of Government Employees,
Local 2225, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 890
40 FLRA NO. 71
National Weather Service Employees Organization and Dept. of
Commerce, National Weather Service, Washington, D.C., Case No.
0-NG-1875 (Decided May 15, 1991)
7117
7114(c)(2)
NEGOTIABILITY CASE
AGENCY HEAD DISAPPROVAL
FAILURE TO SERVE TIMELY
The Union filed a petition for review of negotiability issues in
response to an agency head disapproval, which was not timely served on
the Union. It was determined that the petition does not raise
negotiability issues which may be addressed by the Authority under 7117.
That is, in the absence of timely service of the disapproval, the
executed agreement became effective and binding. Accordingly, the
petition for review was dismissed.
Case No. 0-NG-1875
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
(Union)
U.S. DEPARTMENT OF COMMERCE, NATIONAL WEATHER SERVICE, WASHINGTON,
D.C.
(Agency)
On April 16, 1991, the Authority issued an Order directing the
parties to show cause why the Union's petition for review in the
above-captioned should not be dismissed for failure to raise
negotiability issues which may be addressed by the Authority under
section 7117 of the Statute.
Section 7114(c)(2) of the Federal Service Labor-Management Relations
Statute (Statute) provides that the head of an agency shall approve a
collective bargaining agreement "within 30 days from the date the
agreement is executed" if the agreement complies with applicable law and
regulation. Any disapproval by an agency head must be served on the
exclusive representative within the 30 days after the execution of the
agreement. American Federation of Government Employees, AFL-CIO, Local
1760 and U.S. Department of Health and Human Services, Social Security
Administration, 28 FLRA 1142 (1987) (Social Security Administration). A
petition for review of negotiability issues filed by a union in response
to an agency head disapproval which is not timely served on the union
does not raise negotiability issues which may be addressed by the
Authority under section 7117 of the Statute. Id.
The record in this case indicates that on September 28, 1990, in a
memorandum to the Chief, Personnel Division, the Agency's Acting
Director for Personnel disapproved two provisions of a collective
bargaining agreement executed on August 29, 1990. However, nothing in
the record establishes that the disapproval was timely served on the
Union. Accordingly, in the April 16 Order to Show Cause, the Authority
directed the parties to provide evidence of the date of service of the
disapproval.
The Authority's April 16 Order stated that the parties' response to
its Order must be filed by April 30, 1991, and that failure to comply
with the Order will result in dismissal of the Union's petition. 5 C.
F.R. Section 2424.4(c)(1). Neither party filed a response to the
Authority's Order to Show Cause on or before April 30, 1991. /1/
As neither party responded to the Authority's Order with evidence
that the Agency's disapproval of the local parties' agreement was served
on the Union within 30 days after the agreement was executed, the entire
agreement, as negotiated and executed, became effective and binding on
September 29, 1990. /2/ Therefore, the Union's petition for review does
not raise a dispute concerning an effective and binding negotiated
agreement that is cognizable under section 7117 of the Statute. It is
unnecessary, therefore, to address the Agency's request that the Union's
petition be dismissed because it is moot.
Accordingly, as the Union's petition for review does not meet the
conditions for review under section 7117 and 5 C.F.R. Section 2424.1 it
is dismissed.
For the Authority.
/s/ ALICIA N. COLUMNA
Alicia N. Columna
Director, Case Control Office
(1) On May 3, 1991, the Agency filed a letter stating that "(t)he
agency no longer intends to furlough NWS unit employees during the
fiscal year 1991." and request that the Authority dismiss the Union's
petition for review as moot. On May 7, 1991, the Union filed a response
to the Agency's May 3 submission, contending that the petition is not
moot, but that it does not oppose dismissal of its appeal on the basis
that the Agency failed to serve its disapproval within the time limit
established by the Statute
(2) Provisions in the agreement that are contrary to the Statute or
other applicable law, rule or regulation may not be enforceable. 5 U.
S.C. Section 7114(c)(3). Questions as to the validity of such
provisions may be raised in other appropriate proceedings.
40 FLRA 881
40 FLRA NO. 70
Dept. of the Navy, Naval Resale Activity, Naval Air Station-Memphis,
Millington, Tennessee and NAGE, Local R5-66, Case No. 4-CA-90632
(Decided May 15, 1991)
7116(a)(1), (5) and (8)
UNFAIR LABOR PRACTICE
FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to furnish the Union with the names
and home addresses of bargaining unit employees.
Case No. 4-CA-90632
DEPARTMENT OF THE NAVY, NAVAL RESALE ACTIVITY, NAVAL AIR
STATION-MEMPHIS, MILLINGTON, TENNESSEE
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-66, AFL-CIO
(Charging Party)
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), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to furnish the
Charging Party with the names and home addresses of bargaining unit
employees represented by the Charging Party. The Judge granted the
General Counsel's motion for summary judgment and recommended that the
Respondent be ordered to take appropriate remedial action. The
Respondent filed exceptions to the Judge's decision. The General
Counsel filed an opposition to the Charging Party's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations,
we have reviewed the rulings of the Judge and find that no prejudicial
error was committed. On consideration of the entire record, we adopt
the Judge's findings, conclusions and recommended 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 Department of the Navy, Naval Resale Activity,
Naval Air Station-Memphis, Millington, Tennessee, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R5-66, AFL-CIO, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured them 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 National Association of Government Employees, Local
R5-66, AFL-CIO, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by National Association of Government Employees, Local
R5-66, AFL-CIO, 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 Commanding Officer of the
Department of the Navy, Naval Resale Activity, Naval Air
Station-Memphis, Millington, Tennessee 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, Atlanta, Georgia, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R5-66, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Association of Government Employees,
Local R5-66, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(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, N.E., Suite
122, Atlanta, GA, 30367, and whose telephone number is (404) 347-1032.
Case No. 4-CA-90632
DEPARTMENT OF THE NAVY, NAVAL RESALE ACTIVITY, NAVAL AIR
STATION-MEMPHIS, MILLINGTON, TENNESSEE
Respondent
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-66, AFL-CIO
Charging Party
Richard S. Jones, Esquire, For the General Counsel
Mr. Richard R. Giacolone, For the Respondent
Before: JESSEE ETELSON, Administrative Law Judge
This is another in the series of "names and addresses" cases that may
have to await some action by the Supreme Court for final resolution.
There is nothing unusual about this particular case, and the Respondent
has raised only one argument that is not familiar to me. Counsel for
the General Counsel moved for summary judgment, the motion was duly
transferred to the Chief Administrative Judge, and the Respondent filed
an opposition to the motion, labelled by the Respondent as a "motion to
dismiss General Counsel's motion for summary judgment."
The case was assigned to me for disposition pursuant to section
2423.19(k) and section 2423.22(b)(3) of the Authority's Regulations.
Based on the entire record, and it appearing that there are no genuine
issues of material fact, I find and conclude as follows.
National Association of Government Employees, Local R5-66, AFL-CIO
(the Union) is the exclusive bargaining representative for a unit of the
Respondent's employees that is appropriate for collective bargaining.
On June 1, 1989, the Union, by its president, requested that the
Respondent provide it with the names and home addresses of the employees
the Union represents. This request stated that it was necessary in
order for the Union to "fulfill our representational obligations." The
Respondent normally maintains these names and addresses in the regular
course of business and they are reasonably available.
On June 9, 1989, the Respondent informed the Union that it declined
to furnish the information requested, "because of our concern for the
privacy of the employees involved." This letter also stated that "(t)
here should be alternate means available to you for obtaining this
information." The Union filed a timely unfair labor practice charge
alleging the Respondent's refusal to provide the information and the
Authority's Regional Director issued an unfair labor practice complaint.
The Respondent contests its obligation under section 7114(b)(4) of
the Federal Service Labor-Management Relations Statute (the Statute) to
furnish the names and home addresses on two grounds. First, it denies
that such data is "necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining." Second, it asserts that furnishing of the names
and addresses is prohibited by law -- by the Privacy Act, 5 U.S.C.
Section 552a. The Respondent asserts that this case is inappropriate
for summary judgment in favor of the General Counsel because, if given
the opportunity, it would prove that the Union had alternate means to
accomplish the purposes for which it seeks the data and that, in
connection with the Privacy Act defense, some employees may have
particularly strong reasons for fearing the release of their home
addresses, including fear of violence or harassment from the Union or
from separated or former spouses.
This case is controlled by U.S. Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990),
application for enforcement filed sub nom. FLRA v. U.S. Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No.
90-1949 (1st Cir. Oct. 1, 1990). For the reasons fully set forth in
Portsmouth Naval Shipyard, the names and home addresses of bargaining
unit employees are "necessary" within the meaning of section 7114(b)(
4)(B) of the Statute and their release is not "prohibited by law."
Portsmouth Naval Shipyard requires my rejection of the Respondent's
contention that it should be given an opportunity to prove that the
Union has alternative means of communicating with the employees it
represents. For the Authority expressly reaffirmed there (Id. at
522-23, 539) its previous doctrine that the question of whether
disclosure of data is relevant and necessary to a union's
representational functions is to be considered without regard to the
availability of alternative means of communication.
With respect to the Respondent's suggestion that special
circumstances might be present here to warrant protection of certain
employees from disclosure of their home addresses to the Union, none of
the potentially provable "facts" recited by the Respondent are "materal"
under applicable law. Thus, the Respondent asserts that some employees
have unlisted phone numbers and "may" use Post Office boxes to secure
their privacy. (As to the latter, such boxes presumably would
constitute the addresses to which the Union is entitled.) The Respondent
also asserts that some of their divorced or separated spouses "may have
abused them or their children," that such employees "may simply wish to
conceal their current location" from their divorced or separated
spouses, and that such spouses "may" be currently employed by the
Respondent and could "gain access to the home addresses through their
involvement in union activity or through the failure of the union to
safeguard this information."
All of this is too speculative to require a hearing. The only aspect
that warrants further comment is the Union's responsibility to prevent
unauthorized and inappropriate use of data released to a union for the
limited purpose of performing its representational functions. The
Authority has recognized such a responsibility and the consequences to
unions who disregard it. See Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, 25 FLRA 1060, 1063 (1987); U.S. Equal
Employment Opportunity Commission, Washington, D.C., 20 FLRA 357, 362
(1985); Department of the Air Force, Scott Air Force Base, Illinois, 38
FLRA 410, 435 (1990). Should a real situation develop in which special
precautions need to be taken to insure the safety of an employee in her
or his home, appropriate steps should be and can be taken. Portsmouth
Naval Shipyard, however, does not permit the potential for such
situations to govern the general applicability of the Statute's
disclosure provisions.
For all of these reasons, the General Counsel's Motion for Summary
Judgment is granted. I conclude that the Respondent has violated
sections 7116(a)(1), (5), and (8) of the Statute and 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 Department of the Navy, Naval Resale Activity,
Naval Air Station-Memphis, Millington, Tennessee, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Association of
Government Employees, Local R5-66, the exclusive representative of
certain of its employees, the names and home addresses of all employees
in the bargaining unit it represents.
(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) Furnish National Association of Government Employees, Local
R5-66, AFL-CIO, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by National Association of Government Employees, Local
R5-66, AFL-CIO, 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 Commanding Officer of the
Department of the Navy, Naval Resale Activity, Naval Air
Station-Memphis, Millington, Tennessee 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, Region IV, 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, April 8, 1991.
/s/ JESSE ETELSON
JESSE ETELSON
Administrative Law Judge
WE WILL NOT refuse to furnish, upon request of National Association
of Government Employees, Local R5-66, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
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 National Association of Government Employees, Local
R5-66, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(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
Region, whose address is: 1371 Peachtree Street, N.E., Suite 122,
Atlanta, GA 30367, and whose telephone number is: (404) 347-1032.
40 FLRA 876
40 FLRA NO. 69
Dept. of Interior, National Park Service, Washington, D.C. and
International Brotherhood of Electrical Workers, Local 26, Case No.
3-CA-10074 (Decided May 10, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)(A), (B) & (C)
UNFAIR LABOR PRACTICE
FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent had violated section 7116(
a)(1), (5) and (8) by failing and refusing to provide the Union with the
names and home addresses of bargaining unit employees.
Case No. 3-CA-10074
U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, WASHINGTON,
D.C.
(Respondent)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 26
(Charging Party)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Charging
Party (the Union) with the names and home addresses of bargaining unit
employees represented by the Union. For the reasons stated below, we
find that the Respondent committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees
employed by the Respondent. By letter dated October 18, 1990, the Union
requested the Respondent to furnish it with the "names and (home)
addresses of all Kennedy Center employees within the bargaining unit
represented by (the Union)." Stipulation, Joint Exhibit 4. The Union
stated that "(t)his information is being requested under (section)
7114(b)(4) of (the Statute)." Id.
Since on or about October 23, 1990, and continuing to date, the
Respondent has refused to provide the Union with the requested
information. The Respondent stated that its position was "not to
release information containing employee names and home addresses on the
basis that this is a violation of the Privacy Act . . . ." Stipulation,
Joint Exhibit 5.
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available, and do not
constitute guidance, advice, counsel or training provided for management
officials or supervisors relating to collective bargaining. The
Respondent asserts that "adequate means of communication exist for the
Union to communicate with bargaining unit employees . . . ."
Stipulation, paragraph 10. The General Counsel asserts that "it is not
necessary to determine if alternative means of communication with unit
employees are available in order to reach a decision in this case."
Stipulation, paragraph 11.
The General Counsel argues that the Authority's decision on remand in
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788 (1986) (Farmers Home), which was reaffirmed by the Authority in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990), is dispositive of the issue in the case. In Farmers
Home, the Authority concluded that section 7114(b)(4) of the Statute
entitled the exclusive representative to the names and home addresses of
bargaining unit employees. The General Counsel contends that the
Respondent's admitted failure to furnish the employees' names and home
addresses constitutes a clear violation of section 7116(a)(1), (5), and
(8) of the Statute.
The Respondent disagrees with the Authority's rationale in its
decision in Portsmouth Naval Shipyard. The Respondent contends that the
release of employees' home addresses is prohibited by law, specifically,
certain provisions of the Freedom of Information Act, 5 U.S.C. Section
552, and the Privacy Act, 5 U.S.C. Section 552a. The Respondent argues
that Portsmouth Naval Shipyard is "in direct conflict" with FLRA v.
Department of the Treasury, Financial Management Service, 884 F.2d 1446
(D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990) (FLRA v.
Department of the Treasury). Respondent's Brief at 1, 2. The
Respondent claims that FLRA v. Department of the Treasury "is the
governing law in the District of Columbia regarding the non-disclosure
of home addresses of the employees of the Kennedy Center, in Washington,
D.C., National Park Service." Id. at 1.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available. Further, it is evident from the parties'
stipulation that the other requirements of section 7114(b)(4)(A), (B),
and (C) have been met in this case.
The Respondent contends that the court's decision in FLRA v.
Department of the Treasury "is the governing law . . . regarding the
non-disclosure of home addresses of the employees of the Kennedy Center,
in Washington, D.C., National Park Service." Respondent's Brief at 1.
To the extent that the Respondent is arguing that the Authority is
required to follow FLRA v. Department of the Treasury, we reject that
contention. See Yellow Taxi Company of Minneapolis v. NLRB, 721 F.2d
366, 384 (D.C. Cir. 1983) (Wright, J., concurring).
Accordingly, consistent with the parties' stipulation and based on
the Authority's decision in Portsmouth Naval Shipyard, we find that the
Respondent was required to furnish the Union with the names and home
addresses of employees in the bargaining unit represented by the Union.
Its refusal to do so violated section 7116(a)(1), (5), and (8) of the
Statute.
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, National Park Service,
Washington, D.C. shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International
Brotherhood of Electrical Workers, Local 26, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) 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) Furnish the International Brotherhood of Electrical Workers,
Local 26, the exclusive representative of certain of its employees, the
names and home addresses of all employees in the bargaining unit it
represents.
(b) Post at its facilities where bargaining unit employees
represented by the International Brotherhood of Electrical Workers,
Local 26 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 for Fish and
Wildlife and Parks and shall be posted in conspicuous places, including
all bulletin boards and other places where notices to employees are
customarily posted, and shall be maintained for 60 consecutive days
thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the International
Brotherhood of Electrical Workers, Local 26, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the International Brotherhood of Electrical Workers,
Local 26, the exclusive representative of certain of our employees, the
names and home addresses of all employees in the bargaining unit it
represents.
(Activity)
Dated: . . . By: . . . (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 868
40 FLRA NO. 68
AFGE, Local 1692 and Dept. of the Air Force, Mather Air Force Base,
California, Case No. 0-NG-1856 (Decided May 10, 1991)
7105(a)(2)(E)
7106(a)(2)(A)
7106(b)(3)
NEGOTIABILITY DETERMINATION
DRUG USE
REHABILITATION
EXEMPTION FROM DISCIPLINE
MANAGEMENT'S RIGHT TO DISCIPLINE
APPROPRIATE ARRANGEMENT
The case concerned the negotiability of a proposal exempting from
discipline an employee who voluntarily admits to the use of illegal
drugs, participates in a rehabilitation program, and thereafter refrains
from using drugs. The Authority interpreted the proposal in accordance
with the plain wording, rejecting the adoption of an explanation from
the Union that was inconsistent with the terms of the proposal. The
Authority concluded that by exempting from discipline employees who meet
the terms of the proposal, the proposal directly interferes with
management's right under 7106(a)(2)(A) to discipline. However, as the
proposal does not excessively interfere with management's right to
discipline, it is negotiable as an appropriate arrangement under
7106(b)(3).
Case No. 0-NG-1856
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1692
(Union)
and
U.S. DEPARTMENT OF THE AIR FORCE, MATHER AIR FORCE BASE, CALIFORNIA
(Agency)
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). The case concerns the negotiability of
a proposal exempting from discipline an employee who voluntarily admits
to the use of illegal drugs, participates in a rehabilitation program,
and thereafter refrains from using drugs. For the following reasons, we
find that the proposal is negotiable.
We conclude that the Agency's Statement of Position was untimely
filed. Consequently, we will not consider the Agency's Statement of
Position in our decision.
Under section 2424.6 of the Authority's Rules and Regulations, the
time limit for filing an agency statement of position in a negotiability
case is 30 days after receipt of a union's petition for review. In this
case, the Agency states that it received the Union's petition for review
on August 1, 1990. Under section 2424.6 of the Authority's Rules and
Regulations, therefore, the Agency's Statement of Position was due at
the Authority on August 31, 1990. /1/ The Statement of Position was
filed with the Authority by personal delivery on September 4, 1990.
Consequently, the Statement of Position was untimely filed.
Illegal Drug Use Problems
To complement the effort of the EAP to eliminate the adverse
effects of illegal drug use in the workplace and ensure compliance
with Executive Order 12564, a voluntary referral procedure is
established to encourage illegal drug users to seek counseling and
rehabilitation without the risk of disciplinary action. This is
referred to as providing the employee "safe harbor." Accordingly,
any employee who voluntarily identifies himself or herself as a
user of illegal drugs will be provided "safe harbor" and be exempt
from disciplinary action for the admitted acts of illegal drug
use, including possession incidental to such use, provided the
employee:
1. Voluntarily makes such disclosure to a superior official
prior to being identified through other means.
2. Obtain(s) counseling and rehabilitation through EAP.
3. Agrees to be tested by the activity during counseling and
rehabilitation and during the post-treatment and evaluation phase.
4. Consents, in writing, to the release of all records related
to counseling and rehabilitation, including urinalysis test
results, to appropriate management and EAP officials.
5. Thereafter refrains from using illegal drugs.
A. Agency
Because the Agency did not respond to the Union's request for an
allegation of nonnegotiability and because the Agency's Statement of
Position was untimely filed, there are no Agency contentions as to the
negotiability of the proposal in the record of this case. See section
2424.3 of the Authority's Rules and Regulations, providing for union
appeal of a negotiability issue when an agency fails to respond to a
written request by the union for an allegation of nonnegotiability.
B. Union
The Union states that the intent of the proposal is "to recognize the
provisions set out in (Federal Personnel Manual) FPM Supplement 792-2
which (provide) that disciplinary actions are not required in cases
where employees voluntarily come forward for rehabilitation as illegal
drug users." Petition for Review at 2. The Union also states that the
proposal "is not intended to apply to any non-drug usage activity which
might otherwise provide a basis for discipline." Id.
The Union contends that the proposal is intended to alleviate the
adverse effects on employees of management's right to discipline.
According to the Union, disciplinary action against an employee when
that employee is undergoing treatment and rehabilitation would undermine
the objective of the discipline and of the drug-free workplace program
because the incentive to maintain rehabilitation is taken away when
there is no "safe harbor." Id.
The Union explains that the proposal provides employees with
protection "from related misconduct due to the disability" if they
conform to the conditions set out in the proposal. Union Response at
11. The Union "concedes" that the proposal interferes with management's
right to discipline by limiting management's ability to discipline
employees for cause during the rehabilitation process, but contends that
the proposal is an appropriate arrangement under section 7106(b)(3) of
the Statute. Id.
The Union states that the proposal would "shield" cooperating
employees who are in the process of rehabilitation against disciplinary
action, the adverse effects of which would "vary with the seriousness
and type of offense." Id. at 12. As to employees who use illegal drugs,
the Union claims that, under the Rehabilitation Act of 1973, the Agency
must make accommodation for those employees and that a "substantial part
of that accommodation" would be providing for "rehabilitation free from
the imposition (of discipline) for the drug abuse itself." Id. at 13.
The Union acknowledges that discipline may be warranted in some
cases, but contends that the Agency "should provide that employees who
voluntarily come forward for assistance in defeating a drug abuse
problem should not be disciplined for illicit drug use . . . by joining
the program." Id. The Union also indicates that the proposal would not
protect employees from "actionable offenses" that are unrelated to
illegal drug use. Id.
The Union claims that the Agency is required by law and regulation to
implement an EAP. In support of this claim, the Union cites Public Law
91-616 and Public Law 92-255, Section 5 of Executive Order 12564, and
Sections 1(d), 5(d), and 7 of FPM Supplement 792-2. According to the
Union, these provisions foster the objective of rehabilitating and
retaining employees who cooperate in overcoming their problems. The
Union also contends that, under these provisions, agencies must refer
employees to an EAP and that the EAP must be "rehabilitative and
non-punitive in nature." Id. at 15. The Union argues that the "obvious
premise" behind these provisions "is that it is fundamentally
incompatible for discipline to be imposed for . . . drug abuse while an
employee is attempting to rehabilitate himself or herself by attending
and abiding by" the EAP. Id. at 16.
The Union contends that the proposal provides the same criteria for a
"safe harbor" as those provided by the FPM. The Union argues that those
criteria "minimize" the effect of the proposal on Agency operations.
Id. at 17. Because referral to an EAP is mandatory, the Union asserts,
it must be assumed that discipline will be held in abeyance or not taken
at all. The Union concludes that the effect of the proposal is "to
enforce what is already a favored program." Id. According to the Union,
public policy favors retaining an employee in whom the Agency has a
considerable investment in training and rehabilitating employees so as
to reduce the use of illegal drugs.
By its terms, the proposal would exempt from discipline for use of
illegal drugs, or possession incidental to that use, any employee who:
(1) voluntarily admits to using such drugs; (2) obtains counseling or
rehabilitation through an EAP; (3) agrees to be tested during
rehabilitation and the post-treatment and evaluation phase; (4) gives
written consent to the release of all records concerning rehabilitation
to appropriate officials; and (5) thereafter refrains from using
illegal drugs.
The plain wording of the proposal applies only to drug use and
possession incidental to that use. Certain statements of the Union,
however, appear to interpret the proposal as immunizing employees from
discipline not only for the use and possession of illegal drugs, but
also for conduct related to illegal drug use. Because the statements of
the Union are inconsistent with the plain wording of the proposal, we
will interpret the proposal in accordance with that plain wording. We
will not adopt an explanation of a proposal that is inconsistent with
the terms of that proposal. See National Association of Government
Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31
FLRA 62, 67 (1988). Consequently, as we interpret the proposal, it
would not preclude discipline against employees for conduct, whether
related or unrelated to the use or possession of illegal drugs. Rather,
the proposal would preclude discipline only for the use or possession of
illegal drugs. Interpreted in this manner, we find that the proposal is
negotaible.
Under section 5(b) of Executive Order 12564, agencies are required to
"initiate action to discipline any employee who is found to use illegal
drugs." The requirement for disciplinary action against employees who
use drugs does not apply, however, to employees who "voluntarily
identify themselves as users of illegal drugs," "obtain counseling or
rehabilitation through an" EAP, and thereafter refrain from using
illegal drugs. Section 5(b) of Executive Order 12564. See Section 5(d)
of Federal Personnel Manual (FPM) Letter 792-19, 54 Fed. Reg. 14024,
14028 (April 6, 1989). See also International Federation of
Professional and Technical Engineers, Local 128 and U.S. Department of
the Interior, Bureau of Reclamation, 39 FLRA 1500, 1523 (1991) (Bureau
of Reclamation). Consequently, consistent with the Executive Order and
the FPM Letter, agencies can decide not to initiate discipline against
employees who voluntarily disclose to management that they use, or have
used, illegal drugs. American Federation of Government Employees, Local
738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA
1203, 1212-13 (1990) (Fort Leavenworth) (Member Talkin dissenting as to
other matters). Therefore, by precluding the Agency from disciplining
employees who voluntarily disclose that they use, or have used, illegal
drugs, enter rehabilitation, and refrain from using drugs thereafter,
the proposal does not violate the Executive Order or the FPM Letter.
The decision as to whether to take disciplinary action against an
employee, however, constitutes an exercise of management's right to
discipline employees under section 7106(a)(2)(A) of the Statute. See,
for example, American Federation of Government Employees, AFL-CIO, Local
1458 and U.S. Department of Justice, Office of the U.S. Attorney,
Southern District of Florida, 29 FLRA 3, 19-20 (1987). The issue in
this case, therefore, is whether the limitations imposed by the proposal
on management's right to discipline render the proposal nonnegotiable.
Proposals that preclude management from taking disciplinary action
against employees for a particular offense directly interfere with
management's right to discipline under section 7106(a)(2)(A). See
International Organization of Masters, Mates and Pilots, Panama Canal
Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274-76 (1988)
(Panama Canal Commission). As the Union acknowledges, by exempting from
discipline employees who voluntarily disclose to management that they
use, or have used, illegal drugs, the proposal directly interferes with
management's right under section 7106(a)(2)(A). We conclude, therefore,
that unless the proposal constitutes an appropriate arrangement within
the meaning of section 7106(b)(3) of the Statute, the proposal is
nonnegotiable.
We turn, then, to the Union's claim that the proposal is an
"appropriate arrangement." To determine whether a proposal constitutes
an appropriate arrangement, we must determine whether the proposal is:
(1) intended to be 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 management's rights. See
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
As to whether the proposal is an "arrangement" for employees
adversely affected by the exercise of a management right, according to
the Union, the proposal is intended to "shield" from the adverse effects
of disciplinary action those employees who voluntarily cooperate with
the Agency's drug testing program and who undertake rehabilitation.
Union Response at 12. The Union explains that removing the threat of
discipline benefits employees by eliminating a disincentive for
employees to admit their drug usage and to participate in an EAP. Id.
at 18. We find, therefore, that the proposal constitutes an arrangement
for employees adversely affected by the exercise of a management right
within the meaning of section 7106(b)( 3). See Fort Leavenworth,
Kansas, 38 FLRA at 1215.
In determining whether the proposal is an "appropriate" arrangement,
we weigh the effect of the proposal on management's right to discipline
against the benefits to employees that result from the proposal in order
to determine whether the proposal excessively interferes with the right
to discipline. See Kansas Army National Guard, 21 FLRA at 31-33. We
conclude that the proposal does not excessively interfere with
management's rights.
The proposal applies only to employees who voluntarily admit that
they use, or have used, illegal drugs and thus would not preclude
discipline against employees who are found through the drug testing
program to be using illegal drugs. By its plain wording, the proposal
covers only the illegal use of drugs or possession incidental to that
use and does not immunize employees from discipline on any other ground,
including conduct related to or resulting from the use of illegal drugs
or actions unrelated to the use of illegal drugs. Compare Panama Canal
Commission, 32 FLRA at 275-76 (proposal immunizing employees from
discipline for acts or omissions resulting from illegal drug use if they
enroll in a drug rehabilitation program held nonnegotiable). Moreover,
the proposal does not preclude disciplinary action against the employee
if the employee is subsequently found to be using illegal drugs. The
burden imposed by the proposal on management's right to discipline is
therefore limited.
On the other hand, by exempting employees from discipline, the
proposal affords employees a benefit by providing them with a
significant incentive voluntarily to disclose to management that they
use, or have used, illegal drugs and to enter counseling and
rehabilitation. In addition, as the Union indicates, Federal personnel
policy encourages the suspension of disciplinary action to permit the
employee to complete rehabilitation and return to a satisfactory
performance level. See, for example, FPM Supplement 792-2, section 6-9.
On balance, therefore, we find that the benefit to employees under the
proposal of being exempt from discipline if they voluntarily disclose
that they use illegal drugs, enter rehabilitation, and refrain from
using drugs thereafter outweighs the burden imposed by the proposal on
management's right to discipline. Consequently, we find that the
proposal does not excessively interfere with management's right to
discipline employees and conclude that the proposal is a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that the proposal is negotiable.
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain on the proposal. /2/
(1) Because the Agency states that it received the Union's petition
for review on August 1, 1990, section 2429.22 of the Authority's Rules
and Regulations, providing for the addition of 5 days to the due date if
a party is served by mail, does not apply.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
40 FLRA 849
40 FLRA NO. 67
National Treasury Employees Union and Dept. of the Treasury, Office
of Chief Counsel, Internal Revenue Service, Case No. 0-NG-1582 (39 FLRA
27) (Decided May 10, 1991)
REQUEST FOR RECONSIDERATION
FAILURE TO SERVE STATEMENT OF POSITION
PROOF OF SERVICE
NEGOTIABILITY DETERMINATION
REQUESTS FOR OUTSIDE EMPLOYMENT
AGENCY REGULATIONS
FAILURE TO MEET BURDEN TO DEMONSTRATE CONFLICT
GOVERNMENT-WIDE REGULATION
5 C.F.R. 735.201a(f)
RIGHT TO ASSIGN WORK
PROBATIONARY EMPLOYEES
OPM REGULATIONS
PROCEDURAL SAFEGUARDS
PROCEDURES REGARDING TERMINATION
WITHIN GRADE INCREASES
ADVANCE NOTICE
The Authority had initially dismissed a portion of the negotiability
appeal on the basis of the Agency's undisputed contention that certain
articles were no longer in dispute. The Union filed the instant request
for reconsideration, contending that the articles were still in dispute
and that they had not contested the Agency's assertion because they were
not served with a copy of the statement of position filed by the Agency
with the Authority. Finding that the Agency had not provided the
required proof of service, the Authority concluded that extraordinary
circumstances had been presented for granting the request for
reconsideration. The Authority then dealt with the merits of the
disputed proposals.
The first disputed proposals established procedures for employees
seeking approval of requests for outside employment. The Authority
rejected the Agency's assertion that the proposal was inconsistent with
an Agency regulation for which there is a compelling need, concluding
that the Agency failed to meet its burdenof demonstrating that a
conflict exists between the article and the regulation. As to the
contention that the proposal conflicts with government-wide regulation,
specifically 5 C.F.R. 735.201a(f), the Authority found that the wording
of the proposal does not conflict with the regulation. The Authority
also noted as to the Agency assertion that "attorney conduct which may
be permitted under applicable Federal law may, nevertheless, be
proscribed under ABA's professional code," its precedent that such codes
developed by a particular jurisdiction are not government-wide
regulations within the meaning of 7117(a)(1). Therefore the proposal is
negotiable.
Section 1 of the second disputed proposal requires the Agency to
inform probationary employees of their progress before the end of the
tenth month of their probationary period. The Authority found the
proposal negotiable, concluding that it does not afford probationary
employees procedural protections beyond those established by OPM.
Sections 2 through 4 of the proposal, which provides procedural
protections to probationary employees, was found to afford procedural
protections beyond those provided by OPM and, therefore, to be
nonnegotiable. Similarly, the remaining portions of the proposal which
establish procedures governing the termination of probationary
employees, were found to be nonnegotiable because they go beyond the
procedural protections provided by law and regulation.
The last portion of the proposal, which requires advance notification
to employees that their within-grade increase may be withheld, was found
to be negotiable as it did not conflict with FPM requirements.
Case No. 0-NG-1582 (39 FLRA 27 (1991))
NATIONAL TREASURY EMPLOYEES UNION
(Union)
DEPARTMENT OF THE TREASURY, OFFICE OF CHIEF COUNSEL, INTERNAL REVENUE
SERVICE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is again before the Authority on a Request for
Reconsideration filed by the Union under section 2429.17 of the
Authority's Rules and Regulations. The Union's request alleges that
extraordinary circumstances require the Authority to consider three
provisions of the parties' negotiated agreement which were not addressed
in 39 FLRA 27, petition for review filed on other matters sub nom. U.S.
Department of the Treasury, Office of General Counsel, Internal Revenue
Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991). We grant the
Union's request for reconsideration and will decide the negotiability of
the three provisions.
For the following reasons, we find that Article 6, concerning
approval of employees' requests for outside employment, is negotiable.
Section 1 of Article 28, requiring the Agency to inform probationary
employees of their progress before the end of the tenth month of their
probationary period, is negotiable. The remaining disputed portions of
Article 28, establishing procedures governing the termination or
probationary employees, are nonnegotiable. The disputed part of Article
29, requiring advance notification to employees that their within-grade
increases may be withheld, is negotiable.
A. Article 6
From November 1, 1988, to November 22, 1989, the Federal Labor
Relations Authority lacked a quorum of Members and was unable to issue
decisions. Because so much time had elapsed, by letter dated January 4,
1990, we requested the parties in this case, and the parties in other
pending negotiability matters, to determine whether the negotiability
issues contained in the petition for review remained in dispute between
the parties. We requested responses by January 19, 1990, and stated
that a copy of each party's response "must be served on the other
party(s)." Authority's Letter to the Union and the Agency at 2.
The Agency responded by letter dated January 19, 1990, stating that
Article 6, with an exception not relevant here, had been resolved in an
agreement between the parties concerning the impact and implementation
of the Agency's revised Standards of Conduct and General Counsel
Directive No. 6. The Agency submitted a copy of the agreement and
asserted that "the proposal regarding Article 6 has been settled and is
no longer in dispute between the parties." Agency's Letter to the
Authority at 2. In the absence of any assertion to the contrary by the
Union, we found, in 39 FLRA 27, that Article 6 "was no longer in
dispute." Id. at 29.
In its request for reconsideration, the Union asserts, as relevant
here, that the Agency's letter of January 19, 1990, "was never served on
either of NTEU's designated representatives in this matter . . . ."
Request for Reconsideration at 2. The Union also asserts that the local
Union chapter "was never served with the January 1990 letter." Union's
February 21, 1991, Letter to the Authority. The Union contends that it
did not challenge the statements in the Agency's letter because it was
not served with a copy of the letter and asserts that "(u)nder such
circumstances, our silence can hardly be construed as connoting
agreement with the (A)gency's assertions." Request for Reconsideration
at 4.
In its request for reconsideration, the Union asserts that it does
"not consider the matter pertaining to Article 6 as resolved." Id. The
Union argues that the parties "were not attempting to resolve the
negotiability matters" concerning Article 6 when they reached the impact
and implementation agreement and that there is nothing in that agreement
which indicates that the parties have resolved the dispute. Id.
(emphasis in original). Further, the Union asserts that because only an
exclusive representative may file a negotiability appeal, the exclusive
representative is "the only party that may voluntarily withdraw the
action before the adjudicative body." Id. at 3 (emphasis in original).
Finally, the Union argues that the Authority's "consideration of the
(A)gency's January 19, 1990 letter as a motion to dismiss . . . ." was
not consistent with section 2424.8 of the Authority's Regulations. Id.
at 4.
The Agency points out that its January 19, 1990, letter was in
response to the Authority's request. The Agency asserts that "the
Authority's rule with respect to additional submissions requested by the
Authority, 5 CFR 2424.8, does not require formal service of such a
submission on the other parties." Agency's February 20, 1991, Letter to
the Authority at 2. Further, the Agency claims that it sent a copy of
the letter to the Union's representative and "nowhere in its request for
reconsideration does the Union claim it did not receive a copy of the
Department's January 19, 1990, letter." Id. The Agency also asserts
that even if the Union had no knowledge of the January 19, 1990, letter,
the Union did know about the September 21, 1989, agreement and that "a
comparison of the language of the agreement with that of the proposals
then in dispute clearly shows that the issues raised by the proposals
have been resolved by this agreement." Agency's March 5, 1991, Letter to
the Authority.
On March 15, 1991, the Authority directed the Agency to file with the
Authority by March 29, 1991, proof of service of the January 19, 1990,
letter. In response, the Agency submitted a declaration from a former
Agency attorney asserting that she "prepared a letter dated January 19,
1990, indicating the Agency's position that certain proposals contained
in Article 6 had been resolved." Agency's March 28, 1991, Declaration at
1. The attorney further stated that she "either mailed, by regular
mail, or directed one of the secretaries in the Agency's Office of
General Counsel . . . to mail, by regular mail, this letter to . . .
(the) Assistant Director of Negotiations for the (Union)." Id. at 1-2.
The Authority's Regulations provide that any document filed with the
Authority must be served on "all counsel of record or other designated
representative(s) of parties(.)" 5 C.F.R. Section 2429.27(a). Service
must be made by certified mail or in person. 5 C.F.R. Section 2429.27(
b). A signed and dated statement of service which shows that proper
service has been made must be submitted with all documents which are
filed with the Authority. 5 C.F.R. Section 2429(c). The declaration
furnished by the Agency does not meet the Authority's requirements for
proof of service. See U.S. Department of the Army, Headquarters, XVIII
Airborne Corps, Fort Bragg, North Carolina and American Federation of
Government Employees, Local 1770, 37 FLRA 877, 879 (1990).
As the Agency has failed to establish that its letter of January 19,
1990, was served on the Union in accordance with our Regulations, our
consideration of that letter in 39 FLRA 27 was improper. Accordingly,
we conclude that extraordinary circumstances exist, and we grant the
Union's request for reconsideration of Article 6. We note that to the
extent a dispute exists between the parties concerning the duty to
bargain on Article 6, that issue may be raised in other appropriate
proceedings, such as unfair labor practice procedures under section 7118
of the Statute. See American Federation of Government Employees,
AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th
Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA
302, 306 n.6 (1984). See also National Association of Government
Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical
Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).
B. Articles 28 and 29
In its request for reconsideration, the Union pointed out that, in 39
FLRA 27, the Authority did not address the negotiability of Articles 28
and 29 of the parties' negotiated agreement. The record indicates that
the Union appealed the Agency head's allegation that Articles 28 and 29
were nonnegotiable. Our failure to address those two articles was an
oversight. Accordingly, we grant the Union's request for
reconsideration as to Articles 28 and 29.
Section 1
The Office will approve or disapprove an employee's written
request to engage in outside employment as soon as possible but
ordinarily not later than fourteen (14) days from receipt of the
employee's fully completed request. Section 2 A. In making this
decision, the Office will utilize solely the standards set forth
in the IRS Rules of Conduct (Document 7098), rules 220-229.2, as
amended from time to time. B. In the application and
interpretation of the outside employment provisions of the IRS
Rules of Conduct, which will be based on the individual facts and
circumstances involved, employees may engage in outside
employment, with the exception of those activities listed under
part 224 (Prohibited Activities), so long as they comply with any
applicable procedural rule regarding requesting approval of the
outside employment and such outside employment will not: 1.
result in a conflict of interest or the appearance of a conflict
of interest with official duties and responsibilities; or 2.
bring discredit upon or lower public confidence in the Office; or
3. interfere with the efficient performance of duties or
availability for duty. Section 3 The Office will include a
statement of its reasons for disapproving any such request.
Employee grievances concerning the Office's disapproval must be
filed within fourteen (14) days of receipt by the employee
directly at the last step of the employee grievance procedure, all
other intervening steps having been waived. Any such grievance
which is not resolved within the time limits set forth for the
last step may be appealed to arbitration in accordance with
applicable provisions of this Agreement. Section 4 A. An attorney
who has been granted approval for the outside practice of law will
be subject to an annual reporting requirement, the purpose of
which is to aid in the prevention of conflicts between such
outside (practice) and the tax law enforcement mission of the
Office, and to determine whether the nature of such outside
practice has changed since the time initial approval was granted.
B. Any revocation of approval resulting from information
contained in the annual report will be subject to the provisions
of section 3, above, relating to initial disapprovals. (Only the
underlined portions are in dispute.) A. Positions of the Parties
1. The Agency
The Agency argues that Article 6, Section 2(A) conflicts with an
Agency regulation, Treasury's General Counsel Directive No. 6 (GC-6),
for which there is a compelling need within the meaning of section
2424.11 of the Authority's Rules and Regulations. Statement of Position
at 6. The Agency asserts that there is a compelling need for GC-6
because it is "essential as it precludes a conflict of interest or the
appearance of a conflict of interest between a Legal Division attorney's
obligations to his or her client, the Department." Id. (emphasis in
original). According to the Agency, the Legal Division is one of
Treasury's "primary national subdivisions and the Internal Revenue
Service is another." Id. The Agency explains that the Legal Division
includes attorneys in "all offices and bureaus of the Treasury
Department, including the Internal Revenue Service, . . . (and) (t)he
Legal Division has its own Directives and personnel policies and
procedures." Id. at 7 (emphasis in original). Legal Division attorneys,
according to the Agency, report to the Division's General Counsel and
work for the entire Treasury Department, "not just the bureau where they
are located." Id.
The Agency asserts that "there are (sic) a wide range of economic and
financial interests affected by the operations of the Treasury
Departmentt." Id. at 8. Consequently, the Agency argues that "there is
a high probability that an adverse interest could arise from any outside
practice of law or even outside employment by a Treasury attorney." Id.
The Agency asserts that Article 6, which utilizes the IRS' Rules of
Conduct as a standard, is "far too permissive and ignores the Legal
Division's mission which is to provide legal services to the entire
Department, not just to one bureau or activity thereof." Id. As an
example, the Agency asserts that "(u)nder such a standard, an IRS
attorney could provide legal services to a bank, undergoing examination
by another of the Department's bureaus, the Office of the Comptroller of
the Currency." Id. (footnote omitted). The Agency describes GC-6 as
"prohibit(ing) a conflict of interest or the appearance of a conflict of
interest with a Treasury attorney's obligations to his or her client,
the Department." Id. at 9. Accordingly, the Agency asserts that GC-6
"is essential, as opposed to desirable, to the accomplishment of the
mission and the execution of the functions of the Legal Division in a
manner which is consistent with the requirements of an effective and
efficient government." Id. at 9-10 (footnote omitted).
Additionally, the Agency asserts that the standard in Article 6,
Section 2.B.2, conflicts with 5 C.F.R. Section 735.201a(f). Id. at 8
n.2. The Agency also points out that Government attorneys are subject
to "the Rules of Professional Conduct and Codes of Professional
Responsibility adopted by attorney licensing authorities, which are
modeled after the American Bar Association (ABA) Model Code of
Professional Responsibility (1982) and/or ABA Model Rules of
Professional Conduct (1983)." Id. at 8.
The Agency argues further that, to the extent that Article 6
delegates the right to make determinations on employees' requests for
outside employment to the Office of Chief Counsel, IRS, it violates
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
2. The Union
The Union disputes the Agency's compelling need argument by asserting
that "the attorneys employed at Chief Counsel are employees of the
Internal Revenue Service." Reply Brief at 4. According to the Union,
"the bureaus of the Treasury Department have separate counsel entities
to provide representation of the bureau." Id. The Union asserts that
prior to the negotiations which resulted in this dispute, the IRS
allowed its attorneys to engage in outside legal employment under an
Office of Chief Counsel manual directive, (30)4(13)0. According to the
Union, this directive requires that requests for outside employment meet
the requirements of the Department of the Treasury Minimum Standards of
Conduct, 31 C.F.R. Section 0.735-38. Id. at 5 and Union's Exhibit A.
In negotiations, the Union asserts, the parties agreed that the General
Counsel directive would not apply to bargaining unit employees.
Additionally, the Union asserts that under Article 6 "(t)he employer
is free to deny a request if a conflict is perceived." Id. at 5. The
Union also notes that an employee is "not free to practice law until the
decision is rendered." Id. In response to the Agency's argument that
portions of Article 6 constitute a delegation of authority to the Chief
Counsel to act on outside employment, the Union asserts that the
decision to grant or deny an outside employment request is made by an
employee's Division Director without involvement by the General Counsel.
Concerning Section 3 of the provision, the Union asserts that the
Agency is "concerned with having to put the reasons for a disapproval in
writing, rather than the fact of disapproval." Id. at 6. The Union
argues that this requirement is a negotiable procedure under section
7106(b)(2) of the Statute and, therefore, "the Department's disapproval
constitutes an inappropriate interference in the parties(') bargaining
relationship." Id.
B. Analysis
1. The Agency Has Not Established that Article 6 Conflicts with
Agency Regulation GC-6
The Agency argues that Article 6 "conflicts with General Counsel
Directive No. 6 (GC-6)(.)" Statement of Position at 6. According to the
Agency, the standard in Article 6, which "would permit outside
employment, including the practice of law, as long as it did not
conflict with the IRS' Rules of Conduct and with the 'tax law
enforcement mission' of the Office . . . ." is "far too permissive and
ignores the Legal Division's mission which is to provide legal services
to the entire Department(.)" Id. at 8.
In order to support a compelling need argument, an "agency must: (1)
identify a specific agency-wide regulation; (2) show that there is a
conflict between its regulation and the proposal; and (3) demonstrate
that its regulation is supported by a compelling need with reference to
the Authority's standards set forth in section 2424.11 of its
Regulations." American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21
FLRA 870, 880 (1986) (FDIC, Madison). An agency which fails to meet its
burden of demonstrating any of these elements will fail to sustain its
burden of demonstrating that a compelling need exists for its regulation
to bar negotiation on a proposal. See, for example, National Treasury
Employees Union and Department of Agriculture, Food and Nutrition
Service, 35 FLRA 254, 259 (1990) (agency failed to establish that
conflict exists between a proposal and its regulation); FDIC, Madison,
21 FLRA at 871.
The Agency cited GC-6 as a bar to Article 6. The Agency alleges, in
essence, that by permitting outside employment insofar as it is
consistent with the IRS Rules of Conduct and the tax law enforcement
mission of the Office, Article 6 conflicts with GC-6 because Article 6
would permit outside employment where GC-6 would not permit it.
However, the Agency not only has not indicated which portions of the IRS
Rules of Conduct conflict with which portions of GC-6, but the Agency
has also failed to provide us with a copy of IRS' Rules of Conduct to
substantiate its claim.
Consequently, the Agency has failed to meet its burden of
demonstrating that a conflict exists between Article 6 and the
regulation for which the Agency claims a compelling need. Accordingly,
we find that Article 6 is not barred by a regulation for which a
compelling need exists within the meaning of section 7117(a)(2) and
section 2424.11 of our Rules and Regulations.
2. Section 2 Does Not Conflict with a Government-wide Regulation
The Agency also argues that Article 6, Section 2.B.2. is contrary to
5 C.F.R. Section 735.201a(f), a Government-wide regulation. The
regulation provides, among other requirements, that agency regulations
governing the conduct and responsibilities of employees must proscribe
"any action, whether or not specifically prohibited by this subpart,
which might result in, or create the appearance of: . . . (f) (a)
ffecting adversely the confidence of the public in the integrity of the
Government." The Agency argues that the standard in Section 2.B.2., that
outside employment must not "bring discredit upon or lower public
confidence in the Office . . . ." is "far too permissive(.)" Statement
of Position at 8 n.2.
We find that the wording in Section 2.B.2. does not conflict with 5
C.F.R. Section 735.201a(f). 5 C.F.R. Section 735.201a(f) states that
agency regulations must proscribe conduct which might adversely affect
the public's confidence in Government. Section 2.B.2. contains similar
language, specifically stating that outside employment must not "lower
public confidence" in the Office of Chief Counsel. Moreover, we note
that Section 2.B.1. of Article 6, authorizes denial of a request for
outside employment when such employment will result in a conflict, or
apparent conflict, of interest with an employee's official, Governmental
duties and responsibilities. Therefore, we reject the Agency's argument
that Article 6 is contrary to 5 C.F.R. Section 735.201a(f).
We note also the Agency's point that "(o)utside employment for (F)
ederal employees is governed by certain criminal conflict of interest
statutes, see 18 U.S.C. Sections 201-224, as well as Executive Order
11222, and its implementing regulations, 5 C.F.R. 735.201-737.210."
Statement of Position at 7. While Article 6, Section 2, A. of the
provision states that in decisions regarding outside employment ". . .
the Office will utilize solely the standards set forth in the IRS Rules
of Conduct . . . (,)" we do not interpret that statement to mean that
such decisions may be made in violation of any provisions of governing
criminal conflict of interest statutes, Executive Order 11222, or its
implementing regulations.
Finally, we note the Agency's assertion that "attorney conduct which
may be permitted under applicable federal law may, nevertheless, be
proscribed under the ABA's professional code." Statement of Position at
8. The ABA is a private organization representing attorneys which,
among other things, develops "professional standards which serve as
models of the regulatory law governing the legal profession." American
Bar Association Codes at XI (1990). Although the Agency does not
specifically assert that Article 6 conflicts with the ABA Model Code of
Professional Responsibility, or a code developed by a particular
jurisdiction, we note that privately developed standards of professional
conduct are not Government-wide rules or regulations within the meaning
of section 7117(a)(1) of the Statute. Therefore, such codes are not a
basis for a finding that a proposal or provision is nonnegotiable. See
Veterans Administration, Leavenworth, Kansas and American Federation of
Government Employees, Local 85, 34 FLRA 898, 902 (1990) (code of
professional responsibility developed by National Academy of Arbitrators
is not a law, rule, or regulation within the meaning of section 7122(a)
on which exceptions to an arbitration award can be predicated).
3. Section 2 Does Not Directly Interfere with the Agency's Right to
Assign Work
The Agency argues that Article 6 is nonnegotiable to the extent that
it requires the IRS' Office of Chief Counsel (the Office) to take
certain actions concerning requests for outside employment. Article 6,
Section 2 provides that the Office will apply the IRS' Rules of Conduct
in deciding whether to grant permission for outside employment. Section
3 requires that the Office furnish an employee a statement of its
reasons for disapproving an outside employment request. The Agency
asserts that these sections violate management's right to assign work
under section 7106(a)(2)(B) of the Statute because they prescribe duties
that an organization within the Agency must perform.
We disagree with the Agency's assertion that the use of the term "the
Office" in Article 6, Sections 2 and 3 constitutes an assignment of
work. The Office of Chief Counsel is a party to thee collective
bargaining agreement in this case. In our view, "the Office," as used
in Sections 2 and 3, merely describes that portion of the Agency's
organization which encompasses the bargaining unit covered by the
disputed provisions. Use of the term "the Office" does not constitute
an assignment of work. We note that Sections 2 and 3 do not designate
which office or individual within the Office of Chief Counsel will make
determinations on outside employment requests or will prepare statements
disapproving requests. The Agency remains free to determine who will
perform these functions. Therefore, we find that the references to the
Office in Sections 2 and 3 do not render these portions of Article 6
nonnegotiable.
4. Section 4 is Negotiable
The Agency asserts that only the underlined portion of Section 4 is
in dispute. Statement of Position at 6. The disputed portion provides
that an attorney who has been granted approval for the outside practice
of law will be subject to an annual reporting requirement. The Agency
has not presented any reasons in support of its assertion that this
portion of Section 4 is nonnegotiable. Further, it is not otherwise
apparent that Section 4 is inconsistent with any law, rule, or
regulation. 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, 891
(D.C. Cir. 1982); American Federation of Government Employees, Local
3601 and U.S. Department of Health and Human Services, Public Health
Service Indian Hospital, Claremont, Oklahoma, 36 FLRA 224, 226 (1990).
A party failing to meet its burden acts at its peril. Accordingly, we
conclude that Section 4 is within the Agency's duty to bargain.
C. Conclusion
The Agency has failed to support its assertions that Article 6
conflicts with Agency regulation GC-6, that Section 2 is inconsistent
with 5 C.F.R. Section 735.201a(f) or conflicts with management's right
to assign work under section 7106(a)(2)(B), and that Section 4 is
inconsistent with law, rule, or regulation. As the Agency has not
established that Article 6 is nonnegotiable, and we are aware of no
basis for such a conclusion, we conclude that Article 6 is within the
Agency's duty to bargain.
Section 1
The Office will advise probationary employees of their progress
before the end of the tenth (10th) month of their probationary
period.
Section 2
When the office determines that a probationary employee is to
be terminated, the Office will, if sufficient probationary time
remains, give the affected employee fifteen (15) days notice of
termination or such notice as the remaining probationary period
permits.
Section 3
The Office will meet with an affected probationary employee
upon request and/or accept a written statement relating to the
termination, whether or not the employee is on the rolls. If the
employee elects both, the written state(ment) must be delivered to
the Office on or before the date of the meeting. If the affected
employee elects to request a meeting to submit a written
statement, the request for meeting or receipt of written statement
must be within fifteen (15) days of receipt of notice. If a
meeting is held, the employee may be accompanied by two (2)
representatives designated by the Union.
Section 4
The affected employee will be advised by the Office whether the
decision to terminate is sustained or rescinded after considering
the employee's written statement or oral statement made at the
meeting.
A. Positions of the Parties
The Agency contends that the disputed sections of Article 28 are
nonnegotiable because they violate applicable law, 5 U.S.C. Section
3321, and regulation, 5 C.F.R., Part 315, subpart H, concerning
termination of probationary employees. The Agency asserts that the
disputed sections would subject terminations of probationary employees
to arbitral review and would provide procedural protections for
probationary employees beyond those authorized by the Office of
Personnel Management (OPM). Based on American Federation of Government
Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air
Station, Oceana, Virginia, 30 FLRA 1105 (1988) (NAS, Oceana) and U.S.
Department of Justice, Immigration and Naturalization Service v. FLRA,
709 F.2d 724 (D.C. Cir. 1983) (INS), the Agency argues that granting
probationary employees additional procedural protections is inconsistent
with law and regulation.
The Union asserts that the parties reached a "side bar agreement,"
providing as follows:
The Union acknowledges that, under present statutory and case law,
probationary employees who are terminated for unsatisfactory
performance or conduct would not be entitled to reinstatement for
procedural errors in their termination, or for failure by the
Office to provide the procedural protections contained in Article
28, because such errors or failures do not amount to harmful
errors as contemplated by the Back Pay Act.
Reply Brief at 25. The Union asserts that the wording of the agreement
"makes it clear that the mere failure to follow the procedures
identified in this proposal does not entitle a probationary employee to
reinstatement." Id.
B. Analysis and Conclusions
In INS, the United States Court of Appeals for the District of
Columbia Circuit found that in the Civil Service Reform Act of 1978
(CSRA), "Congress expressly preserved an agency's discretion to remove
summarily a probationary employee". 709 F.2d at 725. Therefore, the
court noted, the CSRA affords probationary employees only minimal due
process. Id. at 729. See also Bremerton Metal Trades Council and Naval
Supply Center Puget Sound, 32 FLRA 643, 661 (1988). The court further
noted in INS, "Congress instructed OPM, not FLRA, to implement the
probationary program and to provide whatever procedural protections were
necessary for probationary employeess." 709 F.2d at 729. Relying on
INS, the Authority has determined that procedural protections for
probationary employeess cannot be established through collective
bargaining under the Statute. See, for example, National Treasury
Employees Union and Federal Deposit Insurance Corporation, Division of
Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA No. 70,
slip op. at 5 (1991) (FDIC); NAS, Oceana, 30 FLRA at 1127.
In our view, section 1 of Article 28 does not afford probationary
employees procedural protections beyond those established by OPM.
Initially, we note that section 1 does not expressly apply to the
Agency's termination of probationary employees. Instead, it requires
the Agency to advise all probationary employees of their progress prior
to the end of the tenth month of their probationary periods. Moreover,
nothing in the plain wording of section 1 would require the
reinstatement of a separated probationary employee under the parties'
grievance procedures in the event that employee had not timely received
the notice encompassed by section 1. In fact, the Union concedes, and
asserts that the parties have agreed, that "mere failure to follow the
procedures identified in this proposal does not entitle a probationary
employee to reinstatement." Reply Brief at 25. In these circumstances,
there is no basis for concluding that section 1 affords probationary
employees any procedural protections in the event that they are
terminated.
Furthermore, the progress reports required by section 1 do not
conflict with the applicable OPM regulation, Federal Personnel Manual
(FPM) Chapter 315, subchapter 8. Specifically, FPM Chapter 315,
subchapter 8-3a(5) provides that:
The supervisor of each employee serving a probationary period
must, no earlier than the beginning of the 9th month nor later
than the end of the 10th month of the period, submit through
supervisory channels a signed statement certifying either that the
employee's performance, conduct, and general traits of character
have been found satisfactory or that they have been found
unsatisfactory. Each certification must contain a positive
recommendation whether the employee should be retained beyond the
probationary period. This requirement must be observed regardless
of whether one or more performance ratings may be prepared and
submitted during the probationary period.
Considering the requirements of subchapter 8-3a(5), we find nothing
in section 1 that imposes any obligations on the Agency beyond those
prescribed by OPM. The regulation requires supervisors to recommend
either the retention or termination of a probationary employee during
the period between the ninth and tenth month of employment, and the
regulation does not bar management from furnishing the concerned
employee with a copy of the supervisory recommendation. In addition,
subchapter 8-3a(5) expressly contemplates the preparation of "one or
more performance ratings" during the probationary period. As section 1
of Article 28 only obligates the Agency to provide a probationary
employee with a progress report before the end of the tenth month of
service, it does not conflict with applicable regulation and does not
violate applicable law by affording probationary employees protections
in addition to those provided by OPM. Accordingly, section 1 is
negotiable.
In our view, sections 2 through 4 of Article 28 afford probationary
employees procedural protections beyond those provided by OPM. The OPM
regulations at 5 C.F.R. Section 315.804 require only that a probationary
employee who is being terminated for unsatisfactory performance or
conduct be notified in writing as to why he or she is being terminated
and the effective date of the action. Under the procedures provided by
OPM, the employee has no right of reply. FPM Chapter 315, subchapter
8-4a(3). OPM further provides:
Although it is not required, it is good personnel practice to
furnish every separated probationer with enough factual
information (as distinguished from conclusions) about his/her
performance or conduct to make the agency's basis for the action
clear. One way to accomplish this is to have an appropriate
supervisory or personnel official discuss the basis for the
agency's action with the employee.
FPM Chapter 315, subchapter 8-4a(4).
Sections 2 through 4 require that the Agency undertake certain
actions prior to terminating a probationary employee. Those actions
include: (1) providing the employee with 15 days' advance notice of a
decision to terminate him or her, if there is sufficient time remaining
in the probationary period; (2) meeting with the probationary employee
and/or accepting a written statement from the employee relating to the
termination, regardless of whether the employee is still employed by the
Agency; and (3) considering the probationary employee's oral or written
statements and advising the employee whether the decision to terminate
is sustained or rescinded. In prescribing such requirements, sections 2
through 4 establish procedural protections beyond those provided by OPM.
See National Treasury Employees Union and U.S. Department of the
Treasury, Internal Revenue Service, 38 FLRA 1366, 1372 (1991).
For example, the OPM regulations at FPM Chapter 315, subchapter
8-4a(3) require only that a notice of termination be in writing and
include certain specified information. Under section 2, the Agency
would be obligated to provide the affected employee with 15 days'
advance notice, if there were sufficient time remaining in the
probationary period to do so. In addition, sections 3 and 4 of Article
28 provide a probationary employee with an opportunity to respond to a
termination notice and require Agency consideration of that response.
The OPM-established procedures make no provision for a probationary
employee to offer a defense or explanation as part of the termination
process. In this regard, FPM Chapter 315, subchapter 8-4a(4) requires
an agency only to furnish a probationary employee enough factual
information to make the basis of the agency's action clear but does not
require allowing the employee an opportunity to offer a reply or
defense. And, under subchapter 8-4a(3) of FPM Chapter 315, "(t)he
employee is not given a right of reply."
In sum, we find that section 1 of Article 28 is negotiable. However,
because sections 2 through 4 would establish procedural protections
beyond those provided by OPM, those sections are inconsistent with
Federal law and Government-wide regulation. Consequently, sections 2
through 4 are nonnegotiable under section 7117(a)(1) of the Statute.
See FDIC, slip op. at 6.
When a supervisor's review leads to the conclusion that an
employee's work is not of an acceptable level of competence and
that a within-grade would be denied, the employee will be provided
with the following in writing within a reasonable period of time,
but not less than sixty (60) days, before the employee will have
completed the required waiting period. 1. notice of the critical
element(s) and standard(s) in which the employee's work is not
acceptable; 2. advice as to what the employee must do to bring
performance up to the acceptble level; 3. a statement that the
employee's performance may be determined as being at an
unacceptable level unless improvement to an overall acceptable
level is shown; and 4. a statement that the employee's
within-grade will be withheld unless the employee's work during
the entire waiting period is at an acceptable level of competence.
A. Positions of the Parties
The Agency asserts that Article 29, section 2(B) mandates that an
employee receive notice, not less than 60 days prior to the end of the
waiting period for a within-grade increase, that his/her performance is
not of an acceptable level of competence and that a within-grade
increase will be withheld. In the Agency's view, "(t)o the extent that
this provision would require that an employee who fails to receive the
notice be given his/her within-grade increase, it violates
Government-wide regulation." Statement of Position at 40. The Agency
argues that FPM Chapter 531, subchapter 4-9b provides that the failure
to notify an employee 60 days in advance of the waiting period that his
or her performance may not be of an acceptable level of competence may
not delay the requirement that a determination be made at the end of the
waiting period.
The Union asserts that the parties agreed to the following:
The Union acknowledges that under present statutory and case law,
employees who are denied within grade increases would not be
entitled to automatic receipt of within-grade increases solely
because of the failure of the Office to provide them with the
sixty (60) day advance notice contemplated in Article 29, because
such failures do not amount to harmful errors as contemplated by
the Back Pay Act.
Reply Brief at 25-26.
B. Analysis and Conclusions
The dispute over Article 29 centers on the provision's requirement
that, no later than 60 days prior to the end of a waiting period,
employees be notified by the Agency of its intent to withhold
within-grade increases (WGIs). The Agency contends that failure to
provide notice within the prescribed time frame would result in some
employees receiving their WGIs although performing at less than an
acceptable level of competence. As the Agency interprets the provision,
it would conflict with FPM Chapter 531, subchapter 4-9b, which requires
that an acceptable level of competence determination be made at the end
of the waiting period regardless of whether the prescribed 60-day
advance notice is timely.
Nothing in the provision, as plainly worded, requires the award of a
WGI if the notice of deficient performance is not provided within 60
days of the end of the waiting period. Indeed, the Union denies that
failure to comply with the provision's time limit would result in an
employee's receiving a WGI without regard to his or her actual level of
performance. The Union acknowledges, and asserts that the parties have
agreed, that such a result would conflict with "present statutory and
case law(.)" Reply Brief at 25. As the Union's statement is not
inconsistent with the provision's plain wording, we adopt it for the
purposes of this decision. In adopting the Union's statement, we note
particularly that the provision is silent concerning the consequences of
noncompliance. In addition, the provision parallels the applicable
regulation, which also requires notice to an employee "at least 60 days
in advance of the date on which he will complete his waiting period,"
but prescribes no penalty for a failure to deliver the notice in a
timely manner. See FPM Chapter 531, subchapter 4-9b.
We find, based on the foregoing, that Article 29, section 2(B) does
not conflict with FPM Chapter 531, subchapter 4-9b. Accordingly, the
provision is negotiable.
The Agency shall rescind its disapproval of Article 6, section 1 of
Article 28, and the disputed part of Article 29, which were bargained
over and agreed to by the parties at the local level. /*/ The petition
for review as it relates to sections 2 through 4 of Article 28 is
dismissed.
(*) In finding Article 6, Article 28, section 1, and the disputed
portion of Article 29 to be within the duty to bargain, we make no
judgment as to their merits.
40 FLRA 839
40 FLRA NO. 66
Department of Defense Dependents Schools and Overseas Education
Association (Flannagan, Arbitrator), Case No. 0-AR-1996 (Decided May 9,
1991)
7122(a)
ARBITRATION EXCEPTION
NONFACT
FAILURE TO DRAW ESSENCE
VIOLATION OF LAW
OVERSEAS TEACHERS PAY ACT
20 U.S.C. 901-907
SETTLEMENT AGREEMENT
The Arbitrator denied a grievance concerning whether certain teachers
who left and then returned to teaching positions at the Agency prior to
August 1, 1986, were entitled to receive full credit for their prior
Agency experience. The Authority denied the exceptions, finding that
the Union had not established that the award was based on a nonfact or
that it did not draw its essence from the agreement.
The Authority also concluded that the Union had not established that
the award was contrary to the Overseas Teachers Pay Act, rejecting the
Union's argument that the Agency and the Union could not have entered
into an agreement concerning the amount of credit for prior experience
to give these teachers. Also rejected was the assertion that it did not
waive these teachers' rights under the Act because there is no clear and
unmistakable expression of such intent. The Authority stated that in
their view, the Union is barred from litigating the issue of the proper
experience credit to grant because the Memorandum of Understanding
constituted a settlement agreement that clearly and unmistakably waives
the right of the Union to pursue the matter of credit for prior
experience of these teachers. In order to attack a settlement agreement
arising from a federal civilian personnel action, it must be shown that
the agreement was tainted with invalidity, either by fraud or mutual
mistake. In this case, the Union makes no such showing.
Case No. 0-AR-1996
U.S. DEPARTMENT OF DEFENSE, DEPENDENTS SCHOOLS
(Agency)
OVERSEAS EDUCATION ASSOCIATION
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on exceptions to an award of
Arbitrator Francis W. Flannagan 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 exceptions.
The Arbitrator denied a grievance concerning whether certain teachers
who left and then returned to teaching positions at the Agency prior to
August 1, 1986, were entitled to receive full credit for their prior
Agency experience. For the following reasons, we conclude that the
Union has not established that the Arbitrator's award is deficient.
Accordingly, we will deny the exceptions.
The Agency (DODDS) operates over 250 schools in foreign countries for
the education of minor dependents of civilian and military personnel.
The Union represents certain of the teachers employed by the Agency.
In June 1986 the Union filed a grievance over the Agency's treatment
of employees who had previously been employed as teachers by the Agency
and then had been reemployed or reassigned to teaching positions after
leaving the Agency or working in a non-teaching capacity within the
Agency. The Agency regarded those reappointed teachers as new employees
and denied them full credit for their prior teaching experience when
determining the pay level at which they would be placed. In that
grievance, the Union argued that, as 20 U.S.C. Section 902 provides that
the wage rates of DODDS teachers are to be equivalent to rates for
similar positions in the United States, the Agency's practice did not,
as required by law, conform to the pay practices in the school
jurisdictions that formed the basis for the establishment of the pay and
other terms and conditions of employment of the Agency's teachers. /*/
The grievance was settled in June 1987. The settlement was reduced
to writing in a Memorandum of Understanding (MOU) and provided:
Management and the (Union) at the National level agree that all
pending grievances involving the issue of step placement upon
reappointment or other return of an employee to the Public Law
86-91 (20 USC 901-907) personnel and pay system shall be finally
and fully resolved and settled by the issuance of the following
policy: Upon reappointment to a 20 USC 901-907 position, all
prior service in a 20 USC 901-907 professional position (does not
include clerical and paraprofessional positions) will be credited
for pay purposes up to the maximum step authorized in the
appropriate salary schedule regardless of any established maximum
creditable years of service for appointment or reappointment.
Should the accumulated years of creditable service equal or exceed
the established maximum step on the appropriate salary schedule,
no other experience can be credited for pay. This policy is
retroactively effective for reappointments on and after August 1,
1986, only for those employees who are employed by DODDS on June
1, 1987. Notice of this policy will be posted in each school.
Current employees who believe that they are eligible for a pay
change based upon this policy change must notify their principal
prior to November 1, 1987, or forever lose any entitlement to a
retroactive pay change.
Award at 4 (quoting MOU; emphasis in original).
In July 1987, the Agency's regional directors were notified, by
memorandum, of the policy enunciated in the MOU. The memo included two
examples of step placement. One example specifically dealt with
teachers returning to teaching positions prior to August 1, 1986. It
provided:
EXAMPLE 2
SITUATION: An assistant principal employed under the GS pay
system by DODDS applies for and is appointed to a position in the
TP pay system in August 1985, at step 11. The employee has 5
years of non-DODDS teaching experiencee, 9 years of prior DODDS
teaching experience and 2 years of experience as an assistant
principal. The employee timely applies for retroactive benefit.
STEP PLACEMENT: Because the appointment was effective and step
placement determination made in August 1985 (i.e., prior to August
1, 1986), the employee is not eligible for the adjustment, either
retroactively or prospectively. As such, the step 11 placement is
unchanged.
Id. at 5 (quoting memo).
A copy of the memorandum was provided to the president of the Union.
The letter transmitting the memorandum to the Union stated, in part:
"If you have any questions or comments please let me know." Id. No
questions or comments were immediately forthcoming.
After the grievance was settled, the Agency requested the
organization in the Department of Defense (the Wage Fixing Authority)
that surveys the pay practices of stateside schools for purposes of the
Defense Department Overseas Teachers Pay and Personnel Practices Act
(the Overseas Teachers Pay Act or the Act), 20 U.S.C. Sections 901-907,
to conduct the required survey of salaries in U.S. schools. Because the
Wage Fixing Authority did not have time immediately to conduct the
survey, the Union conducted its own survey. In 1990, the Wage Fixing
Authority conducted its survey.
On June 26, 1989, the Union filed the grievance involved in this
case. In its grievance the Union contended that the Agency was
"violating laws, rules, and regulations by not giving all returning
teachers full credit for previous DODDS experience, for step placement
purposes(,)" by virtue of the Agency's failure to give full credit for
prior Agency experience to teachers who had returned before August 1,
1986. Id. The Agency denied the grievance because, in the Agency's
view, the issues presented had been finally and fully resolved in the
MOU. The Agency asserted that the MOU "is clear and specific with
regard to the application of the revised step placement policy. It
specifically defined who would be effected (sic) . . . . Upon entering
(into) the settlement agreement, the (Union) relinquished any right it
might have otherwise had to pursue the step placement issue for those
employees who were reappointed to DODDS prior to August 1, 1986." Id.
at 6 (quoting Agency's response to grievance). The grievance was not
resolved and was submitted to arbitration.
The parties could not agree upon the wording of the issue to be
decided. The Arbitrator framed the issue as: "Was it proper for DODDS
to refuse to grant DODDS teachers returning prior to August 1, 1986 full
credit for prior DODDS experience? If not, what is the remedy?" Id. at
1.
Before the Arbitrator, the Union argued that the settlement of the
earlier grievance did not resolve the issue presented in this case. The
Union asserted that different issues were presented by the two
grievances and that teachers returning prior to August 1, 1986, who did
not have grievances pending when the earlier grievance was settled were
not barred from raising the issue in the current grievance. The Union
further contended that it did not waive its right to demand full credit
for previous experience for teachers returning prior to August 1, 1986,
and that any such waiver would be void. The Union also maintained that
the Agency's refusal to grant full credit for prior experience violated
20 U.S.C. Sections 901-907. Finally, the Union claimed that the survey
of the Wage Fixing Authority was flawed.
The Arbitrator concluded that the MOU was still in full force and
effect when the grievance was filed in this case. The Arbitrator noted
that the MOU provided:
1) All prior service would be credited up to the maximum step
authorized. 2) The policy does not apply to teachers coming into
the system prior to August 1, 1986 as it is retroactive only to
such date. 3) Any employee believing he or she was entitled to a
pay change under the new policy as set forth in (the MOU) (was
required to) notify their (sic) principal prior to November 1,
1987, "or forever lose any entitlement to a retroactive pay
change."
Id. at 8-9 (quoting MOU). Accordingly, the Arbitrator rejected the
Union's arguments regarding the MOU's lack of applicability to the
grievants in this case and found that the "plain language of the (MOU)
shows it does not apply to teachers returning prior to August 1, 1986."
Id. at 10.
The Arbitrator specifically rejected the Union's argument that at the
time of the earlier grievance settlement, it was understood that a
survey would be conducted regarding teachers returning prior to August
1, 1986, and upon its completion the Union reserved the right to raise
the issue of experience credit for those teachers. The Arbitrator
concluded that he could not "construe plain and unambiguous language
except from the language used. If such was a part of the agreement it
should have been incorporated into the written (MOU)." Id. The
Arbitrator concluded that the issue presented by the grievance in this
case "was determined by the settlement agreement of (the earlier)
grievance . . . and that such agreement is binding on both parties(.)"
Id. at 10-11.
In conclusion, the Arbitrator stated that he had carefully considered
the Union's other arguments and he rejected them. Accordingly, the
Arbitrator found that the Agency had properly refused to grant full
credit to DODDS teachers who returned to DODDS teaching positions prior
to August 1, 1986, and he, therefore, denied the grievance.
A. The Union
The Union contends that the Arbitrator's award is deficient because
it is based on a nonfact and is contrary to law. The Union maintains
that the Arbitrator "has misread and misinterpreted the wording of the
Memorandum of Understanding (MOU) . . . as applying to a category of
teachers not intended by the parties . . . . By doing so the
(Arbitrator has created the nonfact upon which his decision is based."
Exceptions at 1-2.
The Union argues that at the time the MOU was signed, "there remained
an unresolved question as to how much credit for previous experience
should be given to teachers who returned prior to August 1, 1986," and
that the MOU only applies to those teachers reappointed on or after
August 1, 1986. Id. at 2. The Union asserts that the evidence offered
by the parties at the arbitration hearing supports the clear and
unambiguous language of the MOU that the issue of credit for teachers
who returned prior to August 1, 1986, was unresolved. The Union claims
that it performed its own survey of pay practices upon the specific
understanding that the information obtained would be used in resolving
this issue that the parties had specifically reserved for future
resolution. The Union further argues that the fact that the Agency also
performed a study "prove(s) that the issue was not settled and that
there was indeed an agreement to conduct a survey and to use that data
to resolved (sic) the remaining dispute." Id. at 5. Accordingly, the
Union argues that the Arbitrator based his award on a nonfact in
concluding that the MOU resolved the issue of the credit to be given to
teachers who returned to the Agency prior to August 1986.
The Union also contends that the Arbitrator's award is contrary to 20
U.S.C. Section 902. The Union maintains that, as the Agency's "teachers
are entitled by law to be paid equal to 'stateside teachers in districts
with a (sic) populations over 100,000(,)' . . . (I)f prior to 1986
teachers in large stateside schools were being given full credit for
previous experience when they returned to teach again at the same school
system, then DODDS is in violation of the Act for not also giving
teachers returning prior to 1986 full credit for prior experience." Id.
at 6.
The Union asserts that compensation of DODDS teachers has
consistently been determined through surveys of large U.S. school
systems and that no survey was performed to determine how much credit
should be given to the teachers involved in this case. The Union argues
that for the Agency "to enter into an agreement on pay without knowing
whether they were giving DODDS teachers pay equal to teachers in large
stateside schools would be for DODDS to knowingly ignore the mandate of
the Act. For this reason DODDS and (the Union) could not have entered
into an agreement concerning the amount of credit for prior experience
to give former DODDS teachers who returned . . . prior to 1986. When
the (A)rbitrator ruled that the MOU . . . applied to (such) teachers . .
. the (A)rbitrator's ruling was contrary to the Act." Id. at 7.
The Union argues further that it "did not wave (sic) the statutory
rights of former DODDS teachers who returned to serve DODDS prior to
August 1, 1986." Id. at 8. The Union asserts that, as it did not
clearly and unmistakably waive these teachers' right "to be paid equal
to teachers in large stateside schools(,)" the Arbitrator "cannot waive
(that) statutory right." Id. at 7.
Finally, the Union contends that the Arbitrator's decision is
contrary to case law interpreting and applying the Act. Specifically,
the Union maintains that the decision and order in March v. U.S., 506
F.2d 1306 (D.C. Cir. 1974), order on remand, Civil Action No. 3437-70
(D.D.C. June 27, 1975) (March v. U.S.), held that under the Act, DODDS
teachers are entitled to be credited for teaching experience to the same
extent as teachers in large stateside schools.
B. The Agency
The Agency contends that the Arbitrator's award is correct and that
the Union "is merely trying to relitigate the case before the
Authority." Opposition at 2. The Agency asserts that the Union's
arguments constitute nothing more than disagreement with the
Arbitrator's findings of fact and his reasoning and conclusions and, as
such, provide no basis for finding the award deficient.
The Agency argues that the Union has not established that the
Arbitrator's award is contrary to law. In this regard, the Agency
asserts that the Union "has presented no evidence to support its
hypothesis" that "if prior to 1986, teachers from (specified stateside
school) districts were given full credit for previous experience when
they returned to teach at the same school system, then DODDS would be in
violation of the Act for not doing the same." Id. (emphasis in
original). The Agency also contends that even assuming that it is a
violation of 20 U.S.C. Section 902 to deny the teachers full credit for
prior experience, the Union failed to raise the matter in a timely
fashion.
We will find an award deficient on the ground that it is based on a
nonfact when it is demonstrated that the central fact underlying the
award is clearly erroneous, but for which a different result would have
been reached. See, for example, Department of the Navy, Naval Surface
Warfare Center, Dahlgren, Virginia and American Federation of Government
Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an award
to be found deficient on this ground, it must be established that the
alleged "nonfact" was the central fact underlying the award, was clearly
erroneous, and that but for the arbitrator's erroneous finding, the
arbitrator would have reached a different result. Id.
The Union asserts that the arbitrator based his award on the nonfact
that the MOU applied "to a category of teachers not intended by the
parties(.)" Exceptions at 1. However, we find that this argument is
that the award does not draw its essence from the agreement, not that it
is based on a nonfact. See Veterans Administration Medical Center, Palo
Alto, California and American Federation of Government Employees, Local
2110, 36 FLRA 98, 103-05 (1990) (contention that the award erroneously
found that employees were entitled to overtime is not an allegation of
nonfact, but that the award is contrary to law). In order for an award
to be found deficient because it fails to draw its essence from the
agreement, it must be shown 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. See, for
example, U.S. Department of the Treasury, Internal Revenue Service,
Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA
453, 462 (1990).
The Union has not demonstrated that the award fails to draw its
essence from the parties' agreement under any of these tests. We
conclude that the Union's argument constitutes mere disagreement with
the Arbitrator's evaluation of the evidence and interpretation of the
MOU and is an attempt to relitigate the merits of the case before the
Authority. Such disagreement provides no basis upon which to find the
Arbitrator's award deficient under the Statute. See, for example,
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88
(1988) (that the agency or the Authority may have interpreted the
agreement differently provides no basis for finding the award deficient;
the question of the interpretation of the collective bargaining
agreement was a question solely for the arbitrator because it was the
arbitrator's construction of the agreement for which the parties
bargained).
We also conclude that the Union fails to establish that the award is
contrary to the Overseas Teachers Pay Act, 20 U.S.C. Sections 901-907.
We reject the Union's argument that the Agency and the Union could
not have entered into an agreement concerning the amount of credit for
prior experience to give these teachers. As with the Union's previous
arguments, the argument that the parties could not have entered into
such an MOU constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of the MOU and provides no
basis for finding the award deficient.
We also reject the Union's assertion that it did not waive these
teachers' rights under the Act because there is no clear and
unmistakable expression of such intent. In this case, the Arbitrator
specifically found that the "plain and unambiguous language" of the MOU
showed that it did not apply to teachers returning prior to August 1,
1986, and that the MOU determined the issue presented by the grievance
in this case. For the reasons stated by the Arbitrator, we find that
the MOU constitutes a settlement agreement that clearly and unmistakably
waives the right of the Union to pursue the matter of credit for prior
experience of these teachers. See U.S. Department of Housing and Urban
Development, Boston, Massachusetts and American Federation of Government
Employees, Local 3258, 38 FLRA 1542, 1551 (1991) (rejecting the union's
argument that the agreement did not waive its right to bargain as found
by the arbitrator).
In our view, the Union is barred from litigating the issue of the
proper experience credit to grant these teachers under the Act. As
noted by the U.S. Court of Appeals for the Federal Circuit, "(t)hose who
employ the judicial appellate process to attack a settlement through
which controversy has been sent to rest bear a properly heavy burden."
Asberry v. U.S. Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982).
In order to attack a settlement agreement arising from a federal
civilian personnel action, it must be shown that the agreement was
tainted with invalidity, either by fraud or mutual mistake. Id. In
Asberry, the court found no invalidity and determined that the case
involved a typical settlement situation in which each party gives up
something in order to terminate the dispute without further litigation.
Id. at 1381-82. Having found that the employee voluntarily accepted the
settlement and its benefits, the court held that the employee was
"equitably estopped to attack it." Id. at 1382. In this case, the Union
makes no showing of fraud or mutual mistake. Because the Union has
failed to establish that the Arbitrator's interpretation and application
of the MOU is deficient or that the MOU is otherwise invalid, we find
that the Union is barred from attacking it.
Furthermore, we find that, in any event, the Union fails to establish
that the provisions of the MOU are contrary to the Act. We agree with
the Agency that the Union in its exception is merely speculating as to
the practices of relevant stateside school districts. The Union has not
introduced any probative evidence to support the amount of previous
experience that was being credited by large stateside schools prior to
August 1986. In such circumstances, the Union has not shown that the
Arbitrator's enforcement of the parties' MOU as determinative of the
grievance is contrary to the Act. Overseas Education Association and
Department of Defense Dependents Schools, Mediterranean Region, 16 FLRA
276, 278 (1984) (citing March v. U.S., the Authority held that in the
absence of substantial proof concerning the prevailing practice in large
stateside schools, the agency failed to show that the arbitrator's
placement of the grievant for step purposes was deficient).
Accordingly, we will deny the exceptions.
The Union's exceptions are denied.
(*) 5 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(.)"
40 FLRA 831
40 FLRA NO. 65
AFGE, Local 644 and Dept. of Labor, Occupational Safety and Health
Administration, Norfolk, Virginia, Case No. 0-NG-1854 (Decided May 6,
1991)
7105(a)(2)(E)
7106(b)(1)
7106(b)(2)
7106(b)(3)
NEGOTIABILITY DETERMINATION
USE OF BEEPERS AND PAGING DEVICES
METHODS AND MEANS
NEGOTIABLE PROCEDURES
APPROPRIATE ARRANGEMENTS
At issue were two proposals. The first provided that the use of
beepers will be on a voluntary basis only. The second provided that if
the employee chooses to utilize the paging device, the requirement for
calling in, unless paged, will be removed. The Authority found that the
proposals are outside the duty to bargain because they directly
interfere with the Agency's right to determine the methods and means of
performing work under section 7106(b)(1), concluding that the Agency had
established that there is a direct and integral relationship between the
use of beepers and the accomplishment of the Agency's mission and that
the proposals directly interfere with the Agency's mission. The
Authority further found that the proposals constitute neither negotiable
procedures nor appropriate arrangements under sections 7106(b)(2) and
7106(b)(3).
CASE NO. 0-NG-1854
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 644
(Union)
U.S. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, NORFOLK, VIRGINIA
(Agency)
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 subsections of a proposal relating to the
Agency's implementation of a policy providing for the mandatory use of
electronic paging devices (beepers) by bargaining unit employees. For
the following reasons, we find that the disputed portions of the Union's
proposal are nonnegotiable. Accordingly, we will dismiss the petition
for review.
2. The use of beepers will be on a voluntary basis only.
3. If the employee chooses to utilize the paging device, the
requirement for calling in, unless paged, will be removed.
A. The Agency
The Agency contends that subsections 2 and 3 are nonnegotiable
because they directly interfere with management's right to determine the
technology, methods, and means used in performing the Agency's work
under section 7106(b)(1) of the Statute. The Agency also argues that
subsections 2 and 3 directly interfere with management's rights to
direct employees, assign work, and determine the Agency's internal
security practices under section 7106(a) of the Statute. The Agency
also asserts that the subsections do not constitute negotiable
procedures under section 7106(b)(2) of the Statute.
Regarding its first contention, the Agency states that it is
"implementing the mandatory use of electronic paging devices (beepers)
by compliance staff to further (its) response to situations" that
require the Agency's presence. Agency's Statement of Position at 2.
The Agency explains that management must communicate with its compliance
staff when they are in field locations for the purpose of communicating
work instructions, information, and emergency assignments. The Agency
argues that the use of beepers will greatly facilitate the communication
process because, "(i)n the past, management had to wait for the employee
to make telephone contact or management had to contact the compliance
officer by utilizing the employer's work site telephone." Id. According
to the Agency, the use of a call-in procedure created delays in
communications between management and the compliance staff and the
Agency determined that beepers would "be an asset in furthering the
performance of the Agency's mission(,)" by enhancing the Agency's
response time. Id.
The Agency argues that the Union's proposal, which attempts to make
the use of beepers voluntary, is negotiable only at the election of the
Agency and the Agency has elected not to bargain. In this regard, the
Agency argues that the decision to use beepers involves the technology,
methods and means of performing work.
The Agency also contends that the subsections directly interfere with
management's rights to direct employees, to assign work, and to
determine internal security practices by limiting the manner in which
the Agency may monitor employee conduct or performance.
Finally, the Agency asserts that the subsections in dispute do not
constitute negotiable procedures under section 7106(b)(2) of the Statute
because they would "excessively interfere" with the exercise of its
reserved management rights and, in certain circumstances, "prevent
management from acting at all." Id. at 3.
B. The Union
The Union contends that the subsections in dispute are negotiable
because the "adverse impact of the utilization of the beepers (is)
bargainable." Petition for Review at 1. The Union adds that it is not
arguing that management cannot use beepers, but that the Agency has not
demonstrated a compelling need for the use of beepers only during the
employees' 8-hour day shift. The Union argues that one of the purported
uses of beepers is to enable employees to respond to emergencies even
though those emergencies can occur during the other 16 hours of the day.
The Union also argues that if there were a need to immediately contact
employees for emergencies, the Agency would not have limited the use of
beepers only to the bargaining unit employees at the Norfolk office
involved herein, and to one other office in Baltimore. The Union also
states that, notwithstanding the use of beepers, employees are still
required to call in to their supervisors twice daily.
The Union contends that the subsections in dispute have no bearing on
the Agency's internal security but, rather, involve "a way to contact
employees in the field(.)" Id. at 2. Moreover, the Union asserts that
the subsections do not concern the technology of work but merely relate
to a "means to monitor an employee." Id. The Union also contends that
the Agency elected to bargain concerning the use of beepers, as
evidenced by the fact that the Agency only declared the subsections
nonnegotiable after management gave its counterproposals to the Union,
and also because management negotiated over other proposals that are not
here in dispute. Finally, the Union contends that the use of beepers
"is bargainable and does not infringe upon management(')s rights under
7106(b)(1) in any way." Id. at 3.
We find that the subsections in dispute are outside the duty to
bargain because they directly interfere with the Agency's right to
determine the methods and means of performing work under section 7106(
b)(1) of the Statute. /1/ Additionally, the subsections constitute
neither negotiable procedures nor appropriate arrangements under
sections 7106(b)(2) and 7106(b)(3) of the Statute.
Subsection 2 of the proposal would make the use of beepers voluntary.
If an employee chooses to use a beeper, subsection 3 would eliminate
the requirement that the employee call in, unless the employee was
responding to a page.
The Authority employs a two-part test to determine whether a proposal
directly interferes with the methods and means of performing work.
National Treasury Employees Union, Chapter 83 and Department of the
Treasury, Internal Revenue Service, 35 FLRA 398, 406-07 (1990) (Internal
Revenue Service). First, an agency must show a direct and integral
relationship between the particular method or means the agency has
chosen and the accomplishment of the agency's mission. Id. at 406.
Second, the agency must show that the proposal would directly interfere
with the mission-related purpose for which the method or means was
adopted. Id. As relevant to this case, the Authority has construed
"means" as referring to any instrumentality, including an agent, tool,
device, measure, plan or policy used by an agency for the accomplishing
or furthering of the performance of its work. Id. at 407. The term
"performing work" is intended to include those matters that directly and
integrally relate to the agency's operations as a whole. Id.
Additionally, for purposes of section 7106(b)(1), the means employed
need not be indispensable to the accomplishment of an agency's mission.
Rather, and as interpreted in various court decisions, the means need
only be "a matter that is 'used to attain or make more likely the
attainment of a desired end' or 'used by the agency for the
accomplishing or furthering of the performance of its work.'" Id. at
407-08.
Here, the Agency has established that there is a direct and integral
relationship between the use of beepers and the accomplishment of the
Agency's mission. In this regard, it is uncontroverted that the current
procedure of maintaining telephone contact with employees in field
locations has caused delays in communicating with these employees. The
Agency has determined that in order to enhance response time to
emergency situations, work assignments, and to provide other
information, the use of beepers would be effective in furthering the
Agency's mission. Clearly, the ability to respond more expeditiously to
emergency and other assignments is directly linked to the compliance
functions performed by the employees, which in turn, serves to promote
the accomplishment of the Agency's mission.
With regard to enhanced response to emergency situations, the Union
asserts that the Agency has made mandatory the use of beepers only
during the employees' 8 hours of duty time, that emergencies can occur
during other times of the day, and that "management can not rationalize
compelling need for only 1/3 of the time." Petition for Review at 2. We
interpret the Union's argument as questioning the credibility of the
Agency's decision to have unit employees use beepers only during their
duty hours in light of the fact that emergencies can occur at any time
of day. Assuming that only unit employees would respond to emergency
situations and only during their working hours, the fact that
emergencies can occur at times outside the employees' duty hours does
not compel a conclusion that beepers are not a means of performing work.
Moreover, in determining whether an instrumentality constitutes a
"means" within the meaning of section 7106(b)(1), an agency is not
obligated to establish a "compelling need" for the instrumentality.
Instead, the means "need only be a matter that is 'used to attain or
make more likely the attainment of a desired end' or 'used by the agency
for the accomplishing or furthering of the performance of its work.'"
Internal Revenue Service at 407.
Having found that there is a direct and integral relationship between
the use of beepers and the accomplishment of the Agency's mission, we
also find that the Agency has established that subsections 2 and 3 would
directly interfere with the Agency's mission. As noted, subsection 2
would make the use of beepers voluntary, while subsection 3 would
eliminate the requirement of calling in, other than responding to a
page, for those employees who elect to use a beeper. Insofar as the
Agency has determined that beepers will enhance its response time and,
thereby, further the performance of the Agency's mission, allowing
employees the option of using a beeper by making such use voluntary,
which is the basis of both of these subsections, directly interferes
with the purpose for which beepers were adopted.
Consequently, subsections 2 and 3 directly interfere with the
Agency's right to determine the methods and means of performing work
under section 7106(b)(1) of the Statute.
In reaching this conclusion, we reject the Union's contention that
the Agency elected to bargain over these matters by offering
counterproposals and negotiating over other proposals concerning the use
of beepers. We find nothing in the record that establishes the Agency
elected to bargain over the language of the subsections that are before
us. Instead, as the Union notes, the Agency "eliminated union proposals
# 2 & 3 and stated that they were non-negotiable." Petition for Review
at 1. Therefore, neither the Agency's offer of counterproposals nor its
negotiations as to other proposals concerning the use of beepers
warrants a finding that the Agency elected to bargain over the
particular matters here in dispute.
We also find that this case is distinguishable from 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 (1991) (Marine Corps Locals), petition for
review filed sub nom. U.S. Department of the Navy, U.S. Marine Corps,
Washington, D.C. v. FLRA, No. 91-1182 (D.C. Cir. April 18, 1991). In
that case, we found negotiable a proposal that would prevent the agency
from requiring employees to wear and respond to beepers unless they were
in a pay status. Significantly, we found that nothing in the proposal
would prohibit the agency from requiring employees to carry and respond
to beepers. Id. at 780. We also addressed and rejected the agency's
argument that the proposal would interfere with management's right to
determine the technology, methods, and means of performing work. We
stated that "(e)ven assuming that the requirement to carry and respond
to a beeper bears a technological relationship to accomplishing or
furthering the performance of the (a)gency's work" the proposal wwas
concerned only with the pay status of employees who were required to
carry beepers. Id. at 781-82. By contrast, the matters here in dispute
do not pertain to the employees' pay status but, rather, to whether
employees will be required to use beepers in the first instance.
Moreover, contrary to the proposal in Marine Corps Locals, the
subsections of the proposal at issue in this case permit the use of
beepers only on a voluntary basis, which directly interferes with the
exercise of management's rights under section 7106(b)(1) of the Statute.
The Authority has held that proposals that directly interfere with
the exercise of a management right do nott constitute negotiable
procedures under section 7106(b)(2) of the Statute. See National
Association of Government Employees, Local R12-33 and U.S. Department of
the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA
No. 45, slip op. at 9 (1991); American Federation of Government
Employees, Council 214 and Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977,
984 (1990). To the extent that the matters proposed to be bargained
here directly interfere with the exercise of a management right, they do
not constitute negotiable procedures.
Finally, we find that subsections 2 and 3 do not constitute an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. Although the Union did not clearly articulate an assertion
that these subsections were intended to be an appropriate arrangement
for employees adversely affected by the exercise of a management right,
we will construe the Union's petition for review to contain such an
assertion for two reasons. First, in its petition, the Union argues
that subsections 2 and 3 are negotiable because of the "adverse impact
of the utilization of the beepers . . . ." Petition for Review at 1.
Second, in its declaration of nonnegotiability, the Agency took the
position that subsections 2 and 3 are not appropriate arrangements
because they would directly interfere with the exercise of various
management rights and that "the detriment to management's exercise of
its reserved rights outweighs any benefits the employee would receive."
Petition for Review, Exhibit E.
We find, however, that subsections 2 and 3 do not constitute
appropriate arrangements. To determine whether a proposal constitutes
an appropriate arrangement under section 7106(b)(3), it is necessary to
determine whether it is: (1) intended to be 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 management's right. National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24,
31-33 (1986).
Assuming that subsections 2 and 3 were intended to be an arrangement,
by virtue of the Union's statement that the matters are bargainable
because of the "adverse impact" of the use of beepers, we nonetheless
find that the arrangement is not appropriate within the meaning of
section 7106(b)(3). By making the use of beepers voluntary, at the sole
option of the employee, the subsections would prevent the Agency from
requiring their use, even when the Agency has determined that the use of
beepers will enable employees to respond quickly to emergencies and
other situations requiring immediate action. The impact on the Agency's
ability to perform its mission would, thereby, be seriously impaired.
In contrast, the benefits to the employees of being able to choose not
to carry a beeper and not to call in unless paged, are minimal. In our
view, the balance tips heavily in favor of the Agency's position.
Accordingly, we conclude that the subsections here in dispute, limiting
the Agency's use of beepers, excessively interfere with the exercise of
management's right to determine the methods and means of performing
work.
In sum, we find that subsections 2 and 3 directly interfere with
management's right to determine the methods and means of performing work
under section 7106(b)(1) of the Statute. Additionally, the subsections
do not constitute a negotiable procedure under section 7106(b)(2) of the
Statute or an appropriate arrangement under section 7106(b)(3) of the
Statute. In view of our conclusions, it is unnecessary to address the
Agency's additional contentions as to the negotiability of these
subsections.
The petition for review is dismissed.
(1) In view of our decision, it is unnecessary to pass on the
Agency's contention that the matters in dispute also interfere with the
Agency's determination as to the technology of performing work.
40 FLRA 792
40 FLRA NO. 64
Dept. of Justice, Immigration and Naturalization Service, United
States Border Patrol, El Paso, Texas and AFGE, National Border Patrol
Council, Case No. 6-CA-80173 (Decided May 6, 1991)
7116(a), (5) and (8)
7114(b)(4)
7121(d)
UNFAIR LABOR PRACTICE
PROCEDURAL ISSUE
UNTIMELY EXCEPTIONS
UNDATED EXCEPTIONS FOUND IN DOCKET ROOM
FURNISH INFORMATION
PROCESSING OF GRIEVANCE
PERFORMANCE APPRAISAL
SELECTION OF PROCEDURES
REASONABLE AVAILABLE
SANITIZED DOCUMENTS
A preliminary procedural issue concerned the timeliness of the
Respondent's exceptions, which were discovered in the FLRA's Docket Room
in-box on the morning after the last date on which they could be timely
filed. No envelope, postmark or evidence of mailing was attached to the
copy found in the Docket Room, and there was no date stamp or other
indication of how or when the exceptions arrived. The Authority
concluded that the exceptions were untimely filed and they were not
considered.
The case involved a request for information under 7114(b)(4). At
issue was a request for specified unsanitized information on the
performance rating of other unit employees. The Authority initially
addressed the issue of whether the section 7121(d) provision that an
aggrieved employee affected by a prohibited personnel practice may raise
the matter under a statutory procedure or a negotiated grievance
procedure, but not both, renders this case moot, as the grievant in this
case had also filed an EEO complaint after the Respondent had denied the
request for the information sought. The Authority addressed this issue
"in this unique circumstance," notwithstanding the fact that it was
raised in the Respondent's untimely exceptions. On the merits of the
issue, the Authority concluded that on the record before them, they
could not determine whether the EEO complaint constituted an exercise of
the 7121(d) option that would preclude the filing of a grievance. If
the Union were to file a grievance, that question would be for the
arbitrator to decide. Therefore, 7121(d) does not compel the dismissal
of the complaint, noting particularly that the information sought is for
the purpose of investigating a potential grievance. Accordingly, the
allegation of mootness was rejected.
On the issue of the Judge's granting, in part, the Respondent's
petition to revoke the subpoena as to some of the documents sought, the
Authority noted that a judge has the discretion to issue protective
orders and to order sanctions, including drawing inferences adverse to
the position of the party refusing to produce documents. The Authority
was satisfied that the Judge did not abuse his discretion and it was
found that his denial of the GC's request for a protective order and for
sanctions did not constitute error.
As for the information requested, the Authority adopted the Judge's
conclusion that the documents requested were necessary for the Union to
exercise its representational functions in determining whether to file a
grievance and that the Respondent violated the Statute by refusing to
furnish Officer Corps ratings of employees similar to the grievant and
performance work folders. As to whether, under the circumstances,
furnishing as many as 10,000 or more documents representing the reports
of the eleven border patrol agents at the station for a twelve-month
period would constitute an undue burden on the Respondent and thereby
lead to the conclusion that the information requested is not reasonably
available, the Authority concluded that it had not been shown that the
production of the documents would require extreme or excessive means.
Finally, reviewing the Judge's finding that sanitization of the names of
aliens who are the subject of some of the documents would be proper, the
Authority concluded on balance that the release of these documents in
unsanitized form would constitute "an unwarranted invasion of privacy"
within the meaning of the Privacy Act. In order to safeguard against
such an invasion of privacy, the Authority ordered appropriate
sanitization of any documents subject to 5 U.S.C. 552(b)(7)(C). Any
dispute that may arise as to the proper extent of sanitization are
appropriate for resolution at the compliance stage of the case.
Case No. 6-CA-80173
DEPARTMENT OF JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE, UNITED STATES BORDER PATROL, EL PASO, TEXAS
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's decision. The Judge found
that the Respondent violated section 7116(a)(1), (5) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
refusing to provide data to the Union which it needed to determine
whether to file a grievance.
The Respondent and the General Counsel filed exceptions to the
Judge's decision. The General Counsel filed a motion to strike the
Respondent's exceptions, and filed an opposition to the Respondent's
exceptions. The Respondent filed an opposition to the General Counsel's
exceptions and a motion to dismiss the complaint. The General Counsel
then moved to strike the Respondent's opposition and the Respondent's
motion to dismiss the complaint. The Charging Party also 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. We affirm the rulings as discussed below in
Section VI. B. Upon consideration of the Judge's decision and the
entire record, we adopt the Judge's findings, conclusions and
recommended order to the extent consistent with this decision.
The General Counsel moved to strike the Respondent's exceptions as
being untimely filed and untimely served on the parties. In a
separately filed opposition to the Respondent's exceptions, the Charging
Party similarly argued that the exceptions were untimely.
Under the Authority's Rules and Regulations, exceptions must be
postmarked by the due date or, if hand delivered, filed in the
Authority's Docket Room by that date. 5 C.F.R. Sections 2429.21(b) and
2429.24(a). The due date for exceptions to the Judge's decision in this
case was December 26, 1989.
The Respondent's exceptions were discovered in an in-box in the
Authority's Washington, D.C. Docket Room on the morning of December 27,
1989. They originated in the Respondent's Washington, D.C. office. No
envelope, postmark or evidence of mailing was attached to the copy found
in the Authority's Docket Room, and there was no date stamp or other
indication of how or when the exceptions arrived.
In view of the fact that the Respondent's exceptions were first
discovered in the Docket Room in-box after the December 26, 1989, due
date with no evidence of the date or time of delivery, and there is no
indication that the exceptions were received or postmarked by the date
they were due, they are untimely and have not been considered. /1/
This case involves a request for information under section 7114(b)(
4) of the Statute. The General Counsel asserts that the information is
necessary for the Union to determine whether to pursue a grievance on
behalf of a unit employee. The potential grievance relates to the
employee's Officer Corps rating.
Robert J. Marren is a border patrol agent at the Fabens Station, part
of the Respondent's El Paso, Texas Sector Office. Since February 1987,
he has been executive vice-president of the Union. On December 1, 1987,
he received his Officer Corps ratings from his first-line and
second-line supervisors, as was customary. Both supervisors gave him
the highest overall rating possible. However, he received a rating of
"good" rather than "very good" from both supervisors in several
elements, including the productivity element. Marren believed that he
had been treated differently than other agents because of his union
activity. /2/
The rating factors for the productivity element are as follows:
1. Quantity and quality of work compare favorably with that of
others who have similar production opportunity.
2. Finished product is technically satisfactory.
3. Diligently pursues tasks to completion without unnecessary
delay.
On December 7, 1987, Marren wrote to the Respondent in his capacity
as Union representative, stating that he was contemplating filing a
grievance and that the Union was investigating the possibility that he
had received disparate treatment. He requested the following three
categories of unsanitized data relating to all journeymen unit employees
of the Fabens Station from November 1986 through November 1987:
1. officer corps ratings;
2. all documents contained in the performance work folders or
whatever other source of data management maintains with respect to
(their) ratings (including Mr. Marren's);
3. copies of any and all documents and reports completed
during the period covered by the 1988 officer corps rating i.e.:
I-213 (Record of Deportable Alien)
I-274 (Notice & Request for Disposition)
I-50 (Daily Activity Report)
DJ-296 (Bi-Weekly Time & Attendance Report)
I-44 (Report of Apprehension & Seizure)
G-166
(Smuggling Report)
G-170
G-205 (Vehicle Maintenance Report)
All documents related to WA/OSC and criminal prosecution.
Judge's Decision at 5-6.
The Respondent replied on December 28, 1987. First, the Respondent
stated that the request for the Officer Corps ratings should be made to
the Central Office where the Officer Corps ratings were due to be
received on January 8, 1988. Second, the Respondent asserted that
performance work folders are not maintained by supervisors and that no
relevant material was available. Third, in regard to the request for
the list of specific documents, the Respondent answered that the request
was too broad, that not every piece of work product of an employee is
reviewed by the supervisor, and that errors that are noted may be
corrected "so that the incorrect product would not be maintained."
Further, the reply said that a supervisor may use "refresher notes" for
rating an employee. Id. at 6. /3/
The first category of documents sought refers to the Officer Corps
ratings of the other ten border patrol agents in the bargaining unit.
At the hearing before the Judge, there was a factual dispute about the
existence of the documents in the second category, the performance work
folders, for the period in question. Evidence was presented, however,
that Martinez, Marren's second level supervisor, kept a memorandum of
Marren's performance, including comments about productivity as well as
other factors considered in the annual rating. In addition, Martinez
kept administrative files, which could have contained comments about
employees' work performance bearing on factors that comprise the rating
evaluation.
Finally, the last group of items sought includes a long list of
documents and work reports by the 11 border patrol agents. Daily work
reports turned in by the agents on various forms constitute the
production record of border patrol agents. Martinez testified that he
did not have the work products or documents prepared by the agents when
he rated them. Rather, he said that he used refresher notes and
referred to the station log, which is completed daily. The station log,
a summary of an agent's actions, records the arrest or apprehension of
every alien. It shows factual data about the alien, but does not show
the quality of an officer's work, or who logged in the report.
One of the Respondent's witnesses testified that he had been told it
would probably take 350 hours to look through the log sheets and put
together the documents sought. Tr. 59-60. Another witness for the
Respondent testified that he did not know how long it would take to
accumulate the requested documents for the full year of the rating
period. He did testify that "if numerous employees requested this vast
amount of data, . . . (w)e couldn't accomplish our primary mission," and
he did not think there would be the budget to accomplish it. Tr.
170-71.
Prior to the hearing, the General Counsel served a subpoena on the
Respondent requesting that the documents in question be produced at the
hearing to resolve issues raised by the Respondent, such as whether the
documents were relevant and necessary to the Union in fulfilling its
representational duties, and certain concerns under the Privacy Act, 5
U.S.C. Section 552a (1988). At the hearing, the General Counsel
modified its request for subpoenaed documents to the 5-month period from
November 28, 1986, through April 1987. In response to motions by the
parties, the Judge made various rulings regarding the subpoena,
including a partial denial of the Respondent's motion to revoke the
subpoena and a refusal to grant the General Counsel's request for
sanctions and a protective order.
After the hearing, the Respondent furnished to the Union the
unsanitized ratings, the first category of documents sought.
The Judge concluded that the Union was entitled to the available data
requested, including the documents and reports by patrol agents for the
period from November 28, 1986 through April 1987. In this regard, the
Judge stated that the General Counsel had "modified the period for which
it requested information" as to those dates. Judge's Decision at 5 n.7.
The Judge found that the material was normally maintained, reasonably
available and necessary for the Union to fulfill its representational
duties, as set forth in section 7114(b)(4) of the Statute. He also
found that to provide certain data would not impose an undue burden upon
the Respondent or interfere with the normal functions of its
organization. There was no assertion by the Respondent that the
information requested constitutes guidance, advice, counsel or training
for management officials or supervisors relating to collective
bargaining. The Judge concluded that the refusal to furnish the
information was a refusal to bargain, in violation of section 7116(
a)(1) and (5) and a failure to comply with section 7114(b)(4) of the
Statute, in violation of section 7116(a)(1) and (8).
Specifically with regard to the Officer Corps ratings, the Judge
found that it was necessary for the Union to obtain the appraisals of
the other similarly situated employees so that it could determine
whether to file a grievance alleging disparate treatment. Although the
Respondent had furnished all the requested information in this category
after the hearing, the Judge found that the Respondent did not thereby
fulfill its obligation under section 7114(b)(4), which requires that
data be furnished in a timely manner. Accordingly, he found that the
failure to do so violated the Statute.
With regard to the second category of information sought, the
documents in performance work folders or other sources, the Judge found
that information in any documents about the work performance of agents
is necessary to assess whether the rating given Marren in the
productivity element constituted disparate treatment.
Despite conflicting evidence as to whether performance work folders
were kept during the rating year involved, the Judge noted that the
Respondent kept memoranda containing comments about productivity and
other administrative files that would bear on factors that comprise the
rating evaluation. He therefore found a violation of the Statute in
this regard and concluded that the Respondent should be directed to
supply whatever pertinent documents or memoranda it has in its
possession. The Judge noted that the availability of the items can best
be determined during the compliance stage of the case.
With regard to the third category of information sought, the
documents and reports by Patrol Agents, the Judge initially found the
information to be necessary to enable the Union to decide whether to
file a grievance on behalf of Marren.
The Judge found that no determination as to disparate treatment of
Marren could be made in a grievance without examining the work records
of the other agents. In this regard, the Judge found that "these
documents would quantify the tasks performed by each employee and enable
the Union to contrast Marren's productivity with his fellow workers.
Obtaining these documents is therefore essential to the Union performing
its representational functions." Judge's Decision at 13. The Judge also
noted that although Marren's supervisor testified that he does not rely
upon some of these work products by the agents in assessing their
productivity, each form does measure the employee's production.
Therefore, the Judge concluded "that a supervisor's failure to examine
the work product should not militate against the need of the Union to
evaluate such records." Id. n.16.
Although the Respondent contended that the request would require it
to furnish approximately 10,000-15,000 documents and that they would be
difficult to retrieve and may not be discoverable in any event, the
Judge found that the request did not constitute an unreasonable burden.
He stated that the original request for documents covering a
twelve-month period had been shortened to a period of five months and
that the General Counsel had stated on the record that a lesser number
of reports would be acceptable.
In response to the Respondent's assertion that some of the data set
forth in certain files, such as information about aliens, might be the
basis for criminal prosecution, the Judge determined that disclosure of
the names would not significantly aid the Union and that sanitization of
the names of aliens in certain files would be proper. He therefore
recommended an Order requiring the Respondent to provide the Union with
the requested reports and documents comprising the work products for all
patrol agents at Fabens Station for the period November 28, 1986 through
April 1987, with the names of the aliens deleted from such data.
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's conclusion that the period
for which information is requested was shortened from twelve months to
five months and to the portion of the recommended order limiting
production of the requested information to the shorter period.
The General Counsel asserts that any references in the record by the
General Counsel to a reduced time frame "were made only in relation to
the issue of the subpoena(,)" which was an "attempt to alleviate any
alleged burden placed on the Respondent in complying with the subpoena."
General Counsel's Brief in Support of Exceptions at 5. The General
Counsel states that this concession was made because it did not consider
documents for the entire year covered by the complaint allegation to be
necessary for the Judge to be able to determine "the relevance,
necessity and other legal issues surrounding the documents." Id. The
General Counsel asserts that the Union needs to review the documents for
the entire rating period to establish a disparate treatment claim.
Moreover, the General Counsel argues that a reduction in the time frame
for the requested documents could have been accomplished only by
amending the complaint.
The General Counsel also excepts to various procedural rulings by the
Judge regarding the subpoena. These exceptions are discussed below in
the section VI of this decision.
B. Respondent's Opposition to Exceptions; Motion to Dismiss
Complaint
In its opposition, the Respondent argues that it should not have to
produce documents in response to the subpoena. It also argues that
sanctions should not be imposed for its failure to produce the
documents, because the subpoena was improper in that it sought the same
information that is at issue in this case and thereby circumvents the
protections provided by section 7114(b)(4) of the Statute. In addition,
the Respondent argues that its concerns under the Freedom of Information
Act, 5 U.S.C. Section 552 (1988) (FOIA) and the Privacy Act were
legitimate and provide no basis for sanctions.
In support of its motion to dismiss, the Respondent asserts that the
filing of an EEO complaint by Marren in a separate proceeding
constituted an election under section 7121(d) of the Statute. The
Respondent argues that, assuming the appraisals were subject to the
negotiated grievance procedure, the filing of the EEO complaint, "at
least 4 days before (Marren) filed his unfair labor practice charge"
precludes the grievance and, therefore, eliminates the basis for the
information request. Respondent's Opposition to Exceptions and Motion
to Dismiss at 14.
C. General Counsel's Motion to Strike Respondent's Opposition and
Respondent's Motion to Dismiss the Complaint
The General Counsel moves to strike the reference in Respondent's
Opposition to its Merit Promotion and Reassignment Plan. According to
the General Counsel, this "refers to an alleged agreement not introduced
into the record and which therefore does not constitute record evidence
in this case." General Counsel's Motion to Strike at 2.
Second, the General Counsel moves to strike Respondent's motion to
dismiss the complaint, which asserts that Marren's filing of an EEO
complaint was an election under section 7121(d) of the Statute that
barred an unfair labor practice complaint. In this regard, the General
Counsel argues that the EEO issue was not raised by the General Counsel
in its exceptions and is therefore "not a valid opposition for it does
not oppose anything raised by Counsel for the General Counsel.
Moreover, Respondent has already filed exceptions in this case and its
attempt to file cross exceptions via an opposition or motion to dismiss
has already been rejected by the Authority in Marine Corps Logistics
Base, Barstow, California, 33 FLRA No. 80 (1988)." General Counsel's
Motion to Strike at 2-3.
A. Section 7121(d) Does Not Render the Request for Information in
this Case Moot; Respondent's Motion to Dismiss the Complaint Is Denied
Section 7121(d) provides, in pertinent part, that an aggrieved
employee affected by a prohibited personnel practice may raise the
matter under a statutory procedure, such as an EEO procedure, or a
negotiated grievance procedure, "but not both." The option shall be
deemed to have been exercised when the employee initiates an action
under the applicable statutory procedure or files a grievance in writing
under the negotiated procedure, whichever occurs first.
Shortly after the Union filed, and the Respondent denied, the
information request to assist the Union in deciding whether to file a
grievance over border patrol agent Marren's Officer Corps rating, Marren
filed an EEO complaint. From the record, it appears that the EEO
complaint alleged that Marren had received a lower rating than he
deserved in reprisal for having filed an earlier EEO complaint. A
question is raised as to whether section 7121(d) of the Statute would
preclude the filing of a grievance concerning discrimination based on
Marren's Union activity.
The General Counsel asserts that as the Respondent's exceptions were
untimely, this issue was raised for the first time in the Respondent's
opposition to the General Counsel's exceptions. Because the General
Counsel's exceptions did not raise the issue, the General Counsel argues
that this defense is not properly before the Authority. /4/
For the reasons stated by the General Counsel, the Respondent's
section 7121(d) defense arguably is not before us. However, the
Respondent asserts, based on section 7121(d), that we must dismiss the
complaint as a matter of law. In this unique circumstance, we will
address the matter here. Accordingly, we deny the General Counsel's
motion to strike.
In general, an agency's contention that a potential grievance is not
grievable does not relieve an agency from its obligation to furnish
requested information. See, for example, U.S. Department of the Air
Force, Air Force Logistics Command, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (McClellan
Air Force Base, California), and cases cited therein. We note that at
the time of the request for information and the Respondent's denial of
that request, not only was there no grievance, but there also was as yet
no EEO complaint.
Moreover, on the record before us, we cannot determine whether
Marren's filing of an EEO complaint over his Officer Corps rating
constituted an exercise of this option under section 7121(d) that would
preclude the filing of a grievance. If the Union were to file a
grievance, that question would be for the arbitrator ultimately to
decide based on the circumstances of any such grievance. Internal
Revenue Service National Office, 21 FLRA 646, 649 n.3 (1986).
Therefore, section 7121(d) does not compel the dismissal of the
complaint. We note that the information sought by the Union is for the
purpose of investigating a potential grievance. In this regard, an
examination of the information might demonstrate that no contract
violation had occurred, and therefore no grievance might be filed.
Accordingly, we conclude that it cannot be established that the request
for information in this case is moot.
In view of the foregoing, the Respondent's motion to dismiss the
complaint is denied.
B. The Judge's Rulings at the Hearing are Affirmed
Prior to the hearing, the General Counsel served a subpoena on the
Respondent requesting that the documents in question be produced at the
hearing. The Judge made certain rulings with regard to the subpoena, to
which the General Counsel excepts.
At the hearing, the Judge granted, in part, the Respondent's petition
to revoke the subpoena as to some of the documents sought. Tr. 102;
127-28. The General Counsel argues that the Judge's ruling was
incorrect. The Judge ultimately determined that all of the documents
were relevant and necessary to the Union's potential grievance. Thus,
the ruling had no adverse effect on the General Counsel's position.
Therefore, in view of these circumstances and our ultimate disposition
of this case, we conclude that the ruling of the Judge was not
prejudicial error.
The Judge denied the General Counsel's request for a protective order
regarding the items no longer subject to the subpoena as a result of the
Judge's ruling. The General Counsel's request was based on an assertion
that documents returned to the Respondent were likely to be lost or
destroyed "because of Respondent's history of losing or destroying such
documents." General Counsel's exceptions at 11. The General Counsel
argued that protection was necessary because the ultimate disclosure of
the documents to the Union remained at issue in the case.
The General Counsel also asked the Judge to impose sanctions
regarding documents that the Respondent asserted it could not produce
because of its concerns about sanitization. The request was that the
Respondent be allowed no testimony or cross examination as to the
documents it would not produce, and that the Judge draw an adverse
inference as to the Respondent's refusal to produce the unsanitized
documents for the Judge's examination. Tr. 140; 143-44. The Judge
declined to impose sanctions.
A judge has the discretion to issue protective orders and to order
sanctions, including drawing inferences adverse to the position of the
party refusing to produce documents. We are satisfied that the Judge
did not abuse his discretion in this case. Therefore, his denial of the
General Counsel's requests for a protective order and for sanctions did
not constitute error. See Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring,
Maryland, 30 FLRA 127, 138-39 (1987).
C. The Requested Information Is Necessary
We agree with the Judge, for the reasons he stated, that all three
categories of documents are necessary for the Union to exercise its
representational functions in determining whether to file a grievance
regarding Marren's alleged disparate treatment in his Officer Corps
rating.
D. Officer Corps Ratings and Performance Work Folders
We adopt the Judge's finding, for the reasons he stated, that the
Respondent violated the Statute as alleged by refusing timely to furnish
the Officer Corps ratings of employees similarly situated to Marren. We
also adopt his findings as to the performance work folders or other
similar documents, for the reasons stated by the Judge. The Respondent
will be directed to furnish whatever pertinent documents or memos it has
in its possession.
E. Documents and Reports by Patrol Agents
1. The General Counsel Did Not Agree to Reduce the Number of
Documents Sought by the Union In Its Request for Information
The General Counsel excepts to the Judge's finding that the General
Counsel had agreed at the hearing that documents and reports covering a
shorter period than stated in the complaint would be acceptable as a
remedy for the alleged unfair labor practice. Rather, it asserts that
the agreement to accept documents for a shorter period was expressly
limited to the scope of the subpoena.
We have reviewed the record carefully, and conclude that the Judge's
finding that the General Counsel agreed at the hearing to limit the
scope of the documents sought under the complaint is unsupported.
Therefore, our inquiry must go beyond the Judge's determination that the
furnishing of five months' worth of documents, representing between
5,000 and 7,500 items, is not an unreasonable requirement. Rather, the
question is whether, under the circumstances, furnishing as many as
10,000 or more documents representing the reports of the eleven border
patrol agents at Fabens Station for a twelve-month period would
constitute an undue burden on the Respondent and thereby lead to the
conclusion that the information requested is not reasonably available.
2. Documents Covering the Twelve-Month Rating Period Are Reasonably
Available
The Statute requires that reasonably available data must be provided
if the other conditions of section 7114(b)(4) are met. Consistent with
this requirement, an agency is not required to provide information that
is available only through "extreme" or "excessive" means. Determining
whether extreme or excessive means are required to retrieve available
information requires a case-by-case analysis. McClellan Air Force Base,
California, 37 FLRA at 994; Department of Health and Human Services,
Social Security Administration, 36 FLRA 943, 950 (1990) (Social Security
Administration).
The Authority has held that it was not unreasonable to require
production of records that would take three weeks to retrieve,
especially where it appeared that some of the effort was due to the
method of recordkeeping chosen by the agency. Social Security
Administration, 36 FLRA at 950-51. Information also was found to be
reasonably available where it would take an agency three to four weeks
to write a new computer program that would be needed to retrieve the
data. Department of the Air Force, Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987),
reversed as to other matters sub nom. FLRA v. Department of the Air
Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, No. 87-1387 (D.C. Cir. Aug. 9, 1990). And in a case
involving these same parties and virtually identical data, it was not
established that approximately 5,000 sanitized items maintained in
different sections and offices of the agency could be produced only
through extreme or excessive means. U.S. Department of Justice,
Immigration and Naturalization Service, Border Patrol, El Paso, Texas,
37 FLRA 1310, 1323-24 (1990) (INS, Border Patrol).
On the other hand, data was not found to be reasonably available
where it "could have included information contained in personnel files
maintained by over 6,000 first level supervisors, as well as hundreds of
disciplinary files from various . . . personnel offices." Department of
the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, and Department of the Air Force,
Ogden Air Logistics Center, Hill Air Force Base, Utah, 21 FLRA 529, 532
(1986).
There is little record evidence in this case regarding the means
necessary to retrieve the work documents of the agents for the
twelve-month rating period. One witness, based only on what he had been
told, estimated that it would take more than 350 hours. Another witness
could give no estimate of how long it would take, but nevertheless
concluded that the impact on the mission of the Respondent "if numerous
employees requested this vast amount of data" would be so great that
"(w)e couldn't accomplish our primary mission," and that he did not
think there would be the budget to do it. Tr. 170-71.
These estimates were made at the hearing after the Respondent had
substantially gathered the five months' worth of documents required to
comply with the subpoena. There is no indication that the Respondent's
primary mission or budget were adversely affected by that effort, which
is a significant indicator of the work necessary to retrieve the
requested documents for the full twelve months.
In all the circumstances, in our view it has not been shown that
production of the documents would require extreme or excessive means.
Therefore, we conclude that the Respondent has not established that the
requested information was not reasonably available within the meaning of
section 7114(b)(4) of the Statute.
3. The Documents May Be Sanitized
The Judge found that sanitization of the names of aliens who are the
subject of some of the documents would be proper, and based this
conclusion on an uncontradicted finding that disclosure of such names
would not significantly aid the Union in processing its grievance. He
noted that some of the personal information set forth in the documents
pertaining to aliens might be the basis for criminal prosecutions.
The General Counsel does not dispute the finding that disclosure of
the names of aliens would not significantly aid the Union in processing
its grievance. However, the General Counsel does argue that some of the
documents released under the subpoena "were so heavily sanitized as to
be non-documents." General Counsel's exceptions at 12. Thus, this case
is distinguishable from INS, Border Patrol, 37 at 1324, where no such
assertion was made, and where it was not necessary to analyze the scope
of disclosure under the Privacy Act.
We conclude that the Privacy Act applies to at least some of the
individuals named in some of the documents sought, and therefore that
sanitization is necessary to protect the privacy of those individuals
before the documents can lawfully be released.
We disagree with the General Counsel's assertion that the Privacy Act
does not apply to any of the documents involved because they contain
information about illegal aliens who are not protected by the Privacy
Act. The Privacy Act applies to "a citizen of the United States or an
alien lawfully admitted for permanent residence." 5 U.S.C. Section
552a(a)(2). Although it is clear that many of the documents concern
only illegal aliens who would not be protected by the Privacy Act, it is
not clear from the face of a given document whether a particular subject
was an illegal alien. Moreover, even where the subject of a document
appears to be an illegal alien, the individual's status may not have
been finally adjudicated.
The General Counsel's second basis for arguing that the Privacy Act
does not apply is that the Respondent has not shown that the documents
are contained in a system of records. The Privacy Act precludes
disclosure of records contained in a system of records. 5 U.S.C.
Section 552a(b). The term "record" means:
any item, collection, or grouping of information about an
individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical
history, and criminal or employment history and that contains his
name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice
print or a photograph(.)
5 U.S.C. Section 552a(a)(4). A "system of records" is "a group of any
records under the control of any agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual(.)" 5
U.S.C. Section 552a(a)(5).
The General Counsel has not shown how the documents fall outside
these definitions. Indeed, the record shows that the Respondent was
able to retrieve a large number of the documents requested pursuant to
the subpoena. It is unlikely that it could have done so if the
documents were not maintained in a system of records. We conclude that
the evidence is sufficient to establish that the documents are
maintained in a system of records within the meaning of the Privacy Act.
Accordingly, we conclude that the Privacy Act applies to at least some
of the information sought.
With certain exceptions, the Privacy Act bars unconsented disclosure
by Federal agencies of information about individuals. 5 U.S.C. Section
552a(b)(2). See U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990). As pertinent here, the relevant exception is
contained in 5 U.S.C. Section 552a(b)(2), which concerns disclosure
required by the FOIA. In turn, the FOIA permits an agency to exempt
from disclosure investigatory records compiled for law enforcement
purposes, to the extent that the production of such records would
"constitute an unwarranted invasion of personal privacy(.)" 5 U. S.C.
Section 552(b)(7)(C). See generally, United States Dept. of Justice v.
Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989)
(Reporters Committee).
The documents sought clearly are records compiled for law enforcement
purposes. Therefore, the Respondent could refuse to disclose those
documents to the extent that they constitute "an unwarranted invasion of
privacy."
The United States Supreme Court has held that the policy of full
disclosure embodied in the FOIA "focuses on the citizens' right to be
informed about 'what their government is up to.'" Reporters Committee,
109 S. Ct. at 1481. In Portsmouth, the Authority recognized that in
cases involving information requested by a union in the course of
fulfilling its representational functions under the Statute, the
appropriate public interest to be applied is the facilitation of the
collective bargaining process in the Federal sector. 37 FLRA at 524-31.
Under either analysis, we see little or no public interest to be served
by releasing the names or personal identifiers of aliens or other
subjects, such as confidential informants or smugglers of aliens,
contained in various reports requested by the Union. In particular, to
assess whether to file a grievance regarding Marren's Officer Corps
rating, the Union needs only information that will enable it to compare
the work products of the eleven agents. The General Counsel has not
shown why such a comparison cannot be made without the names and
personal identifiers contained on the forms.
In contrast, the privacy interest of individuals who are the subject
of the various reports could be substantial. From various documents,
for example, confidential sources could be identified; arrest records
and other facts about the aliens -- some of whom may in fact be in this
country legally -- could be disclosed; and names and other information
about individuals alleged to have illegally smuggled aliens into the
country could be apparent.
In these circumstances, we conclude on balance that the release of
these documents in unsanitized form would constitute "an unwarranted
invasion of privacy" within the meaning of the Privacy Act. In order to
safeguard against such an invasion of privacy, we will order appropriate
sanitization of any documents subject to 5 U.S.C. Section 552(b)(7)(C).
Any disputes that may arise as to the proper extent of sanitization are
appropriate for resolution at the compliance stage of this case. INS,
Border Patrol, 37 FLRA at 1325.
The information requested by the Union is normally maintained by the
Respondent in the regular course of business; is reasonably available
and necessary for the Union to determine whether to file a grievance on
behalf of an employee; and does not constitute guidance, advice,
counsel, or training provided for management officials or supervisors,
relating to collective bargaining. Therefore, we find that the
Respondent was required, by section 7114(b)(4) of the Statute, to supply
the requested information to the Union and its failure to do so violated
section 7116(a)(1), (5) and (8) of the Statute, as alleged.
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 Justice, 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 to the American Federation of
Government Employees, AFL-CIO National Border Patrol Council, the
exclusive representative of its employees, the available data requested
in the Union's letter dated December 7, 1987, for the period November
1986 through November 1987, for the purpose of enabling the Union to
perform its representational duties relating to the evaluation and
processing of grievances. The data may be sanitized as necessary to
protect the privacy of individuals under the Privacy Act, 5 U.S.C.
Section 552a and the Freedom of Information Act, 5 U.S.C. Section 552.
(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) Furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
its employees, the available data requested in the Union's letter dated
December 7, 1987, for the period November 1986 through November 1987,
for the purpose of enabling the Union to perform its representational
duties relating to the evaluation and processing of grievances. The
data may be sanitized as necessary to protect the privacy of individuals
under the Privacy Act, 5 U.S.C. Section 552a, and the Freedom of
Information Act, 5 U.S.C. Section 552.
(b) Post at its facilities at El Paso, Texas and Fabens, Texas,
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, Immigration and Naturalization
Service, Southern Regional Office, Dallas, Texas, 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, Dallas 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 furnish to the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, the
exclusive representative of our employees, the available data, sanitized
as necessary, requested in the Union's letter dated December 7, 1987,
for the period November 1986 through November 1987, for the purpose of
enabling the Union to perform its representational duties relating to
the evaluation and processing of grievances.
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 furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
our employees, the available data, sanitized as necessary, requested in
the Union's letter dated December 7, 1987, for the period November 1986
through November 1987, for the purpose of enabling the Union to perform
its representational duties relating to the evaluation and processing of
grievances.
(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, Dallas Regional Office, Federal Labor Relations
Authority, whose address is: Federal Office Building, 525 Griffin
Street, Suite 926, Dallas, TX 75202, and whose telephone number is:
(214) 767-4996.
Case No. 6-CA-80173
DEPARTMENT OF JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE, UNITED STATES BORDER PATROL, EL PASO, TEXAS
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Charging Party
Sherry M. Cardenas, Esq., For the Respondent
Christopher J. Ivits, Esq., For the General Counsel
Robert J. Marren, For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on May 25, 1988
by the Regional Directorr, Federal Labor Relations Authority, Region VI,
a hearing was held before the undersigned on October 19, 1988 and
January 18, 1989 at El Paso, Texas.
This case arises 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 on January 15, 1988 by American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, (herein
called the Union) against United States Immigration and Naturalization
Service, United States Border Patrol, El Paso, Texas (herein called the
Respondent).
The Complaint alleged, in substance, that on or about December 7,
1987 the Union requested necessary and relevant information relating to
the Officer Corps Rating of employee Robert J. Marren. /5/ Further,
that Respondent since December 28, 1987 has refused to furnish the
information and to comply with section 7114(b)(4) of the Statute -- all
in violation of sections 7116(a)(1), (5) and (8) of the Statute.
Respondent's Answer, while admitting the request and a reply thereto,
denied that the data requested was normally maintained in the regular
course of business and denied that it was reasonably available as well
as necessary for full and proper discussion, understanding and
negotiations of collective bargaining subjects. It also denied the
commission of any unfair labor practices 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. Thereafter, briefs were filed by the
Respondent and General Counsel with the undersigned which have been duly
considered.
On May 11, 1989 the Charging Party filed a Motion To Reject
Respondent's Post-Hearing Brief as untimely filed. /6/ It was contended
that the briefs were due May 1, 1989; that Respondent's brief was
received by the Union's Counsel on May 5, 1989; that the postage tape
"U.S. Official Mail" was dated May 3 and not May 1 as certified by
Respondent.
In a response to the Motion the Respondent's Counsel stated that the
brief was signed and sealed by her on May 1 and forwarded to its mail
room on that date; that mail is picked up by a mail clerk and delivered
to another building for distribution where thousands of pieces of mail
are handled. Respondent requested that untimeliness be waived and its
brief accepted.
In accord with section 2429.21(b) of the Authority's Rules and
Regulations, the date of filing the briefs is determined by the date of
mailing as indicated by the postmark date. In this instance
Respondent's brief should have been postmarked no later than May 1,
1989. Thus, it was marked two days later than required. Section
2429.33(b) of the Rules and Regulations provides that, in extraordinary
circumstances, the expired time limit for filing papers may be waived.
Upon due consideration I conclude that the circumstances warrant waiving
the time limit for filing Respondent's brief. It appears that
Respondent made an honest effort to have it mailed and postmarked on May
1. Apart from the fact that the delay was inconsequential, note is
taken that the opposing party filed no brief and was not prejudiced, and
the General Counsel did not object to the late filing of Respondent's
brief. Accordingly, the Motion of the Charging Party to reject
Respondent's brief is denied.
Upon the entire record hereto, 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 exclusive bargaining representative of all nonprofessional employees
at Respondent's Border Patrol Sectors excluding those employees excluded
by Section 10(b) of the Executive Order 11491, as amended.
2. At all times material herein the Union and the Respondent have
been parties to a written collective bargaining agreement establishing
terms and conditions of employment of employees in the unit heretofore
described.
3. Respondent's Central Office is located at Washington, D.C. As
part of its entity are the Regional and District Sectors, as well as
substations. One of the Sector Offices is in El Paso, Texas.
4. Under the El Paso Sector is the Fabens Station where eleven
border patrol agents are employed. One of these agents, Robert J.
Marren, has been so employed thereat since September 1984, and has been
executive vice-president of the Union since February 1987. Border
patrol agents detect, deter and apprehend aliens who have entered the
United States illegally.
5. Every calendar year each agent at the Fabens Station receives an
Officer Corps Rating from his first and second line supervisors. This
rating includes an appraisal of the agent as being either "very good",
"good", "fair" or "don't know" as to the following: /7/
(a) Degree Of Technical Knowledge
(b) Productivity Of Employee
(c) Capacity For Self Expression
(d) Extent Of Interest And Motivation
(e) Service Of Responsibility
(f) Ability To Innovate
(g) Appearance
(h) Analytical Ability
(i) Adaptability
(j) Relationship With Others
The cover sheet of this rating or appraisal provides for a
recommendation by the supervisor in respect to promotion of the patrol
agent. The supervisor checks either "A", which recites that he highly
recommends such promotion, "B", which recites that he recommends the
employee for promotion, or "C", that he does not recommend the employee
for promotion. /8/
6. On or about December 1, 1987, Patrol Agent Marren received his
Officer Corps Rating for 1988 from his first-line supervisor Sterling
Smith and his second-line supervisor Ernesto Martinez. /9/ While both
supervisors highly recommended Marren for promotion neither rated him
"very good" for all ten factors. Smith rated the employee as "good" for
Productivity, Extent of Interest and Motivation and Adaptability. As to
the remaining seven factors, Smith rated Marren as "very good".
Martinez rated the employee as "good" for Productivity, Appearance and
Relationship With Others. As to the remainder, Martinez rated Marren as
"very good." /10/
7. Record facts show that Marren was concerned about receiving a
"good" for Productivity rather than "very good" in both supervisors'
appraisals. Having felt that he had been treated differently than other
agents, Marren sent a letter as Union representative to Respondent's
Chief Patrol Agent on December 7, 1987. In said letter Marren stated he
was contemplating filing a grievance and the Union was investigating the
possibility that he was disparately treated. Accordingly, it was
requested that Respondent provide, as to all journeymen bargaining unit
employees of the Fabens Station, from November 1986 through November
1987, /11/ the following unsanitized data:
(a) officer corps ratings;
(b) all documents contained in the performance work folders or
whatever other source of data management maintains with respect to
there ratings (including Mr. Marren's);
(c) copies of any and all documents and reports completed
during the period covered by the 1988 officer corps rating i.e.:
I-213 (Record of Deportable Alien)
I-274 (Notice & Request for Disposition)
I-50 (Daily Activity Report)
DJ-296 (Bi-Weekly Time & Attendance Report)
I-44 (Report of Apprehension & Seizure)
G-166
G-170 (Smuggling Report)
G-205 (Vehicle Maintenance Report)
All documents related to WA/OSC and criminal prosecution.
8. In respect to Productivity, the main factor which caused concern
to Marren re his rating, the three items or criteria which comprise a
rating for this factor are:
(a) Quantity and quality of work compare favorably with that of
others who have similar production opportunity.
(b) Finished product is technically satisfactory.
(c) Diligently pursues tasks to completion without unnecessary
delay.
9. Under date of December 28, 1987 James A. Brown, Respondent's
Assistant Regional Commissioner, replied to Marren's respect for data re
the Officer Corps Ratings for 1988. In request to the ratings, Marren
was advised they are not due at the Central Office till January 8, 1988,
and that his request should be made to that Office. Re the performance
work folders, Brown stated they are not maintained by the supervisor and
no relevant or necessary material is available. As to the specific
documents sought by Marren, Respondent's official recited the request
was too broad; that every piece of work product of the employee is not
reviewed by the supervisor, and errors which are noted may be corrected
by either one so that the incorrect product would not be maintained.
Further, a supervisor may use "refresher notes" for use in rating an
employee.
10. Marren testified that when he received his 1986 Officer Corps
Rating he was told by supervisors Smith and Martinez that performance
work folders were maintained for employees. Supervisor Martinez
testified that no performance work folders existed at the time he
prepared the Officer Corps Ratings on December 1, 1987, nor did they
exist subsequent thereto. Further, Martinez stated he did not have the
work products or documents prepared by the agents at hand when he rated
them. He used refresher notes and referred to the station log which is
completed daily. /12/
11. At the time that Marren received his 1986 Officer Corps Rating,
on or about December 8, 1986, Supervisor Martinez showed the employee a
document (G.C. Exhibit 3) to support the rating. This occurred after
Marren challenged his not being rated "very good" re several factors.
This document, dated December 8, 1986, includes comments concerning
Marren's productivity and other factors comprising the Officer Corps
Rating. Marren testified that Martinez stated he had documents or a
written file or report on all the employees. /13/
12. Each patrol agent is required to submit daily various forms
which constitute the work product of the employee. These forms indicate
the work or tasks performed by the agent in connection with his duties
concerning detection, apprehension, and arrest of aliens as well as
seizure of vehicles. Marren testified that these reports or forms would
show the completeness, accuracy, neatness and timeliness of the agent's
work under the heading "Productivity".
13. In addition to the work forms or products turned in by the
agents, as set forth in paragraph 7 above, other documents or reports
turned in by each agent are:
(a) Standard Preventive Maintenance Schedules
(b) I-217 Information For Travel Document or Passport
(c) I-221S Order To Show Cause, Notice of Hearing -- Warrant
For Arrest Of Alien
(d) I-214 Aviso De Derechos
(e) I-265 Application For Order To Show Cause and Bond/Custody
Processing Sheet
(f) I-620 Record Of Seized Vehicle, Vessel or Aircraft
14. Supervisor Martinez testified that the work forms requested by
the Union for the eleven patrol agents would probably be about 10,000 in
number. While he didn't know how long it might take to accumulate them
for a one year period, it would be too much work and the agency's
mission could not be accomplished. /14/
15. Record facts show, and Martinez testified, that the supervisor
is required to take into account the daily forms or reports (I-213,
I-50, et al.) when preparing an agent's Officer Corps Rating. Further,
he stated that, in making out that rating, he does not rely upon or
consider certain reports of the agents, viz: I-50, G-205, DJ-296,
G-264, I-217, I-221S, I-214, I-265, I-620 and I-274.
16. The record also reflects that when an alien is going to be
retained for a deportation hearing or for a reason other than being
returned voluntarily to Mexico, an "A" (alien) file is created.
Particular documents or reports of the agent, as the I-265, I-213,
I-214, G-205, I-294 and I-221S, are grouped together to comprise the "A"
(WA/OSC) files. /15/
17. Except for the Officer Corps Ratings of the remaining ten patrol
agents, /16/ Respondent has refused to turn over unsanitized copies of
all other data requested by the Union. /17/
18. On January 11, 1988 Marren filed an EEO Complaint of
discrimination against Respondent based on his receiving less than "very
good" in several categories comprising his Officer Corps Rating on or
about December 1, 1987.
As set forth in section 7114(b)(4) of the Statute, the duty of an
agency to negotiate in good faith includes the obligation to furnish the
exclusive representative data (a) which is normally maintained by the
agency in the regular course of business; (b) which is reasonably
available and necessary for full and proper discussion, understanding
and negotiation of subjects within the scope of collective bargaining;
and (c) which does not constitute guidance, advise, counsel or training
for management officials or supervisors, relating to collective
bargaining. /18/
It is also clear that the data sought by a union must be necessary to
enable it to fulfill its representational functions. This encompasses a
need for information when a union is contemplating the filing of a
grievance. In such an instance the data may be required before a
grievance is filed so that the union may determine and evaluate whether
there may be merit to an employee's complaint. Immigration and
Naturalization Service et al., 23 FLRA 239.
The issue presented in this case concerns whether Respondent failed
to comply with section 7114(b)(4) when it refused to furnish the data
requested by the Union. Respondent has taken the position that most of
the information was neither reasonably available nor necessary for
collective bargaining. Further, that to provide certain data would
impose an undue burden upon it and interfere with the normal functions
of the agency.
Contrariwise, the General Counsel argues that the data sought herein
is necessary for the Union to evaluate and decide whether a grievance
should be filed on behalf of Border Patrol Agent Marren. Since the
latter insists he should have been rated as "very good" for Productivity
in particular on his 1988 Officer Corps Rating, the data is sought to
determine whether Marren was treated disparately. Such an objective in
requesting data is an integral part of the Union's representational
functions. See U.S. Equal Employment Opportunity Commission,
Washington, D.C., 20 FLRA 357.
Officer Corps Ratings
In respect to the Union's request for the 1988 Officer Corps Ratings
of the other patrol agents, Respondent stresses the fact that
Commissioner Brown advised Marren on December 28, 1987 that the Union
should seek this data from the Central Office. Since said office is the
custodian of these ratings, the Union, it is asserted, was obliged to
request the ratings from it. Thus the failure to do so excused
Respondent from not providing them. Further, it is contended that
subsequent to the hearing the Union was provided with unsanitized copies
of the ratings, and thus compliance with this request has been
established.
The Officer Corps Ratings were sought by the Union to determine
whether the failure to rate Marren as "very good" on Productivity in the
1988 rating was cause for filing a grievance. This employee raised
concerns re disparate treatment. Decisional law in the public sector
makes it clear that a request for data of this nature -- appraisals of
other employees -- is necessary within the meaning of section 7114(b)(
4). Such information enables the exclusive representative to discharge
its statutory obligation, which includes the investigation and
processing of a grievance, Rolla Research Center, Bureau of Mines, 29
FLRA 107.
While it is true that Respondent did ultimately furnish the ratings
of the agents to the Union, it did not do so until after the hearing
herein. Such belated compliance with a union's request for data does
not fulfill an agency's obligation under section 7114(b)(4). As the
Authority has declared, a union may not be denied the opportunity to
obtain requested information in a timely manner and without burden or
delay. A two month delay in providing such information was not deemed
timely. Department of Defense Dependents Schools, Washington, D.C.,
Department of Defense Dependents Schools, Germany Region, 19 FLRA 790.
In the instant case I find no merit to the claim that the Union's
failure to obtain the data was due to its not requesting it from the
Respondent's Central Office. The record supports the conclusion that
Respondent made no good faith effort to furnish the Officer Corps
Ratings to the Union upon its request. At the hearing Respondent
initially contended that the data was not necessary under section 7114(
b)(4), and resisted any obligation to furnish it. Although an employer
may reasonably suggest that the bargaining representative should turn to
the proper source for the information, its later conduct belies any
willingness to comply with the mandate of the Statute. Accordingly, I
conclude that the failure by Respondent to timely provide the Officer
Corps Ratings, as requested by the Union, was violative of section
7116(a)(1), (5) and (8) of the Statute.
Documents In Performance Work Folder Or Other Sources
In its December 7, 1987 request the Union sought documents pertaining
to the work performance of the patrol agents in connection with Marren's
possible grievance. The request referred to "performance work folders"
which prompted a reply from Respondent that supervisors did not keep
such folders for employees.
The record reflects conflicting testimony as to the existence of such
performance work folders. Supervisor Martinez testified there are none.
Marren testified that both Martinez and Supervisor Smith stated
otherwise. Apart from the question as to whether such performance
folders are maintained, /19/ the record reflects that Supervisor
Martinez did keep a memorandum of an employee's performance. Thus a
memo to the file dated December 8, 1986, re Marren's annual Officer
Corps Rating has comments by Martinez as to this employee's productivity
as well as other factors considered in the annual rating. Further,
Martinez testified he kept administrative files while he was at the
Fabens Station. Comments in these files about employees' work
performance, such as Martinez wrote concerning Marren, would have a
bearing on the factors which comprise the rating evaluation. As such,
any documents re the work performance or agents, which are written by
management, would be relevant and necessary in assessing whether the
rating given Marren as to his production constituted disparate
treatment. Thus, I conclude that the Union is entitled to any such
documents to fulfill its representational function.
It is also true that Respondent may not be held accountable for data
it no longer possesses. U.S. Naval Supply Center, San Diego,
California, 26 FLRA 324. In line with the Authority's decision in
Department of Justice, United States Immigration and Naturalization
Service, United States Border Patrol, 23 FLRA 239, the availability of
the data involved can best be determined during the compliance stage of
this proceeding. Respondent will however be directed to supply whatever
such documents or memos it has in its possession.
Documents And Reports By Patrol Agents
The sharpest dispute between the parties concerns the Respondent's
obligation to furnish the Union the work reports turned in daily by the
patrol agents for the period covering the 1988 rating. Respondent
insists that these were not before the supervisor when he considered the
rating on each factor. Further, that he did not rely upon certain forms
or reports when rating the individual agents. Thus, it is argued they
are not necessary under section 7114(b)(4)(B) of the Statute for the
Union to fulfill its function as bargaining representative. Moreover,
it is insisted that these forms number at least 10,000, are not easily
located, and the whereabouts of many are unknown. Respondent contends
the task is burdensome.
The crux of Patrol Agent Marren's complaint centers on the rating
factor of his productivity. It is his lowered rating in this factor
which caused him to maintain that his production record is comparable to
the other agents at the Fabens Station and to consider the filing of a
grievance. In regard to the production of an agent, the rating
official's criteria involve: (a) quantity and quality comparable to
others; (b) technical correctness; (c) diligence in completing tasks.
The various forms which the patrol agents complete and submit daily
reflect the work done by each individual in the course of his duties.
They constitute the production record of the patrol agents.
In seeking these forms or work products of the patrol agents at
Fabens, the Union attempts to compare the work records of Agent Marren
with his co-workers. It seems clear that such documents, as set forth
in the Complaint herein, would be necessary to enable the Union to
determine whether a grievance on behalf of Marren is warranted. No
determination as to disparate treatment by Respondent of Marren could be
made without examining the work records of the other agents. These
documents would quantify the tasks performed by each employee and enable
the Union to contrast Marren's productivity with his fellow workers.
Obtaining these documents is therefore essential to the Union performing
its representational functions. /20/ Bureau of Alcohol, Tobacco, and
Firearms, National Office, Washington, D.C., 18 FLRA 611; Social
Security Administration, Baltimore, Maryland, 17 FLRA 837.
Respondent contends that to require it to furnish the work forms
submitted by the eleven patrol agents would impose an undue burden upon
it. Those documents, the employer avers, would approximate
10,000-15,000 in number. Further, that they would be difficult to
retrieve and may not be discoverable in any event.
While no unreasonable burden should be imposed upon an agency in
complying with section 7114(b)(4) of the Statute, I am not persuaded
that furnishing the data herein constitutes such an imposition. Though
the request by the Union for the data covered a twelve month period, at
the hearing the requested period was shortened to five months --
November 28, 1986 through April 1987. Further, General Counsel stated
on the record that a lesser number of reports submitted by the agents
would be acceptable. These factors, together with the understanding
that data which is not retrievable could obviously not be furnished,
vitiate any merit to the claims of burdensomeness.
Respondent has argued herein that certain "A" (alien) files should
not be furnished since they contain personal data re an alien. Some of
the information set forth therein as to the alien might be the basis for
criminal prosecution. /21/ In respect to this contention, I am
persuaded that sanitization of the names of aliens, who are the subject
of the work product by the patrol agents, would be proper. It does not
appear that disclosure of such names would significantly aid the Union
in processing its grievance. Thus, I conclude that while Respondent
should provide the Union with the requested reports and documents
comprising the work products for all patrol agents at Fabens Station for
the period November 28, 1986 through April 1987, the names of the aliens
on each report may be sanitized. See U.S. Equal Employment Opportunity
Commission, Washington, D.C., 20 FLRA 357.
In view of the foregoing, I conclude the Union was entitled to the
available data requested for the period as modified, i.e. November 28,
1986 through April 1987, with the particular sanitization as noted
herein; that the refusal and failure to timely provide such information
was a refusal to bargain in violation of section 7116(a)(1) and (5) of
the Statute. Further, that by such conduct Respondent failed to comply
with section 7114(b) of the Statute and violated sections 7116(a)(1) and
(8) thereof.
Accordingly, 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 Justice, 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 to the American Federation of
Government Employees, AFL-CIO National Border Patrol Council, the
exclusive representative of its employees, the available data requested
in a letter dated December 7, 1987, addressed to the Chief Patrol Agent,
U.S. Border Patrol, El Paso, Texas by Robert J. Marren, Chief Steward,
American Federation of Government Employees, National Border Patrol
Council, for the period November 28, 1986 through April 1987 for the
purpose of enabling the National Border Patrol Council to perform its
representational duties relating to the evaluation and processing of
grievances.
(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) Furnish to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
its employees, the available data requested in a letter dated December
7, 1987, addressed to the Chief Patrol Agent, U.S. Border Patrol, El
Paso, Texas by Robert J. Marren, Chief Steward, American Federation of
Government Employees, National Border Patrol Council, for the period
November 28, 1986 through April 1987 with the names of the aliens
deleted from such data, for the purpose of enabling the National Border
Patrol Council to perform its representational duties relating to the
evaluation and processing of grievances.
(b) Post at its facilities at El Paso, Texas and Fabens, Texas,
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, Immigration and Naturalization
Service, Southern Regional Office, Dallas, Texas, or a designee 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
Regulationss, notify the Regional Director, Region VI, Federal Labor
Relations Authority, Federal Office Building, 525 Griffin Street, Suite
926, Dallas, TX 75202 in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., November 22, 1989.
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
(1) In view of this determination, it is unnecessary to consider the
General Counsel's alternative motion to strike certain portions of the
Respondent's exceptions.
(2) The reason for Marren's concern despite the high overall rating
was that the individual element ratings yield a point total, which
determines an employee's location on the promotion or transfer rosters.
Tr. 74.
(3) On January 11, 1988, Marren filed an EEO complaint against the
Respondent alleging that the Respondent had discriminated against him in
his Officer Corps rating because he had filed an earlier EEO complaint.
Judge's Decision at 9. The record does not disclose the exact wording
of this complaint.
(4) The General Counsel also moved to strike a portion of the
Respondent's Opposition to the General Counsel's Exceptions that
referred to a document not introduced into the record. As that document
was not necessary to our disposition of this case, it is unnecessary to
pass on that aspect of the General Counsel's motion.
(5) The particular data requested by the Union, as set forth in the
Complaint, will be recited in the Statement of Facts, infra.
(6) No brief was filed by the Charging Party. The General Counsel
filed no objection to the untimeliness of Respondent's brief.
(7) Under each of the ten factors are listed several criteria for
determining compliance with these factors. (See Joint Exhibit 3.)
(8) There is a promotion roster for the agents. Each employee is
ranked thereon dependent upon the points he received as to each factor.
Thus, a rating of "very good" results in the highest number of points
with lesser points for "good" and "fair" successively.
(9) Martinez left the Fabens Station in July 1988.
(10) The Officer Corps Rating also contains a narrative by each
supervisor concerning the employee which is set forth in the form
(G-610A) under "Comments."
(11) At the hearing, and in accord with a subpoena duces tecum issued
at its request, the General Counsel modified the period for which it
requested information to: November 28, 1986 through April 1987.
(12) The station log, which is a summarization of an agent's actions,
contains the arrest or apprehension of every alien. It included his
name, date of birth, country or origin, status of alien, activity
engaged in, mode of travel, and officer who apprehended the alien. It
does not show the quality of an officer's work nor who logged in the
report.
(13) Although Martinez testified there were no work performance files
or folders kept for employees, he did not explain the circumstances of
this document or controvert Marren's testimony in regard thereto.
(14) There is no evidence as to the amount of work forms that would
be involved for the period in question, viz: November 28, 1986 thru
April 1987. General Counsel did state on the record that a lesser
number of forms filled out by each agent would be acceptable.
(15) It appears from the record that Respondent has identified nine
"A" files as existent during the period November 28, 1986 through April
1987. However, it has located just five of them, and four are missing.
(16) In March 1989 Respondent provided unsanitized copies of the 1988
Officer Corps Ratings for the border patrol agents at Fabens Station.
(General Counsel Exhibit 22).
(17) Supervisor Martinez testified that, in preparing Officer Corps
Ratings, he relied upon certain reports of the agents: I-44, G-166,
I-213, G-170. The undersigned ordered Respondent to turn these over to
General Counsel under a protective order. These documents were
subsequently sent to General Counsel and sanitized in accord with such
order. Thereafter General Counsel sent them to the undersigned marked
as Joint Exhibit 23 for examination and submission under seal to the
Authority.
Certain other agents' reports were, as testified, not relied upon by
Martinez in preparing his ratings. These were I-50, G-205, DJ-296,
G-284, I-217, I-221, I-214, I-265, I-620 and I-274. In respect to their
production at the hearing pursuant to the subpoena duces tecum addressed
to Respondent, the undersigned granted a petition to revoke based on
said testimony.
(18) Respondent's Answer admits that the information requested by the
Union herein does not constitute guidance, advice, counsel or training
for management officials.
(19) While Respondent contends these folders do not exist, the
Union's request went beyond one for just the performance folders. It
sought all documents in either the folders or any other source
maintained with respect to the ratings.
(20) While Martinez testified he does not rely upon some of these
work products by the agents in assessing their productivity, the record
reflects that each form does measure the employee's production. Since
these do provide the evidence re this factor, I conclude that a
supervisor's failure to examine the work product should not militate
against the need of the Union to evaluate such records.
(21) Respondent did not raise the Privacy Act, 5 U.S.C. 552(a) (1982)
as a defense to providing the work forms submitted by the patrol agents.
It has, however, averred that the forms would have to be reviewed to
determine if any data should be deleted pursuant to that Act or the
Freedom of Information Act.
WE WILL NOT fail and refuse to furnish to the American Federation of
Government Employees, AFL-CIO, National Border Patrol Council, the
exclusive representative of our employees, the available data requested
in a letter dated December 7, 1987, addressed to the Chief Patrol Agent,
U.S. Border Patrol, El Paso, Texas by Robert J. Marren, Chief Steward,
American Federation of Government Employees, National Border Patrol
Council, for the period November 28, 1986 through April 1987 with the
names of the aliens deleted from such data, for the purpose of enabling
the National Border Patrol Council to perform our representational
duties relating to the evaluation and processing of grievances.
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 to the American Federation of Government Employees,
AFL-CIO, National Border Patrol Council, the exclusive representative of
our employees, the available data requested in a letter dated December
7, 1987, addressed to the Chief Patrol Agent, U.S. Border Patrol, El
Paso, Texas by Robert J. Marren, Chief Steward, American Federation of
Government Employees, National Border Patrol Council, for the period
November 28, 1986 through April 1987 for the purpose of enabling the
National Border Patrol Council to perform our representational duties
relating to the evaluation and processing of grievances.
(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, Region VI,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.
40 FLRA 775
40 FLRA No. 63
Federal Deposit Insurance Corporation and NTEU, Case No. 3-CA-10255
(Decided May 6, 1991)
7116(a)(1), (5) and (8)
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN GROUNDRULES AND DUES WITHHOLDING PROCEDURES
ATTEMPT TO CHALLENGE CERTIFICATION THROUGH ULP PROCEEDINGS
REMEDY
PROSPECTIVE BARGAINING ORDER
REIMBURSEMENT OF DUES WITHHOLDING
ATTORNEY FEES
At issue was the Respondent's refusal to negotiate groundrules for
negotiations and a dues withholding procedure, admittedly as an attempt
to challenge the Union's certification through the ULP proceeding. The
Authority concluded that the Respondent is merely attempting to
relitigate the Authority's earlier representation decision wherein the
Authority had rejected the Respondent's objections to the election
concerning the providing of free legal assistance to five employees.
The Authority found in the instant case that the Respondent had offered
no new evidence or previously unavailable evidence or special
circumstances warranting an entitlement to relitigation of issues that
were or could have been litigated in the prior representation
proceeding. Therefore, the Authority reaffirmed its decision in the
representation case and found that the Respondent violated 7116(a)(1),
(5) and (8) by refusing to negotiate and by otherwise refusing to accord
the Union its statutory status as exclusive bargaining representative.
As to remedy, the Authority found that a prospective bargaining order
would promote an effective relationship between the parties, which
involves a new bargaining relationship. The Authority rejected the
Union's request for reimbursement for dues withholding not authorized,
noting that section 7115(a) involves an employee's individual right to
authorize a deduction of dues. If no employee exercise that right, a
union is entitled to no dues allotment from an agency. In this case,
there is no evidence or claim that the Respondent has refused to honor
such assignments or make any appropriate allotment to the Union. As the
deduction of dues is not dependent on any agreement between an agency
and a union, but, rather, is the result of authorizations from
individual employees, and because no violation of section 7115(a) was
alleged or found, the Authority concluded that such a remedy is not
authorized under the Statute.
Finally, the Authority rejected the Union's request for an award of
attorney fees, noting that under the Back Pay Act, an award of such fees
must be based upon an award of backpay that corrects an improper or
unwarranted personnel action. Because the Authority had awarded no
backpay in this proceeding, attorney fees under the Back Pay Act are not
authorized.
CASE NO. 3-CA-10255
FEDERAL DEPOSIT INSURANCE CORPORATION
(Respondent)
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority Rules and Regulations, based on
a stipulation of facts by the parties. The parties have agreed to waive
a hearing before an administrative law judge, including the presentation
of any evidence other than that contained in the stipulation and the
exhibits. The General Counsel, the Union and the Respondent filed
briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5) and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by refusing the Union's requests to negotiate
groundrules for the negotiations of a term contract and a dues
withholding procedure for employees in the exclusive bargaining units
certified on December 28, 1990, and by refusing to accord the Union its
statutory status as exclusive bargaining representative of the employees
in those bargaining units.
The Respondent admits that it denied the Union's requests to
negotiate, and that, since December 28, 1990, it has refused to
recognize the Union as the exclusive bargaining representative as
certified and has not provided the Union or affected employees with any
rights or entitlements provided for in the Statute "if the certification
were valid." Stipulation, Paragraphs 10 and 12.
For the following reasons, we conclude that the Respondent violated
the Statute, as alleged.
A representation election was conducted among certain employees of
the Respondent in two voting groups. Of the 76 valid ballots counted in
the voting group of professional employees, the employees voted, 45 to
31, not to be included in a mixed unit with nonprofessional employees.
Of the 76 valid votes counted in the voting group of professional
employees, 46 votes were cast for the Union and 30 votes were cast
against exclusive representation. Of the 1,848 valid ballots counted in
the voting group of nonprofessional employees, 1,273 votes were cast for
the Union and 575 votes were cast against exclusive recognition. There
were 53 challenged ballots, which were not sufficient in number to
affect the outcome of the election. Thus, a majority of the valid votes
were cast for the Union in each of the voting groups.
Immediately after the election, the Respondent filed two objections
with the Regional Director (RD), alleging that the Union had engaged in
improper conduct affecting the election. Specifically, the Respondent
objected to the Union's promise to temporary employees it sought to
represent that, if successful in the election, it would file a lawsuit
challenging their temporary status. The Respondent also complained that
the Union had provided free legal assistance prior to the election to
five temporary employees who had been terminated or whose employment
contracts had not been renewed. In his Decision and Order on Objections
to Election, the RD concluded that no objectionable conduct had occurred
that warranted setting aside the election.
The Respondent sought review of the RD's decision with the Authority.
On December 14, 1990, we denied the Respondent's application for
review. Federal Deposit Insurance Corporation, Washington, D.C., 38
FLRA 952 (1990) (FDIC). With regard to the Respondent's first
objection, we concluded that the Union's preelection promise to file a
lawsuit if it won the election did not improperly interfere with the
employees' freedom of choice in the election because that promise was
not tantamount to a monetary inducement to vote for the Union. Id. at
963.
We further concluded that the Respondent had not demonstrated that
the RD's factual findings concerning the Respondent's second objection
were clearly erroneous. Without deciding whether the Union's conduct of
providing free legal assistance to the five individuals could have
interfered with voter choice, we concluded that the conduct did not, in
the circumstances in this case, materially affect the results of, or
warrant setting aside, the election. Id. at 964. We found that the
Respondent had presented no evidence as to the possible influence of the
Union's conduct on other employees. For example, no evidence was
presented that the Union or the terminated employees had publicized the
Union's representation of the employees in question during the election
campaign. The Respondent had argued that requiring it to present
material evidence on this fact placed too great an onus on it. We
rejected that contention, citing to section 2422.21(b) of our Rules and
Regulations, which provides that "(t)he objecting party shall bear the
burden of proof at all stages of the proceeding regarding all matters
raised in its objections." We further noted that the Respondent was able
to provide considerable evidence with regard to the Union's publicizing
of its promise to file a lawsuit if it won the election.
Accordingly, we found that only a small number of the eligible voters
were directly affected by the Union's preelection conduct. In our view,
the assistance provided to five individuals would not affect the results
of a nationwide election in which over 1,800 ballots were cast, where
there was a lack of evidence that anyone knew of the Union's preelection
conduct, and where the margin of the Union's victory was substantial.
Moreover, we found that of the four unit employees and one supervisor
directly affected by the Union's conduct, only one had voted, and it was
clear that one vote could not have been determinative of the election
outcome. Therefore, we concluded that the Union's preelection conduct
of providing free legal assistance to five employees did not materially
affect the results of the election nor warrant the setting aside of the
election, citing NLRB v. Golden Age Beverage Company, 415 F.2d 26, 30
(5th Cir. 1969).
As to the Respondent's request that a hearing be held on its second
objection in order to provide it with an opportunity to explore the
matter, we found that the decision to hold a hearing is within the RD's
discretion, citing section 2422.21(g) of our Rules and Regulations. In
reviewing the RD's decision, we concluded that there had been no abuse
of that discretion and that the decision was correct. 38 FLRA at
963-64.
On December 28, 1990, the RD certified the Union as the exclusive
representative of the following two bargaining units:
All professional employees of the Federal Deposit Insurance
Corporation, Division of Liquidation, Division of Accounting and
Corporate Services and Legal Division (DOL) who are employed at
Division of Liquidation Regional Offices, Consolidated offices and
Liquidation sites nationwide, excluding all management officials,
supervisors and employees described in 5 USC 7112(b)( 2)(3)(4)(6)
and (7). All nonprofessional employees of the Federal Deposit
Insurance Corporation, Division of Liquidation, Division of
Accounting and Corporate Services and Legal Division (DOL) who are
employed at Division of Liquidation Regional Offices, Consolidated
offices and Liquidation sites nationwide, excluding all management
officials, supervisors and employees described in 5 USC
7112(b)(2)(3)(4)(6) and (7).
Stipulation, Joint Exhibit 1.
On December 18, 1990, the Respondent's Director of Personnel had
issued a memorandum to the Respondent's managers and supervisors which
provided, in part, that the Respondent intended to contest the validity
of the certifications and that "you should not recognize (the Union) in
any manner as the representative of the employees under your
supervision." Id., Joint Exhibit 5 (emphasis in original). In early
January 1991, the Union sought to negotiate groundrules for a term
contract and a dues withholding procedure with the Respondent on behalf
of the bargaining unit employees. In a letter dated January 25, 1991,
the Respondent's Chairman responded, stating that the Respondent would
not comply with the bargaining requests because it challenged the
Union's certification. Since December 28, 1990, the Respondent has
refused to recognize the Union as the exclusive bargaining
representative of its employees in the two units and has not provided
the Union or affected employees with any of the rights or entitlements
provided for in the Statute.
At the General Counsel's request, under section 7123(d) of the
Statute, a temporary injunction was granted by the United States
District Court for the District of Columbia, enjoining the Respondent
from (1) continuing to refuse to recognize the Union as the exclusive
representative of the bargaining units; and (2) continuing to refuse to
accord to the Union all rights and entitlements to which such exclusive
bargaining representatives are entitled under the Statute. S. Jesse
Reuben v. Federal Deposit Insurance Corporation, No. 91-372 (D.D.C.
April 10, 1991), appeal filed, No. 91-5111 (D.C. Cir. April 24, 1991).
A. The General Counsel
The General Counsel contends that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute by refusing to recognize the
Union as the exclusive bargaining representative for certified units of
Respondent's employees and by denying to the Union and unit employees
all rights and entitlements provided for in the Statute. The General
Counsel argues that the stipulation establishes that the Respondent
desires to test in the U.S. Court of Appeals the certification issued by
the RD in this matter. The General Counsel contends that the
stipulation "clearly shows that Respondent has been and is in flagrant
violation of the Statute." General Counsel's Brief at 4.
The General Counsel maintains that as the stipulation raises no claim
of newly discovered or previously unavailable evidence or special
circumstances, the Authority should expeditiously find a violation of
the Statute. The General Counsel argues that "(i)t is by now well
established in the private and Federal sectors that only in certain
circumstances can a respondent relitigate issues resolved during the
representation case process in the unfair labor practice procedure." Id.
In support, the General Counsel relies on Texas Industries, Inc., 199
NLRB 671, 672 (1972) (Texas Industries), in which the National Labor
Relations Board (NLRB) cited Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 162 (1941) (Pittsburgh Plate Glass); and Defense Logistics
Agency, 5 FLRA 126 (1981).
The General Counsel contends that the Respondent has engaged in and
is engaging in unfair labor practices under the Statute and requests
that the Authority issue "an appropriate order" fully remedying all of
the Respondent's unlawful conduct. General Counsel's Brief at 6.
B. The Union
The Union contends that the Respondent has violated and continues to
violate the Statute by refusing to accord the Union its rights as the
certified bargaining representative. It argues that "it is patently
clear that (the Respondent) is in blatant violation of the (Statute)."
Union's Brief at 12.
The Union notes that the Respondent is testing the certification by
committing an unfair labor practice in order to seek review in the Court
of Appeals. The Union argues that because the record does not contain
new facts or issues regarding the underlying election challenge, there
is no issue as to the Respondent's commission of the unfair labor
practices, citing Texas Industries. In this regard, the Union contends
that the only argument available to the Respondent is that the
Authority's decision in FDIC was wrongly decided. It asserts that there
is no reason to disturb that decision.
The Union contends that the Authority correctly found that the RD's
decision not to hold a hearing was within his discretion. The Union
notes that the Respondent's claim that it was denied an evidentiary
hearing before the RD "is most disingenuous." Id. at 18. In this
regard, it claims that the Respondent never requested a hearing in any
of its submissions before the RD, even though the Respondent retained
the burden of establishing its objections at all times. The Union
asserts that the Authority correctly ruled that the conduct of providing
legal services to the five employees was not determinative of the
outcome of the election, given the facts and circumstances of the case.
In support, the Union cites Amalgamated Clothing Workers, 424 F. 2d
818, 827 (D.C. Cir. 1970).
As a remedy, the Union requests "a cease and desist order, attorney
fees, and extraordinary relief consistent with (the Respondent's)
frontal assault on the statutory scheme and the (Authority's) mission."
Union's Brief at 20. In this regard, it requests a retroactive
bargaining order and the payment to the Union of all moneys that should
have been withheld pursuant to dues withholding.
C. The Respondent
The Respondent contends that the Authority is empowered to re-examine
the merits of the Respondent's election objections, and that the
Authority should exercise this power to find that the Union engaged in
unlawful campaign conduct. First, it argues that the Union's promise to
file a lawsuit on behalf of the temporary employees "irreparably tainted
the laboratory conditions surrounding the holding of fair and free
elections." Respondent's Brief at 8. In this regard, it cites National
Labor Relations Board v. Savair Manufacturing Company, 414 U.S. 270
(1973) and Molded Acoustical Products, Inc. v. NLRB, 815 F.2d 934 (3rd
Cir. 1987), cert. denied, 484 U.S. 924 (1987), cases that were addressed
in FDIC. In addition, the Respondent argues that the decision in NLRB
v. Tio Pepe, 629 F.2d 964 (4th Cir. 1980), a case not previously brought
to our attention, requires a finding of improper interference with the
election because the Union, like the union in that case, retained sole
and exclusive control over its campaign pledge.
The Respondent also asserts that it "has previously presented
sufficient evidence on its direct conferral of benefits objection
(second objection) to warrant the holding of an evidentiary hearing."
Respondent's brief at 1-2. In this regard, it argues that "(i)t is well
settled that the failure to hold such a hearing presents serious due
process problems." Id. at 2. The Respondent maintains that without a
hearing it could not ascertain the extent to which news of the Union's
conduct was disseminated. Thus, it contends that, in light of the fact
that the Respondent was not afforded such an opportunity, the objection
should be remanded and an evidentiary hearing held. In support, the
Respondent cites various private sector cases, including: NLRB v.
Shrader's Inc., No. 90-5205 (6th Cir. Mar. 15, 1991); Bauer Welding and
Metal Fabricators v. NLRB, 676 F.2d 314 (8th Cir. 1982) (Bauer); NLRB
v. Winburn Tile Mfg. Co., 663 F.2d 44 (8th Cir. 1981); NLRB v. Nixon
Gear, Inc., 649 F.2d 906 (2d Cir. 1981); Linn Gear Co. v. NLRB, 608
F.2d 791, 793 (9th Cir. 1979). The Respondent contends, in this regard,
that Pittsburgh Plate Glass is readily distinguishable from the present
case because in this case no evidentiary hearing was conducted on its
direct conferral of benefits objection.
The Respondent further argues that if the Authority upholds its
previous decision on the election objections and rules that it has
engaged in an unlawful refusal to bargain, any remedy should be purely
prospective in nature. It contends that a retroactive remedy would
severely disrupt its operations; would be based upon a record devoid of
any evidence of unlawful unilateral changes in working conditions; and
would be unwarranted given that the Respondent "has not engaged in any
willful acts of bad faith." Respondent's Brief at 2.
We conclude that the Respondent violated section 7116(a)(1), (5) and
(8) of the Statute by refusing to negotiate and by otherwise refusing to
accord the Union its statutory status as exclusive bargaining
representative of the employees in the two bargaining units.
The Respondent admits that it is attempting to challenge the Union's
certification through this unfair labor practice proceeding. With
regard to the merits of its actions, it has raised in this proceeding
only the two arguments we addressed in our decision in FDIC. After
careful consideration of the Respondent's brief in this case, we
conclude that the Respondent is merely attempting to relitigate that
decision. It has offered no new evidence or previously unavailable
evidence or special circumstances warranting an entitlement to
relitigate issues that were or could have been litigated in the prior
representaton proceeding. See, for example, Texas Industries, Inc.;
Pittsburgh Plate Glass Co.
In so concluding, we have considered the Respondent's assertion that
it has previously presented sufficient evidence on its objection to the
RD's findings regarding the alleged direct conferral of benefits to
warrant the holding of an evidentiary hearing. It argues that the
failure to hold such a hearing presents serious due process problems.
We note that the Respondent restricts this request for a hearing to its
second objection.
The Respondent requests the hearing to determine whether the Union's
conduct of providing free legal assistance to five employees was
publicized by the Union or the five employees, thus affecting the
results, and warranting setting aside, the election. There is no
question that the Union provided the assistance. We find, however, that
the Respondent has not, in FDIC or in this case, made an offer of proof
sufficient to raise a substantial and material factual issue warranting
a hearing. See Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3rd Cir. 1981)
(Anchor Inns), in which the court held that a party is entitled to an
evidentiary hearing if its objection raises substantial and material
issues of fact. The court held that in order to obtain an evidentiary
hearing, the objector's proffer of evidence must on its face warrant
setting aside the election. The proffer "may not be conclusory or
vague; it must point to specific events and specific people." 644 F.2d
at 296. See also NLRB v. Claxton Mfg. Co. Inc., 613 F.2d 1364, 1365
(5th Cir. 1980) (Claxton). Further, in Bauer, a case cited by the
Respondent, the court held that the test for determining whether
material factual issues exist is that set forth in NLRB v. Griffith
Oldsmobile, Inc., 455 F.2d 867, 668-69 (8th Cir. 1972):
It is incumbent upon the party seeking a hearing to clearly
demonstrate that factual issues exist which can only be resolved
by an evidentiary hearing. . . . Mere disagreement with the
Regional Director's reasoning and conclusions do(es) not raise
'substantial and material factual issues.' . . .
676 F.2d at 316.
In Claxton, the court held that to obtain a hearing, the losing party
bears a heavy burden; its affidavits must contain specific evidence of
specific events from or about specific people. The court held that
"conclusory allegations are not sufficient." 613 F.2d at 1366. In
addition, the court held that when the objecting party establishes a
right to a hearing, the Regional Director's investigation of objections
will not be a substitute for a hearing. Due in part to the opinion in
Claxton and other court decisions requiring evidentiary hearings in
certain circumstances, the NLRB reexamined its procedures for disposing
of post-election objections to the conduct of elections and amended its
rules and regulations. The revised regulations state that a hearing
"shall be conducted with respect to those objections or challenges which
the regional director concludes raise substantial and material factual
issues." 29 C.F.R. Section 102.69(d); Erie Coke & Chemical Company, 261
NLRB 25 (1982).
The Respondent has not presented any evidence in either this
proceeding or in FDIC as to the possible influence of the Union's
conduct on other employees. See 38 FLRA at 963. As in the earlier
case, there is no showing here to indicate that a hearing might
establish that the Union or the terminated employees publicized the
Union's representation of the employees in question during the election
campaign. The Respondent offered no affidavits or other evidence to
support its claim that the Union or the employees publicized the Union's
conduct. Rather, the Respondent argues only that "it defies logic to
conclude that no one was aware these employees were receiving free legal
services from (the Union)." Respondent's brief at 29. This argument
falls far short of the required offers of proof. It points to neither
specific events nor specific people and is merely conclusory in nature.
See Anchor Inns, 644 F.2d at 296. Thus, adopting the private sector
standard, we conclude that the Respondent has not made an offer of proof
sufficient to raise a substantial and material factual issue warranting
a hearing. We find it to be significant, in disposing of this issue,
that in FDIC we concluded that the Union's preelection conduct of
providing free legal assistance to five employees did not materially
affect the results of the nationwide election in which over 1,800
ballots were cast. 38 FLRA at 964.
Therefore, we reaffirm our decision in FDIC, and find that the
Respondent has not raised any issue that is properly litigable in this
unfair labor practice proceeding. The Respondent has admitted that it
has denied the Union's requests to negotiate, and that since December
28, 1990, has refused to recognize the Union as the exclusive bargaining
representative of its employees. Accordingly, we find that the
Respondent has violated section 7116(a)(1), (5) and (8) of the Statute
by refusing to negotiate and by otherwise refusing to accord the Union
its statutory status as exclusive bargaining representative.
A. A Prospective Bargaining Order Is Appropriate
The Union has requested that the Respondent be ordered to
retroactively bargain regarding all changes in working conditions since
certification. Taking into account the totality of the circumstances,
we believe that a prospective bargaining order is appropriate.
In National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C.
Cir. 1990) (en banc), the court found, as relevant here, that the
Authority has broad discretion to fashion appropriate remedies for
unfair labor practices. Specifically, the court held that there is
nothing in the language of the Statute that restricts the Authority's
discretion to determine whether and when to direct retroactive
bargaining orders as a remedy for an agency's refusal to bargain.
In the past, the Authority has imposed retroactive bargaining orders
in certain defined situations. For example, such a remedy is
appropriate where there has been a refusal to bargain over a specific
proposal that had previously been held by the Authority to be within the
duty to bargain. See Environmental Protection Agency, 21 FLRA 787, 790
(1986). The Authority has also ordered an agency to incorporate into
the parties' collective bargaining agreement the specific terms of an
interest-arbitration award retroactively to the date the award became
final and binding. Id. Further, we have ordered retroactive bargaining
orders in cases involving refusals to bargain over negotiable proposals.
See U.S. Department of Defense Dependents Schools, Dependents Schools,
Mediterranean Region, Madrid, Spain, 38 FLRA 755 (1990).
Although these examples do not exhaust the type of cases in which
retroactive bargaining orders would be appropriate, we believe that a
prospective bargaining order would promote an effective relationship
between the parties in this case, which involves a new bargaining
relationship. The Union has requested bargaining for an initial
agreement. Thus, all issues remain open to the parties during
negotiations. Indeed, the Union had offered no substantive proposals
with its requests to negotiate, except for a dues withholding procedure.
In these circumstances, we find that a prospective bargaining order
will provide the parties in this new relationship with the flexibility
to determine what will best serve their needs.
Accordingly, in the circumstances of this case, we conclude that a
prospective bargaining order will best effectuate the policies and
purposes of the Statute. We emphasize, however, that our remedy will
not preclude the parties from giving retroactive effect to any agreement
reached, on any matter. See, for example, U.S. Department of the
Treasury, Customs Service, Washington, D.C. and Custom Service,
Northeast Region, Boston, Massachusetts, 38 FLRA 989 (1990).
B. Reimbursement for Dues Withholding Not Authorized
The Union requests as a remedy that the Respondent reimburse it for
moneys that should have been withheld from employees under dues
withholding. We find that such a remedy is not authorized in this case.
Section 7115(a) of the Statute provides that if an agency receives
from an employee in an appropriate unit a written assignment authorizing
the deduction of dues, the agency shall honor the assignment and make an
appropriate allotment to the exclusive representative. The legislative
history of section 7115 indicates that the employee alone controls the
manner of dues payment and that an agency's obligation to honor dues
check-off authorizations is mandatory and nondiscretionary. American
Federation of Government Employees, AFL-CIO, Local 2612 v. FLRA, 739
F.2d 87, 89 (2d Cir. 1984), reversing Department of the Air Force,
Griffiss Air Force Base, Rome, New York, 12 FLRA 198 (1983).
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 notwithstanding the terms of
the parties' collective bargaining agreement. Indeed, although the
procedures that an agency will follow in deducting and remitting the
regular and periodic dues to a union are matters subject to the duty to
bargain, an agency is obligated to honor the dues assignment of a unit
employee and make an allotment even if no agreement is in effect at the
time. U.S. Department of the Treasury, U.S. Mint, 35 FLRA 1095,
1099-100 (1990).
Thus, section 7115(a) of the Statute involves an employee's
individual right to authorize a deduction of dues and to have that
assignment honored. If no employee exercises this right, a union is
entitled to no dues allotment from an agency. In this case, there no
evidence or claim that the Respondent has refused to honor such
assignments from employees or make any appropriate allotments to the
Union. Indeed, a violation of section 7115(a) was not alleged in the
complaint. The only apparent contention is that because the Respondent
has refused to negotiate an agreement covering the procedures for
deducting and remitting such dues to the Union, the Union is entitled to
moneys that should have been withheld from employees had dues
withholding been in force.
As the deduction of dues is not dependent on any agreement between an
agency and a union, but, rather, is the result of authorizations from
individual employees to their employers, and because no violation of
section 7115(a) was alleged or found, we conclude that such a remedy is
not authorized under the Statute.
C. An Award of Attorney Fees Is Not Warranted
We conclude that the Union has not established that an award of
attorney fees is warranted. The Union does not explain on what grounds
an award of attorney fees should be granted. In this regard, the Union
does not even specify under what authority it seeks attorney fees.
With regard to the granting of attorney fees under the Equal Access
to Justice Act, 5 U.S.C. Section 504 (EAJA), the Authority's Rules and
Regulations provide that awards under that Statute are available only to
a respondent, other than the United States, who prevails against the
General Counsel in an unfair labor practice proceeding. See section
2423.1 of the Authority's Rules and Regulations. Clearly, as the Union
is a charging party, it is not entitled to an award of attorney fees
under EAJA. See United States Department of the Treasury, Internal
Revenue Service and Internal Revenue Service, Austin District, and
Internal Revenue Service Houston District, 23 FLRA 774, 781 (1986).
Under the Back Pay Act, 5 U.S.C. Section 5596, an award of attorney
fees must be based upon an award of backpay that corrects an improper or
unwarranted personnel action. Id. at 782. Because we have awarded no
backpay in this proceeding, attorney fees under the Back Pay Act are not
authorized. In particular, we concluded above that a prospective
bargaining order is appropriate in this case. Accordingly, we will deny
the Union's request for attorney fees.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Federal Deposit Insurance
Corporation shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the National Treasury
Employees Union, the exclusive representative of two units of its
employees certified on December 28, 1990, concerning the conditions of
employment of those employees.
(b) Refusing to negotiate in good faith with the National Treasury
Employees Union, the exclusive representative of two units of its
employees certified on December 28, 1990, concerning an agreement
covering the procedures for deducting and remitting the regular and
periodic dues assignments of employees to such exclusive representative.
(c) Otherwise refusing to accord the National Treasury Employees
Union its statutory status as the exclusive bargaining representative of
the two units of its employees certified on December 28, 1990.
(d) 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) Recognize the National Treasury Employees Union as the exclusive
representative in the following two appropriate bargaining units that
were certified on December 28, 1990, and, accord the National Treasury
Employees Union its statutory status as the exclusive bargaining
representative of the employees in these units:
All professional employees of the Federal Deposit Insurance
Corporation, Division of Liquidation, Division of Accounting and
Corporate Services and Legal Division (DOL) who are employed at
Division of Liquidation Regional Offices, Consolidated offices and
Liquidation sites nationwide, excluding all management officials,
supervisors and employees described in 5 U.S.C. Section
7112(b)(2), (3), (4), (6) and (7). All nonprofessional employees
of the Federal Deposit Insurance Corporation, Division of
Liquidation, Division of Accounting and Corporate Services and
Legal Division (DOL) who are employed at Division of Liquidation
Regional Offices, Consolidated offices and Liquidation sites
nationwide, excluding all management officials, supervisors and
employees described in 5 U.S.C. Section 7112(b)(2), (3), (4), (6)
and (7).
(b) Upon request, negotiate in good faith with the National Treasury
Employees Union about all conditions of employment of its employees in
the two units certified on December 28, 1990.
(c) Upon request, negotiate in good faith with the National Treasury
Employees Union concerning an agreement covering the procedures for
deducting and remitting the regular and periodic dues assignments of
employees in the two units certified on December 28, 1990, to such
exclusive representative.
(d) Accord the National Treasury Employees Union and the employees in
the two units certified on December 28, 1990, all rights and
entitlements provided for in the Statute.
(e) Post at all facilities where bargaining unit employees in the two
units certified on December 28, 1990, 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 by signed by the
Chairman of the Federal Deposit Insurance Corporation, 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.
(f) 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.
WE WILL NOT refuse to negotiate in good faith with the National
Treasury Employees Union, the exclusive representative of two units of
our employees certified on December 28, 1990, concerning the conditions
of employment of those employees.
WE WILL NOT refuse to negotiate in good faith with the National
Treasury Employees Union, the exclusive representative of two units of
our employees certified on December 28, 1990, concerning an agreement
covering the procedures for deducting and remitting the regular and
periodic dues assignments of employees to such exclusive representative.
WE WILL NOT otherwise refuse to accord the National Treasury
Employees Union its statutory status as the exclusive bargaining
representative of the two units of our employees certified on December
28, 1990.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL recognize the National Treasury Employees Union as the
exclusive representative in the following two appropriate bargaining
units that were certified on December 28, 1990, and, accord the National
Treasury Employees Union its statutory status as the exclusive
bargaining representative of the employees in these units:
All professional employees of the Federal Deposit Insurance
Corporation, Division of Liquidation, Division of Accounting and
Corporate Services and Legal Division (DOL) who are employed at
Division of Liquidation Regional Offices, Consolidated offices and
Liquidation sites nationwide, excluding all management officials,
supervisors and employees described in 5 U.S.C. Section
7112(b)(2), (3), (4), (6) and (7). All nonprofessional employees
of the Federal Deposit Insurance Corporation, Division of
Liquidation, Division of Accounting and Corporate Services and
Legal Division (DOL) who are employed at Division of Liquidation
Regional Offices, Consolidated offices and Liquidation sites
nationwide, excluding all management officials, supervisors and
employees described in 5 U.S.C. Section 7112(b)(2), (3), (4), (6)
and (7).
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union about all conditions of employment of our
employees in the two units certified on December 28, 1990.
WE WILL, upon request, negotiate in good faith with the National
Treasury Employees Union concerning an agreement covering the procedures
for deducting and remitting the regular and periodic dues assignments of
employees in the two units certified on December 28, 1990, to such
exclusive representative.
WE WILL accord the National Treasury Employees Union and the
employees in the two units certified on December 28, 1990, all rights
and entitlements provided for in the Statute.
(Activing)
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. Region, 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.
40 FLRA 763
40 FLRA NO. 62
Panama Canal Federation of Teachers and Department of Defense
Dependents Schools, Panama Region (Abrams, Arbitrator), Case No.
0-AR-1863 (Decided May 3, 1991)
7122(a)
ARBITRATION EXCEPTIONS
PANAMA CANAL
PANAMA CANAL TREATY
PANAMA CANAL ACT
22 U.S.C. 3671(a)(1)
DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT
20 U.S.C. 903(c)
DECISIONS OF THE COMPTROLLER GENERAL
The grievance arose over the Agency removing a number of teachers
from a retained salary schedule and placed on the DODDS salary schedule.
The Arbitrator found that the teachers had been properly placed on the
DODDS salary schedule and denied the grievance. The Authority concluded
that the Union failed to establish that the award is contrary to the
Panama Canal Treaty or the Panama Canal Act. Furthermore, the Authority
found that the Arbitrator's interpretation and application of the Act
was consistent with the "Blumenfeld-Shanker understanding," which
Congress was fully aware of and considered in enacting the Act. The
Authority also found that its view of the Treaty and the Act is
supported by decisions of the Comptroller General.
Case No. 0-AR-1863
PANAMA CANAL FEDERATION OF TEACHERS
(Union)
U.S. DEPARTMENT OF DEFENSE, DEPENDENTS SCHOOLS, PANAMA REGION
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an exception to an award of
Arbitrator Roger I. Abrams 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.
As a result of the Panama Canal Treaty, the Agency (DODDS) took over
the operation of the schools for American dependents in Panama. The
salary schedule for teachers who had been employed by the Canal Zone
Government Schools at the time the treaty was implemented in 1979
provided for higher rates than the DODDS salary schedule. When the
Agency took over the schools, the Canal Zone teachers were given special
pay retention when they were transferred to the Agency. When the Agency
removed a number of these teachers from the retained salary schedule and
placed them on the DODDS salary schedule, a grievance was filed. The
Arbitrator found that the teachers had been properly placed on the DODDS
salary schedule and denied the grievance.
We conclude that the Union fails to establish that the award is
deficient, and we will deny the exception.
As an ancillary matter to the negotiation of the Panama Canal Treaty
(the Treaty), the Agency took over the operation of the schools for
American dependents in Panama. When the Agency took over the schools,
the teachers who had been employed by the Canal Zone Government Schools
were transferred to the Agency. Because the salary schedule for Canal
Zone teachers provided for higher rates than the DODDS salary schedule,
the President of the American Federation of Teachers, Albert Shanker,
raised with the Secretary of the Army the issue of the wage and
retirement benefits of these teachers, who were described as
"transfer-of-function" teachers. In subsequent correspondence and
discussions with Deputy Under Secretary of the Army Michael Blumenfeld,
Shanker sought to retain the Canal Zone Schools' salary schedule and
prevent the imposition of the lower DODDS salary schedule. As support,
Shanker cited the following provision, which was included as Article X,
Section 2(b) of the Treaty ratified by Congress in 1979:
The terms and conditions of employment to be established will in
general be no less favorable to persons already employed by the
Panama Canal Company or Canal Zone Government prior to the entry
into force of this Treaty, than those in effect immediately prior
to that date.
Although Congress retained the ultimate power to set the pay policy,
Blumenfeld and Shanker reached an understanding (Blumenfeld-Shanker
understanding), which was considered by Congress in enacting legislation
implementing the Treaty. The understanding was summarized by Blumenfeld
in a memorandum for the record dated May 2, 1978. The memorandum
provided, in part, as follows:
To avoid a reduction in pay or a "pay freeze" such teachers will
retain their base salary schedule as it exists on the effective
date of the treaty until they reach pay comparability with the
DODDSS (sic) salary schedule. This retained base salary will be
increased by one-half of the dollar amount of the DODDSS (sic)
annual salary increase for the same class and step. Teachers will
also be granted their normal step increases on the retained
schedule and will receive the full dollar amount of the DODDSS
(sic) annual increase upon reaching step 15 of the retained
schedule, or when pay comparability is reached.
In addition, in a letter to Shanker dated February 24, 1978, concerning
sick leave and length of the school year for transfer-of-function
teachers, Blumenfeld stated: "We will now further agree to provide four
more days pay at each teacher's applicable daily rate until the teacher
is moved to the DOD worldwide teachers pay schedule." Award at 4
(quoting from Blumenfeld letter).
Secretary Blumenfeld also testified before Congress on the
understanding reached with the Union, as follows:
Because the Department of Defense Dependent Overseas School System
pay scales are significantly lower than the Canal Zone Government
scale, the Defense Department, the American Federation of Teachers
and the Department of the Army have agreed on a system to phase
transferring teachers into the DOD pay system over time. These
teachers will retain their base salary schedule as it exists on
the effective date of the treaty until the Defense School salary
schedule rises to meet it. But, to avoid a pay freeze, their
retained base salary will be increased by one-half of the dollar
amount of the annual salary increase for the same class and step.
They will also be given their normal step increases on the
retained schedule. We believe this to be a fair and equitable
agreement.
Id. at 4-5 (quoting Blumenfeld's testimony). The Union issued a public
statement complaining that Blumenfeld's testimony ignored the
understanding that all teachers on the top step of the retained salary
schedule would receive the full DODDS annual increase. The Union did
not complain about Blumenfeld's statement that the purpose of the
agreement was "to phase transferring teachers into the DOD pay system
over time." Id. at 4 (quoting from Blumenfeld's testimony).
In the Panama Canal Act, Congress restated Article X, Section 2(b) of
the Treaty, 22 U.S.C. Section 3671(a)(1), and addressed the pay of
transfer-of-function teachers, as follows:
Section 903(c) of title 20 shall not apply with respect to any
teacher who was employed by the Canal Zone Government school
system on September 30, 1979, and who was transferred from such
position to a teaching position which is under the Department of
Defense Overseas Dependent School System and the permanent duty
station of which is in the Republic of Panama, until the rates of
basic compensation established under section 903(c) of title 20
equal or exceed the rates of basic compensation then in effect for
teachers who were so transferred.
22 U.S.C. Section 3671(c)(1). In a subsequent appropriations bill,
Congress provided, as follows:
None of the funds appropriated by this Act or any other Act
appropriating funds for fiscal year 1980 or for subsequent fiscal
years shall be available to pay the basic compensation of an
individual employed on September 30, 1979, as a teacher or in a
teaching position with the Canal Zone Government who is
transferred to such a position in the Department of Defense in an
amount in excess of the greater of: (a) the amount of basic
compensation an individual with comparable experience and level of
education is entitled to receive pursuant to section 5(c) of the
Defense Department Overseas Teachers Pay and Personnel Practices
Act (20 U.S.C. 903(c)); or
(c) for fiscal year 1981 and subsequent fiscal years -- the
amount payable based on the rates of basic compensation in effect
(including the limitations contained in this section) on September
30th of the fiscal year preceding the fiscal year for which
payment is to be made, plus an amount equal to one-half of the
increase in basic compensation for the school year in progress on
October 1st in the fiscal year for which payment is to be made
compared to the basic compensation for the previous school year,
that an individual with comparable experience and level of
education is entitled to receive pursuant to section 5( c) of the
Defense Department Overseas Teachers Pay and Personnel Practices
Act (20 U.S.C. 903(c)).
Department of Defense Appropriations Act, 1980, Pub. L. No. 96-154,
Section 766, 93 Stat. 1139, 1163 (1979). The conferees on the
Appropriations Act explained their actions, as follows:
(B)y including this section in the bill the conferees reaffirm the
intent of the House report that the DOD school teachers in Panama
who were employed in the schools in the Panama Canal Zone prior to
October 1, 1979, should after fiscal year 1980 receive one-half
the pay raise approved for DOD school teachers until such time as
the average rate of pay for Canal Zone teachers transferred to the
DOD system is comparable to that of their counterparts in the
Overseas Dependents Schools system. The conferees also agreed that
in view of the significant wage differential between these
teachers and other teachers in the DOD system it was not equitable
or reasonable to provide full pay raises for teachers at the top
step of their grade, as the DOD negotiated Agreement has
stipulated, until pay rates are comparable.
125 Cong. Rec. H35455 (daily ed. December 11, 1979) (explanatory
statement of conferees). A later appropriations act revised these
provisions to provide full annual adjustments for transfer-of-function
teachers at the top step of the retained salary schedule.
In 1987, the pay rates under the retained salary schedule of a number
of transfer-of-function teachers, who had not reached the top step of
the retained salary schedule, were matched or exceeded by the pay rates
on the comparable DODDS salary schedule. The Agency took the position
that, in these cases, pay retention terminates and all future pay
adjustments are based on the DODDS salary schedule. Accordingly, the
Agency removed these transfer-of-function teachers from the retained
salary schedule and placed them on the DODDS salary schedule. A
grievance was filed disputing the Agency's actions. The grievance was
not resolved and was submitted to arbitration.
Pursuant to their collective bargaining agreement, each party
obtained interpretations from its proponent regarding the pay-setting
policy for transfer-of-function teachers for submission to the
Arbitrator. The Agency's proponent, the Assistant Secretary of the Army
(Civil Works), interpreted the pay-setting policy as requiring
absorption of the teachers into DODDS pay schedule as quickly as
possible without reducing their pay or implementing a pay freeze. In
the Assistant Secretary's view, this would happen as soon as pay
comparability was reached between the DODDS pay schedule and the
teacher's salary. The Union's proponent, National Union President
Shanker, issued a contrary interpretation. He maintained that the
intention of the pay-setting policy was that teachers would not be
adversely affected by the implementation of the treaty, which clearly
mandated that the terms and conditions of employment would not be less
favorable to persons who had been employed prior to the Treaty's
effective date.
The Arbitrator stated the issue to be whether the Agency wrongfully
removed the transfer-of-function teachers from the retained salary
schedule and placed them on the DODDS salary schedule. The Arbitrator
noted that the Blumenfeld-Shanker understanding and the subsequent
legislation implementing the Treaty had the purpose of protecting the
preferred position the transfer-of-function teachers had under their
salary schedule prior to the Agency's assumption of the operation of the
schools. The Arbitrator acknowledged that under the terms of the
Treaty, the teachers "in general" were "not (to be) adversely affected,"
but questioned what that meant. Award at 11. The Arbitrator stated
that as the record reflected, for some teachers the retained salary
schedule and the DODDS salary schedule provided the same rate of pay.
In the Arbitrator's view, this constituted "pay comparability," and the
key question became what happens after pay comparability has been
reached. Id. at 12. The Arbitrator noted that the Union had argued
that these teachers could not be converted to the DODDS salary schedule
prior to reaching the top of the retained schedule because they would be
penalized by losing a large incremental increase. The Union had
contended that such action would be contrary to the Treaty, which
provided for terms and conditions of employment that would be no less
favorable than those in existence immediately prior to the
implementation of the Treaty.
The Arbitrator determined that the Union had the burden of proof and
failed to prove its position. The Arbitrator found that there was ample
evidence that teacher movement from the retained pay schedule to the
DODDS schedule was contemplated. The Arbitrator noted that Blumenfeld's
congressional testimony stated as much when he said that the Department
of the Army and the Union had agreed on a system to phase transferring
teachers into the DODDS pay system over time. The Arbitrator further
noted that although Shanker had objected to parts of Blumenfeld's
testimony, Shanker had not objected to this clear reference to the
elimination of the retained salary schedule. The Arbitrator also noted
that Blumenfeld had indicated in his February 24, 1978, letter to
Shanker, without subsequent objection by Shanker, that teachers would be
moved to the DODDS salary schedule. In the Arbitrator's view, this
suggested that Blumenfeld was restating their understanding. However,
the Arbitrator was most persuaded by the stated purpose of the
Blumenfeld-Shanker understanding, which was that transfer-of-function
teachers would retain their base salary schedules "until they reach pay
comparability with the (DODDS) salary schedule." Id. at 13 (quoting
Blumenfeld's memorandum for the record dated May 2, 1978). The
Arbitrator found that a reasonable interpretation of this language was
that when a teacher reaches pay comparability, the teacher is to be
placed on the DODDS salary schedule, just as the Agency had done.
Accordingly, the Arbitrator denied the grievance.
In denying the grievance, the Arbitrator rejected the Union's
argument that these teachers were being penalized. He found no penalty
because he found that the Agency's actions were what was intended and
all to which the teachers were entitled. The Arbitrator also rejected
the Union's reliance on an affidavit from the local Union president,
stating that there was never an agreement to transfer to the DODDS
salary schedule, and a memorandum from the Agency's director of schools
in Panama, which stated, as part of the grievance procedure, that he
agreed with the position of the Union. The Arbitrator rejected the
reliance on the affidavit because the local Union president was not a
"proponent" of the pay-setting policy. Although the Arbitrator found
the school director's memorandum troubling, he similarly rejected
reliance on the memorandum because the director had not been a
"proponent" of the pay-setting policy. He also rejected reliance on the
memorandum because the director had determined that the Union's approach
would further labor-management peace in the face of an interunion
rivalry. The Arbitrator found that such a factor cannot be
determinative of what was intended in 1979. In the Arbitrator's view,
the parties intended that the Agency could act as it had in moving
transfer-of-function teachers to the DODDS pay schedule when they
reached pay comparability.
A. The Union's Exception
The Union contends that the award is contrary to the Panama Canal
Treaty and the Panama Canal Act (the Act), implementing the Treaty.
The Union notes that because the Blumenfeld-Shanker understanding
preceded the ratification of the Panama Canal Treaty and the statutory
implementation of the Treaty, the Treaty and the Act govern the pay
policy for the transfer-of-function teachers. The Union argues that the
Arbitrator misinterpreted the mandate of Article X, Section 2(b) of the
Treaty and 22 U.S.C. Section 3671(a)(1) that subsequent terms and
conditions of employment would be no less favorable to persons already
employed by the Canal Zone Government. The Union also argues that the
Arbitrator misinterpreted the intent of 22 U.S.C. Section 3671(c)(1)
that transfer-of-function teachers be exempt from the DODDS salary
schedule "until the rates of basic compensation established under
section 903(c) of title 20 equal or exceed the rates of basic
compensation then in effect for teachers who were so transferred." The
Union asserts that although the Arbitrator recognized that the purpose
of the Act was to protect transfer-of-function teachers, the award
denies the teachers such protection.
The Union maintains that a large incremental increase at the top step
of the retained salary schedule is lost if teachers are converted to the
DODDS salary schedule prior to reaching the top step. The Union argues
that by denying these transfer-of-function teachers the opportunity to
receive the incremental increase at the top step of the retained
schedule, the award is contrary to Article X, Section 2(b) of the Treaty
and the intent of the Act. The Union claims that the continued
narrowing of the pay gap between the top step of the DODDS schedule and
the retained schedule supports its position that pay comparability is
reached when there is parity between the top steps of each schedule.
The Union also claims that the concurrence with the Union's position by
the Agency's school director should be a strong indication that the
parties were in agreement as to the interpretation and application of
the Blumenfeld-Shanker agreement until higher Agency authority forced
arbitration.
The Union argues that its position is supported by the decision of
the Comptroller General in Comp. Gen. No. B-205126 (unpublished) (Feb.
28, 1983). The Union notes that in that decision, the Comptroller
General determined that firefighters employed in the Canal Zone
continued to be entitled to overtime pay under the Fair Labor Standards
Act by virtue of 22 U.S.C. Section 3671(a)(1) because a denial of that
pay would have significantly impaired their terms and conditions of
employment contrary to the Treaty and the Act. The Union contends that,
similarly, the award is contrary to the Treaty and the Act by permitting
the premature integration of the retained salary schedule with the DODDS
salary schedule when comparability had not yet been reached at the
highest steps.
B. The Agency's Opposition
The Agency contends that the Union's exception constitutes nothing
more than an attempt to relitigate this case before the Authority and
provides no basis for finding the award deficient. The Agency claims
that the Union's exception is flawed because it presumes that both
Article X, Section 2(b) of the Treaty and 22 U.S.C. Section 3671(a)(1)
provided for pay increases. The Agency argues that these provisions
ensured that pay rates in effect in 1979 would not be reduced. In the
Agency's view, they did not prevent a pay freeze. The Agency maintains
that it required subsequent appropriations actions by Congress to
provide for any annual adjustments in salary for transfer-of-function
teachers. The Agency notes that without those subsequent actions, these
teachers would have received only step increases and teachers at the top
level of the schedule would have received no increases at all. The
Agency argues that, therefore, the Union's contention that the award is
contrary to the Treaty and the Act by denying the top step increase is
without merit.
The Agency further argues that the Comptroller General's decision
cited by the Union offers no support for its exception. The Agency
maintains that the decision simply demonstrates that the intent of
Congress was to ensure that there were no reductions in terms and
conditions of employment. The Agency claims that other unpublished
decisions of the Comptroller General, for example, B-205126, November
29, 1983; B-205126, June 17, 1982, indicate that the "grandfather"
provisions of the Treaty and the Act were not intended to cover
situations where employees were earning more than before the Treaty was
implemented. The Agency argues that, therefore, the terms and
conditions of employment of transfer-of-function teachers with respect
to basic pay cannot be considered to be generally less favorable than
before the Treaty and the Act because there had been no reduction in
their pay.
We conclude that the Union fails to establish that the award is
contrary to the Panama Canal Treaty or the Panama Canal Act.
The pay of these transfer-of-function teachers was specifically
addressed in the Panama Canal Act, as set forth in 22 U.S.C. Section
3671(c)(1). The Arbitrator found that section 3671(c)(1) did not
prevent the removal of the transfer-of-function teachers from the
retained salary schedule and placement on the DODDS schedule. We find
that the Union in its exception fails to establish otherwise.
We conclude that the express language of section 3671(c)(1) supports
the Arbitrator's award. Stated affirmatively, section 3671(c)(1)
provides that the DODDS salary schedule shall apply to a
transfer-of-function teacher when the DODDS salary schedule equals or
exceeds the rates of compensation under the retained salary schedule.
The Arbitrator held that the Agency properly applied the DODDS salary
schedule to the transfer-of-function teachers involved in this case when
the DODDS salary schedule equaled or exceeded their rate of compensation
under the retained salary schedule and properly removed them from the
retained salary schedule. In our view, the Union has failed to
demonstrate in what manner the award permitting the Agency's action is
contrary to section 3671(c)(1) so as to provide a basis for finding the
award deficient.
Furthermore, we find that the Arbitrator's interpretation and
application of section 3671(c)(1) is consistent with the
Blumenfeld-Shanker understanding, which Congress was fully aware of and
considered in enacting section 3671(c)(1). Deputy Under Secretary of
the Army Michael Blumenfeld specifically testified to Congress on the
understanding that had been reached. He stated that "the Defense
Department, the American Federation of Teachers and the Department of
the Army have agreed on a system to phase transferring teachers into the
DOD pay system over time." Award at 4 (quoting testimony). Moreover,
this testimony accurately reflected the memorandum of record of May 2,
1978, in which Blumenfeld summarized the understanding and agreement on
the pay-setting policy for transfer-of-function teachers. The
memorandum stated that transfer-of-function teachers would retain their
salary schedule until "they reach comparability with the DODDS salary
schedule." The Arbitrator found that, pursuant to a reasonable reading
of the Blumenfeld-Shanker understanding, the transfer-of-function
teacher at pay comparability is removed from the retained salary
schedule and that the Union had failed to persuade him otherwise.
We agree with the Arbitrator that a reasonable reading of the
Blumenfeld-Shanker understanding permitted the Agency to move the
transfer-of-function teachers involved to the DODDS salary schedule. We
find that the Union's contentions to the contrary fail to establish that
the award is contrary to law. The Union's contentions constitute
nothing more than disagreement with the Arbitrator's interpretation and
application of the understanding and agreement and provide no basis for
finding the award deficient. See National Treasury Employees Union,
Chapter 243 and United States Department of Commerce, United States
Patent and Trademark Office, Arlington, Virginia, 37 FLRA 470 (1990)
(disagreement with the arbitrator's interpretation of a memorandum of
understanding and the agency's obligations under that memorandum of
understanding provided no basis for finding that the arbitrator
misinterpreted law).
Having found that section 3671 did not prevent the placement of these
transfer-of-function teachers on the DODDS salary schedule, we
additionally find that such placement did not conflict with the Treaty
or the Act. As previously noted, Article X, Section 2(b) of the Panama
Canal Treaty provides:
The terms and conditions of employment to be established will in
general be no less favorable to persons already employed by the
Panama Canal Company or Canal Zone Government prior to the entry
into force of this Treaty, than those in effect immediately prior
to that date.
22 U.S.C. Section 3671(a)(1) similarly provides that terms and
conditions of employment, including specifically rates of basic pay,
shall generally be no less favorable after the implementation of the
Treaty. The Union argues in its exception that, by denying the
transfer-of-function teachers involved the opportunity to receive the
large incremental increase at the top step of the retained schedule, the
award is contrary to Article X, Section 2(b) of the Treaty and section
3671(a)(1). We disagree. In our view, Article X, Section 2(b) of the
Treaty and section 3671(a)(1) guarantee that terms and conditions of
employment will be generally no less favorable than prior terms and
conditions of employment. These provisions ensured that the pay rates
of the transfer-of-function teachers would not be reduced and prevented
the Agency from imposing a salary schedule on transfer-of-function
teachers providing for rates of basic pay lower than the rates they were
paid prior to implementation of the Treaty. As noted by the Agency in
its discussion of subsequent appropriations acts, section 3671(c)(1)
effectively froze the pay rates of transfer-of-function teachers because
it provided for no annual increases to the retained salary schedule.
Annual increases were only subsequently provided in appropriations acts.
Thus, the Union fails to support its position that Article X, Section
2(b) of the Treaty and section 3671(a)(1) guarantee that
transfer-of-function teachers will be granted the opportunity to receive
the incremental increase at the top step of the retained salary schedule
and prevent the Agency from imposing on transfer-of-function teachers
the DODDS salary schedule providing for rates of basic pay that are
higher than the teachers were paid prior to implementation of the
Treaty.
We also find that our view of Article X, Section 2(b) of the Treaty
and section 3671(a)(1) is supported by the decisions of the Comptroller
General, including Comp. Gen. No. B-205126 (unpublished) (Feb. 28,
1983), cited by the Union. These decisions indicate that Article X,
Section 2(b) of the Treaty and section 3671(a)(1) were intended to
guarantee that terms and conditions of employment would be generally no
less favorable than prior terms and conditions of employment. Comp.
Gen. No. B-205126 (unpublished) (Nov. 29, 1983). These provisions were
intended to ensure that there would be no reductions in the terms and
conditions of employment as a result of the implementation of the
Treaty. Comp. Gen. No. B-205126 (unpublished) (Feb. 28, 1983). They
were not intended to apply to situations where the terms and conditions
of employment were more favorable after the implementation of the
Treaty. Comp. Gen. No. B-205126 (unpublished) (Nov. 29, 1983). In our
view, the terms and conditions of employment of the transfer-of-function
teachers with respect to rates of basic pay under the DODDS salary
schedule cannot be considered to be generally less favorable than before
the Treaty. Consequently, we find that the Union provides no basis for
finding the award contrary to the Treaty or section 3671(a)(1).
Accordingly, we will deny the Union's exception.
The Union's exception is denied.
40 FLRA 690
40 FLRA NO. 61
Dept. of Transportation and Federal Aviation Administration and
Professional Airways Systems Specialists, Case No. 3-CA-70647, 70648,
70749, 70650 and 70651 (Decided May 3, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
WAIVER OF TIME LIMITS
SEVERE WEATHER
NEGOTIATIONS OVER AND IMPLEMENTATION OF DRUG TESTING
CHANGE IN CONDITIONS OF EMPLOYMENT
LEVEL OF RESPONSIBILITY FOR VIOLATION
DECLARATION OF NONNEGOTIABILITY
COMPELLING NEED
DRUG TESTING GUIDELINES
TIME, TRAVEL AND PER DIEM TO ATTEND DRUG RELATED TRAINING
URINE SAMPLE TESTING
STATUS QUO ANTE REMEDY
PROSPECTIVE BARGAINING ORDER
An initial procedural issue concerned Respondent's request for a
waiver of the expired time limit for the filing of an opposition and
cross-exceptions, the request for waiver being based on "unanticipated
severe weather" and a "concern to ensure that employees reach home . .
. safely on Thanksgiving eve." The Authority concluded that the onset of
bad weather at the eleventh hour of a second extension of time does not
present an extraordinary circumstance that justifies waiver of an
expired time limit. Therefore, the Authority did not consider the
Respondent's opposition and cross-exceptions.
The consolidated complaint alleged that Respondent FAA violated
7116(a)(1), (5) and (8) by failing and refusing to provide PASS with
information to which PASS was entitled and by refusing to negotiate with
PASS over the impact and implementation of DOT drug testing regulations,
and unilaterally implementing the regulations. It is further alleged
that Respondent DOT violated 7116(a)(1) and (5) by interfering with the
bargaining relationship between FAA and PASS by precluding bargaining
over the impact and implementation of DOT's regulations notwithstanding
the fact that negotiations concerning the regulations had not been
concluded.
In the absence of timely exceptions, the Authority adopted the
Judge's conclusion that FAA violated 7116(a)(1), (5) and (8) by refusing
to provide a sanitized listing of drug-related disciplinary and adverse
actions that had occurred over the past three years in the bargaining
unit and for which FAA had been upheld in either grievance or MSPB
proceedings.
On the issue of changes in conditions of employment, the Authority
concluded that the record did not establish that any of the components
of the drug testing program other than random drug testing in fact
constituted changes in working conditions. The Authority then concluded
that on or about September 8, 1987, employees in the unit were subject
to a change in their conditions of employment by virtue of the
implementation of random drug testing, a highly significant component of
the overall drug-testing workplace program set forth in the DOT
regulations.
On the issue of whether DOT and/or FAA violated the Statute as a
consequence of the change in conditions of employment, the Authority
noted that recognition rested with FAA and DOT had no duty to bargain
concerning the issuance of internal directives to its subordinate levels
regarding the drug-free workplace program. Further, there was no
showing that DOT ordered FAA to implement the program while negotiations
with PASS were still pending. Therefore, FAA was the level which
unilaterally implemented the regulation without meeting its bargaining
obligation.
On the issue of the allegation centering on FAA's declaration that
certain PASS proposals were nonnegotiable, the Authority first addressed
the applicability of the Aberdeen principles where a compelling need
assertion has been withdrawn. It was concluded that, generally, where a
compelling need assertion is raised by an agency as a bar to
negotiations of a union proposal the agency has no duty to bargain over
the subject proposal until the issue has been resolved in a 7117(b)
proceeding. If an agency withdraws an allegation, the dispute is
effectively moot. In the instant case, the Respondent's withdrawal, in
the statement of position, of the compelling need allegation as to
certain proposals effectively resolved the issue for the purposes of
7117(b). From the point at which the compelling need allegations were
withdrawn, FAA had an obligation to bargain over the proposals and any
alleged refusal to bargain becomes subject to review in a ULP
proceeding.
The Authority reasoned that because, under Aberdeen, FAA had no duty
to bargain over the four proposals at issue as long as a compelling need
allegation existed, FAA's refusal to bargain over the proposals during
that period could not constitute a ULP. Further, there was no basis in
the record for concluding that FAA refused to bargain over those
particular proposals once the compelling need allegation was withdrawn.
Consequently, the Authority dismissed the allegation that a violation
occurred as the result of any refusal to bargain over specified
proposals.
As to other proposals, which FAA refused to bargain over on grounds
other than compelling need, the Authority noted that the Agency acted
its peril when if implemented the changes without bargaining over
proposals that might be determined to be negotiable. While the Judge
relied on law as it existed at the time of the alleged refusal to
bargain occurred, the Authority noted that it applies the law at the
time of its decision. The Authority thereafter addressed the
negotiability of the proposals at issue.
Proposal 3's first sentence, which provided that the employer shall
use the Secretary of Health and Human Services Scientific and Technical
Guidelines for Drug Testing Programs, was found to be a negotiable
appropriate arrangement. The second sentence, which provided that all
drug testing will be performed by an independent contract laboratory
certified by the Department of Defense, was found to be nonnegotiable
because it is inconsistent with the Drug Testing Guidelines.
Proposal 11, which provides that the employer shall provide all
designated representatives of the Union the opportunity to attend drug
related training sponsored by the employer, and the training shall be on
official time, including travel and per diem, was found to be negotiable
under 7131(d), noting that this proposal does not concern training that
is encompassed within management's right to assign work.
Proposal 22C, which provides that the employee shall be given a
sample of his/her own specimen so that a separate test can be
administered at a laboratory of the employee's own choosing and the
employee shall be allowed official time to deliver such sample to a
laboratory, was determined to be compelling need issue that cannot be
resolved in a ULP proceeding.
Accordingly, FAA violated section 7116(a)(1) and (5) when it declared
Proposal 11 and the first sentence of Proposal 3 of PASS nonnegotiable
and then implemented a change in conditions of employment.
As to remedy, the Authority applied the Federal Correctional
Institute criteria to the determination of the appropriateness of a
status quo ante remedy, and concluded that it was not. Noted
specifically was the issue as to whether such a remedy would disrupt or
impair the efficiency and effectiveness of agency operations. The
Authority noted that the Government has a compelling interest in
maintaining air safety. "In view of the paramount and incontrovertible
need to ensure the integrity of the aviation safety and control system,
we conclude that to require a return to the status quo ante in this case
would be detrimental to the efficiency and effectiveness of FAA's
operations." Accordingly, to remedy the ULP, the Authority issued a
prospective bargaining order and required the FAA to post an appropriate
remedial notice.
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
U.S. DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATION
(Respondents)
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO
(Charging Party)
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 General Counsel and the Charging Party. The Respondents
filed an opposition to the exceptions of the General Counsel and
Charging Party and cross-exceptions to the Judge's Decision.
The Respondents' opposition and cross-exceptions were, however,
untimely and will not be considered. On September 20, 1989, the General
Counsel and Charging Party filed exceptions to the Judge's Decision. By
motion dated October 2, 1989, the Respondents' representative requested
an extension of time in which to file an opposition and
cross-exceptions. In response to that request, Respondents were granted
until November 9, 1989, in which to file. On November 6, 1989,
Respondents filed a motion for an additional extension of time until
November 22, 1989, in which to file an opposition and cross-exceptions.
This request was granted. Respondents subsequently filed an opposition
and cross-exceptions dated November 27, 1989. That filing was
accompanied by a letter dated November 27, 1989, which stated:
Respondents made every reasonable effort to comply (with the
November 22 filing deadline); however, the unanticipated severe
weather in the late afternoon and early evening of November 23
(sic), and our concern to ensure that employees reached home (in
one case, an out of state location) safely on Thanksgiving eve,
resulted in our decision, in these circumstances, to file the
documents today.
Under section 2429.23(b) of the Authority's regulations, the
Authority may waive expired time limits in extraordinary circumstances.
However, in our view, the onset of bad weather at the eleventh hour of a
second extension of time does not present an extraordinary circumstance
that justifies waiver of an expired time limit. See Department of the
Treasury, U.S. Customs Service and U.S. Customs Service, Region IX,
Chicago, Illinois, 34 FLRA 76 (1989). Therefore, we will not consider
the Respondents' opposition and cross-exceptions.
The consolidated complaint alleges that: Respondent Federal Aviation
Administration (FAA) violated section 7116(a)(1), (5) and (8) of the
Federal Service Labor Management Relations Statute (the Statute) by
failing and refusing to provide the Professional Airways Systems
Specialists (PASS or Union), the exclusive representative of two
bargaining units of FAA employees, with information to which PASS was
entitled under section 7114(b)(4) of the Statute; Respondent FAA
violated section 7116(a)(1) and (5) by refusing to negotiate with PASS
over the impact and implementation of Department of Transportation (DOT)
Order 3910.1, Drug-Free Departmental Workplace, and by unilaterally
implementing DOT Order 3910.1; and Respondent Department of
Transportation (DOT) violated section 7116(a)(1) and (5) by interfering
with the bargaining relationship between FAA and PASS by precluding
bargaining over the impact and implementation of DOT Order 3910.1 and by
directing the implementation of DOT Order 3910.1 notwithstanding the
fact that negotiations concerning the Order had not been concluded.
The Judge found that Respondent FAA had violated section 7116(a)(1),
(5) and (8) of the Statute by failing and refusing to provide
information to which the Union was entitled under section 7114(b)(4) of
the Statute; and that Respondent FAA violated section 7116(a)(1) and
(5) of the Statute by declaring certain PASS proposals nonnegotiable and
then implementing random drug testing in the PASS bargaining units. The
Judge found that no violation had occurred with respect to the remaining
allegations and recommended that those portions of the complaint be
dismissed.
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. The rulings are affirmed. After consideration of the
Judge's Decision, the exceptions of the General Counsel and Charging
Party, and the entire record, we adopt the Judge's findings and
conclusions only to the extent consistent with our decision.
FAA is one of nine operating administrations within DOT. At all
times material herein PASS has been the exclusive representative of two
bargaining units within FAA: (1) the "AF" unit consisting of
approximately 6500 employees and composed primarily of electronic
technicians and (2) the "AVN" unit consisting of approximately 350-400
employees and composed of, among others, pilots, co-pilots and flight
inspectors. At all times material herein, PASS has held national
consultation rights with DOT pursuant to section 7113 of the Statute.
Prior to 1987, FAA had a policy on substance abuse by its employees.
G.C. Exhs. 3A and 3B. This policy included provisions for
rehabilitation and/or discipline where there was "credible evidence" of
use of illicit drugs, alcohol abuse, or other substance abuse. G.C.
Exh. 3B. It also included drug screening for substance abuse as part of
the annual physical examination required for some employees. G.C. Exhs.
3A and B. While some employees in the AVN unit were subject to
screening in conjunction with their periodic medical examinations, none
of the employees in the AF unit were subject to such screening. The
record shows, however, that FAA employees, generally, had been subject
to testing on the basis of "probable cause" (Tr. 267) or "reasonable
cause" (Tr. 335) prior to 1987.
On January 21, 1987, the Secretary of Transportation issued a
memorandum announcing DOT's program for a drug-free workplace, which was
being developed and implemented in compliance with Executive Order
12564, "Drug-Free Federal Workplace." As recounted in the Judge's
Decision, PASS was consulted by DOT during the months that followed
concerning the development of the program that culminated in the
issuance of DOT Order 3910.1, Drug-Free Departmental Workplace, dated
June 29, 1987. By letter dated July 1, 1987, FAA provided PASS with a
copy of a "60-day general notice," which advised employees that the drug
testing component of the DOT drug program would commence no sooner than
60 days after the date of the notice. G.C. Exhs. 13 and 15. Under this
drug testing program, employees in "critical safety and security
positions," as well as employees in positions requiring a security
clearance of "Top Secret" or higher, would be subject to
pre-employment/pre-appointment, periodic, random, reasonable suspicion,
follow-up, accident or unsafe practice, and voluntary testing. G.C.
Exh. 13. All other civilian employees would be subject to reasonable
suspicion, accident or unsafe practice testing, and voluntary testing.
Id.
As set forth in the Judge's Decision, PASS and FAA representatives
had several conversations during July in which PASS repeatedly expressed
its desire to negotiate over the impact and implementation of the drug
testing program. There were also discussions between PASS and FAA
concerning the desirability of handling the negotiations over drug
testing in conjunction with national contract negotiations. FAA took
the position that the negotiations concerning drug testing should be
handled separately from the national contract negotiations; PASS took
the position that they should be combined. By letter dated August 3,
1987, PASS reiterated both its demand to bargain prior to the
implementation of the drug screening program and its position that it
would be "most efficient to negotiate the particulars of any drug
screening program" during contract talks for the AVN and AF units. G.C.
Exh. 16.
During a telephone conversation on August 6 or 7, 1987, an FAA
representative advised a PASS representative that the "30-day notice,"
which advised employees who were subject to random drug testing that
random testing was to commence no sooner than 30 days from the date of
the notice, was being issued. A copy of the 30-day notice was provided
to PASS by both DOT and FAA with cover letters dated August 7, 1987,
which indicated that distribution of the notice to covered employees
would begin on August 7. While the record establishes that distribution
of the notice within FAA began around that date, the record does not
establish when the first employee in either of the PASS bargaining units
actually received the notice. In a letter dated August 12, 1987, FAA
advised PASS that it did not agree that negotiations concerning drug
testing should occur in the context of national contract negotiations.
In that letter FAA also advised PASS that the drug testing program was
scheduled to go into effect as early as September 8 and requested that
PASS submit any proposals that it had as soon as possible.
On or about August 19, 1987, FAA and PASS started negotiations for a
national contract. Subsequently, on or about August 25, 1987, PASS
complained of an incident that had been reported to it in which a list
of employees subject to random testing had been publicized. At that
point, an FAA representative advised PASS that, although the drug
testing program was scheduled to commence on September 8, actual testing
of employees in the PASS unit would likely not begin until later in
September because of the prerequisite of the issuance of the 30-day
notice. /2/ The parties recessed so that PASS could prepare proposals
concerning drug testing. By letter dated August 26, 1987, PASS sent a
request to FAA for information including a complete listing of all
incidents of drug-related disciplinary or adverse actions that had
occurred in the past three years in the PASS bargaining units and for
which the employer had been upheld in either a grievance or an MSPB
proceeding. The request specified that the information "should be
sanitized in accordance with any Privacy Act provisions." G.C. Exh. 20.
FAA subsequently denied the request for this information.
On August 27, 1987, the parties resumed bargaining and PASS presented
its first set of drug testing proposals, which are referred to as PASS
1. The parties then recessed so that FAA could study the proposals and
discuss them with DOT. When the parties again resumed negotiations on
September 3, an FMCS mediator was present at the request of PASS. FAA
stated that the first set of PASS proposals were nonnegotiable and PASS
presented a second set, which are referred to as PASS 2. After studying
those proposals, FAA advised PASS that they raised the same
negotiability problems as PASS 1. PASS provided FAA with a written
request for written allegations of nonnegotiability. PASS then
presented a third set of proposals, which are referred to as PASS 3.
The parties met the next day, September 4, and FAA provided PASS with
a written allegation of nonnegotiability declaring some of the proposals
in PASS 2 and PASS 3 nonnegotiable based on conflict with DOT Order
3910.1, for which the Agency claimed a compelling need existed, and some
nonnegotiable based on other grounds. FAA agreed that a number of the
proposals in PASS 2 and PASS 3 were negotiable and the parties discussed
those at the meeting that day. While the parties agreed that they were
not at impasse, PASS stated that it was going to seek assistance from
the Federal Service Impasses Panel (FSIP) and presented FAA with a
previously prepared package of material to invoke the assistance of the
FSIP. FAA declined to join PASS in requesting assistance from FSIP.
The next meeting was scheduled for September 16.
PASS on several occasions requested that the scheduled September 8
implementation date be postponed. FAA consistently took the position
that it did not have the authority to change the September 8
implementation date because that date was within the control of DOT, not
FAA. While the record establishes that FAA made some inquiry to DOT
during the time when negotiations were going on concerning the
possibility of a postponement if negotiations were not completed, the
record does not establish that FAA made a specific request for a
postponement once it was clear that negotiations would not be completed
by September 8. Rather, FAA representatives expressed the view that
implementation would not occur in the bargaining unit until later in
September when individual unit members would become eligible for random
testing based on the expiration of the 30-day period from the point at
which the 30-day notices were issued to them. By letter dated September
8, PASS requested the Secretary of Transportation to intercede and order
FAA to cease and desist from implementing the drug testing program in
the PASS bargaining unit until bargaining had been completed.
The random testing program began within DOT during the week of
September 8, although no employees in the PASS bargaining units were
actually tested until the week of September 28.
PASS and FAA met again on September 16 with an FMCS mediator present.
After a caucus and lunch break, PASS representative Long returned to
the meeting and announced that PASS representative Johannssen, who had
attended the previous sessions, including the morning session on the
16th, would not meet with FAA. The FMCS mediator, after speaking with
Johannssen privately, advised FAA that he was unable to persuade
Johannssen to return and he (the mediator) would attempt to arrange
another meeting. The meeting adjourned and no further meetings were
held.
A. The Information Request
The Judge found that FAA violated section 7116(a)(1), (5) and (8) of
the Statute by failing to furnish PASS with a complete listing of all
drug-related disciplinary/adverse action incidents that had occurred
over the past three years in the PASS bargaining units for which FAA had
been upheld in either a grievance or MSPB proceeding. The Judge
concluded that the information requested did not constitute guidance,
counsel or training and was data that was normally maintained by FAA in
the regular course of business. The Judge further concluded that
disclosure of the requested information was not prohibited by the
Privacy Act and that the requested information was necessary within the
meaning of section 7114(b)(4) of the Statute.
B. Negotiations Over and Implementation of Drug Testing
The Judge found that the record established that random drug testing
was the only aspect of the drug testing program that involved a change
in working conditions for employees in the PASS bargaining units. He
further found that the record did not establish that random drug testing
was implemented for employees in the PASS bargaining units prior to
September 28, the date on which the first bargaining unit employee was
actually tested. The Judge determined that PASS had abandoned
bargaining on September 16. He concluded that because the
implementation date occurred after PASS had abandoned bargaining, FAA
had met its bargaining obligations prior to the implementation of random
drug testing in the PASS bargaining units. Moreover, he found that DOT
could have and was prepared to postpone testing of unit members at the
request of FAA. Consequently, he found that neither DOT nor FAA had
violated the Statute based solely on the implementation of random drug
testing in the PASS bargaining units.
The Judge concluded, however, that FAA violated section 7116(a)(1)
and (5) by its actions in declaring certain PASS proposals nonnegotiable
and then implementing random drug testing in the PASS bargaining units.
Specifically, he found that at the time they were declared
nonnegotiable, Proposals 3 and 22C /3/ of PASS 2 were negotiable. He
further found that Proposal 11 of PASS 2 was negotiable. /4/ He
concluded that FAA erred in declaring them nonnegotiable and violated
section 7116(a)(1) and (5) of the Statute by doing so and then
implementing random drug testing in the PASS bargaining units. As to
those proposals that FAA declared nonnegotiable based on an asserted
conflict with an Agency regulation for which a compelling need exists,
the Judge found that they were not properly before him, based on the
Supreme Court's decision in FLRA v. Aberdeen Proving Ground, Department
of the Army, 108 S. Ct. 1261 (1988) (Aberdeen). He concluded that this
was true even with respect to four proposals (Proposals 18A, 22E, 23 and
30A of PASS 2) /5/ where the allegation of nonnegotiability had been
withdrawn in the statement of position filed by DOT in a companion
negotiability proceeding, which has been docketed by the Authority as
Case No. 0-NG-1456. The Judge found that because FAA, not DOT, was
responsible for the implementation of the drug testing program in the
PASS units, it, rather than DOT, was responsible for the violation of
section 7116(a)(1) and (5) as a consequence of the declaration that
Proposals 3, 11 and 22C of PASS 2 were nonnegotiable and the subsequent
implementation of random drug testing in the PASS units.
The Judge concluded that a status quo ante remedy was not appropriate
based on the nature of the unfair labor practice and the fact that the
random drug testing program involves the interest and safety of the
public. As a remedy, the Judge recommended: a cease and desist order;
that FAA be required to provide PASS with a complete list, in sanitized
form and to the extent permitted by law, of all incidents of
drug-related disciplinary or adverse actions that have occurred over the
past three years in the PASS bargaining units in which FAA has been
upheld in either a grievance or MSPB proceeding; a bargaining order;
and a posting of a notice.
A. General Counsel's Exceptions
The General Counsel (GC) excepts to several of the Judge's
conclusions. First, the GC excepts to the Judge's conclusion that
Proposals 18A, 22E, 23 and 3A of PASS 2 were not properly before him
despite DOT's subsequent withdrawal of the original assertion of
nonnegotiability. The GC argues that the subsequent withdrawal rendered
the negotiability appeal moot and that those four proposals are ripe for
review in the unfair labor practice proceeding.
Second, the GC excepts to the Judge's conclusion that neither FAA nor
DOT violated section 7116(a)(1) and (5) of the Statute by unilaterally
implementing the DOT drug testing program. The GC contends that the
Judge's conclusion in this regard is based on "three interdependent
conclusions" that the GC contends are erroneous. GC's Brief at 19.
Specifically, the GC asserts that the Judge erred in concluding that
random testing was the only aspect of the DOT drug testing program that
constituted a change in working conditions. Rather, the GC contends,
the DOT drug testing program consisted of several components, such as
random, periodic, reasonable suspicion, pre-employment/applicant,
accident or unsafe practice, voluntary, and follow-up testing; as well
as programs for rehabilitation, confidentiality, disciplinary action,
employee assistance and training. The GC avers that some or all of
these components constituted a change in working conditions in one or
both of the PASS bargaining units.
The GC asserts that the Judge also erred in concluding that
implementation of random drug testing did not occur until the point at
which the first employee in the PASS bargaining units became eligible
for random testing. Rather, the GC asserts that, for collective
bargaining purposes, implementation of random drug testing took place on
September 8, 1987, which was the point at which the existence of
reasonably foreseeable effects of the random drug testing were clear.
Lastly, the GC contends that the Judge's conclusion that PASS
abandoned bargaining on September 16 is erroneous. In support, the GC
contends that the September 16 meeting was a post-implementation meeting
and had no bearing on whether the alleged unilateral implementation of
the drug testing program on September 8 violated the Statute. The GC
also contends that PASS cannot be faulted for the fact that no meetings
occurred after September 16 because, according to the record, the FMCS
mediator was responsible for arranging a further meeting.
B. Charging Party's Exceptions
The Charging Party excepts to several of the Judge's conclusions.
Specifically, the Charging Party excepts to the Judge's conclusion that
random drug testing was the only portion of the DOT Order that
constituted a change in working conditions. The Charging Party contends
that the DOT program consisted of several components in addition to
random testing. Like the GC, the Charging Party also excepts to the
Judge's finding that random drug testing was not implemented until
September 28. /7/ The Charging Party asserts that implementation
occurred on September 8, the point at which a reasonably foreseeable
impact on bargaining unit employees existed. The Charging Party asserts
that from the perspective of employees, bargaining was pointless as of
September 8 as the "DOT program unadorned by negotiated impact and
implementation procedures was in effect." Charging Party's Brief at 17.
The Charging Party also excepts to the Judge's finding that PASS
abandoned bargaining on September 16, contending that the events of that
date did not constitute a waiver of bargaining rights on the part of
PASS.
The Charging Party excepts to the Judge's finding that DOT could have
postponed, and was prepared to postpone, testing of unit members at the
request of FAA. The Charging Party contends that the record supports a
conclusion that implementation occurred in the face of requests from
both FAA and PASS to DOT that it be postponed.
The Charging Party also excepts to the Judge's conclusion that, under
Aberdeen, the Authority lacks jurisdiction in this unfair labor practice
case to decide whether FAA refused to bargain regarding the four
proposals about which a compelling need assertion had been raised
initially and subsequently withdrawn. The Charging Party concedes that
under Aberdeen the negotiability procedure established by section 7117(
b) of the Statute is the exclusive method for adjudicating compelling
need allegations but contends that the withdrawal of the allegation of
nonnegotiability "obviated the need for a section 7117(b) proceeding."
Charging Party's Brief at 23. Consequently, the Charging Party urges
that "(t)he Aberdeen rule" does not apply. Id.
The Charging Party excepts to the Judge's conclusion that DOT was not
liable for the "bargaining violation" and argues that "DOT should be
held liable for the illegal acts of its agent, the FAA, especially
where, as here, that agent acted on express instructions of its
principal." Id. at 24-25.
Last, the Charging Party excepts to the Judge's conclusion that a
status quo ante remedy is inappropriate. The Charging Party contends
that the Judge did not establish how such a remedy would threaten public
safety and that there is no basis for such a conclusion. The Charging
Party asserts that a status quo ante remedy is warranted by the "brazen
and fundamental" nature of the violation and as a deterrent to further
violations by the Respondents. Id. at 27-29.
A. The Information Request
No timely exceptions have been filed to the Judge's conclusion that
FAA violated section 7116(a)(1), (5) and (8) of the Statute by refusing
to provide a sanitized listing of drug-related disciplinary and adverse
actions that have occurred over the past three years in the PASS
bargaining units and for which FAA has been upheld in either grievance
or MSPB proceedings. Therefore, we will adopt the Judge's decision as
to that issue. /8/
B. The Change in Conditions of Employment for Employees in the PASS
Bargaining Units
The record establishes that DOT Order 3910.1, "Drug-Free Departmental
Workplace," transmitted DOT's policies and procedures for implementing
Executive Order 12564, "Drug-Free Federal Workplace." G.C. Exh. 14.
This DOT Order set forth a comprehensive and centralized program
designed to establish and maintain a drug-free workplace and included
provisions for drug awareness, drug testing, rehabilitation, employee
assistance and disciplinary action programs. Id. Under the DOT Order,
the head of each operating administration, such as FAA, was responsible
for implementing the directive within his or her organization. Id.
As noted in the "Background" section of this decision, the record
establishes that some features of the "Drug-Free Departmental Workplace"
program reflected policies and procedures that previously existed in FAA
and the PASS bargaining units. While the record establishes that random
drug testing was only one of several interrelated components of the
overall program set forth in DOT Order 3910.1, it does not permit any
reliable conclusions to be drawn concerning the extent to which the
components, other than random drug testing, represented changes in
conditions of employment in the PASS bargaining units. Thus, we agree
with the Judge that the record does not establish that any of the
components of the "Drug-Free Departmental Workplace" program other than
random drug testing in fact constituted changes in working conditions in
the PASS bargaining units. It is well established that the GC bears the
burden of proving that an unfair labor practice has been committed. For
example, Letterkenny Army Depot, 35 FLRA 113, 118 (1990).
We now turn to the question of whether the date scheduled for the
commencement of the operation of the random drug testing component of
the program constituted the implementation of a change in conditions of
employment about which PASS had requested to bargain.
Generally, under the Statute, absent a clear and unmistakable waiver
of bargaining rights, an agency must afford the exclusive representative
of affected employees notice of proposed changes in conditions of
employment and an opportunity to bargain over those aspects of the
changes that are negotiable. For example, U.S. Department of Health
and Human Services, Social Security Administration, Baltimore, Maryland,
39 FLRA 258, 262 (1991) (SSA, Baltimore). Where parties are engaged in
bargaining over a proposed change in conditions of employment, an agency
is generally obligated to maintain the status quo pending the completion
of the entire bargaining process, including the opportunity to pursue
impasse procedures. See, for example, Department of Health and Human
Services, Social Security Administration and Social Security
Administration, Field Operations, Region II, 35 FLRA 940, 948-50 (1990)
(SSA, Region II). Where a bargaining obligation arises by virtue of an
agency changing conditions of employment, the agency is required to
bargain only over negotiable proposals. For example, SSA, Baltimore, 39
FLRA at 262. Where a union submits bargaining proposals and an agency
refuses to bargain over them based on the contention that they are
nonnegotiable, the agency acts at its peril if it then implements the
proposed change in conditions of employment. Id. at 262-63.
Here, it is not disputed that as of September 8, 1987, FAA and PASS
were engaged in bargaining over the impact and implementation of the DOT
drug screening program. In the course of those negotiations, PASS had
submitted a number of proposals, some of which FAA had declared
nonnegotiable and some of which FAA had conceded were negotiable.
Judge's Decision (JD) at 15-16. Additionally, FAA had taken the
position at the last bargaining session held prior to the week of
September 8 that the parties were not at impasse. JD at 16. In
accordance with Authority precedent, if the commencement of the
operation of the random drug testing component of the DOT drug-free
workplace program, which occurred on or about September 8, represented a
change in conditions of employment for bargaining unit employees, a
violation of the Statute occurred.
The Judge took the position that implementation of random drug
testing with respect to bargaining unit employees did not occur until
the first bargaining unit employee became eligible for testing by virtue
of the expiration of the 30-day notice period. We disagree. In our
view, the random drug testing component of the program was effectively
implemented at the point at which operation of that component of the
program began. We note that DOT Order 3910.1 provides:
Under (random) testing, all covered employees will have an equal
statistical chance of being selected for testing within a
specified time frame. (Random) testing is unannounced and could
occur on any scheduled workday.
G.C. Exh. 14. Moreover, the 30-day notice that was provided to
employees who were subject to random testing advised employees that
"(r)efusal to submit to testing or failure to cooperate with the
collection procedures will be grounds for removal from the Federal
service." G.C. Exh. 18. A list of "Questions and Answers" that
accompanied the 30-day notice advised:
In the event an employee has not received the 30-day notice and is
informed of his or her selection for random testing, he or she
should nonetheless report to the collection site and fully
cooperate with the collection procedures.
Id.
An FAA representative advised PASS representatives that employees in
the PASS units would not actually be tested until later in September
because the field structure involved militated against meeting the
30-day notice requirement by the week of September 8. Testimony
establishes that DOT and FAA planned to limit testing in the early days
of the program to those geographical areas in which they believed that
distribution of the 30-day notice had been accomplished. Tr. 358-59.
They also planned to delete the names of any employees who had not been
given their 30-day notice from the random lists generated for the
purpose of actual testing. Id. Thus, the only assurance given PASS
that employees in its bargaining unit would not actually be tested
during the initial operation of random testing was based not on the fact
that bargaining had not been completed but, rather, on the need to
fulfill the 30-day notice requirement. There is no evidence that the
program was delayed based on the pendency of bargaining. Compare United
States Air Force, Lowry Air Force Base, Denver, Colorado, 22 FLRA 171
(1986) (no violation occurred where, although an implementation date had
been announced, the respondent subsequently delayed implementation of
the new policy for unit employees until after, and based on, the
completion of negotiations). Moreover, in view of the stated policy
that, when informed of their selection for testing, employees should
"proceed to the collection site and cooperate with the collection
procedures," notwithstanding the fact that notice requirements had not
been met, employees were effectively subject to, and required to comply
with the random drug testing component of the program from its inception
on September 8. Additionally, in view of the unannounced nature of
random testing and the fact that no general exception had been made for
bargaining unit employees pending the completion of bargaining,
employees had no basis for concluding that they were not subject to the
random testing component of the program from the point at which FAA had
announced it would be placed into operation.
Based on the foregoing, we conclude that on or about September 8,
1987, employees in the PASS bargaining unit were subject to a change in
their conditions of employment by virtue of the implementation of random
drug testing, a highly significant component of the overall drug-free
workplace program set forth in DOT Order 3910.1. /9/
In view of this conclusion, we reject the Judge's conclusion that
bargaining was concluded prior to the implementation of random drug
testing and we find it unnecessary to address his findings and
conclusions to the effect that PASS abandoned bargaining on September
16. As we have found that unilateral implementation occurred on or
about September 8, the parties' actions subsequent to that point do not
cure the breach of the requirement that parties meet their obligation to
bargain prior to implementing a change in conditions of employment. For
example, SSA, Region II, 35 FLRA at 948. In particular, we note that in
this case PASS had specifically requested that bargaining take place
"prior to the implementation of any drug screening program" in its
bargaining units. G.C. Exh. 16. Consequently, the events that took
place on September 16 are irrelevant to a determination of whether a
violation of the Statute resulted from the unilateral action that
occurred on or about September 8.
In summary, we conclude that a change in conditions of employment for
employees in the PASS bargaining units was implemented on or about
September 8, 1987, when a significant component of DOT Order 3910.1,
random drug testing, became operational.
C. Whether DOT and/or FAA Violated Section 7116(a)(1) and (5) as a
Consequence of the Change in Conditions of Employment
The Authority has addressed the question of responsibility for
violations of the Statute where different levels within an agency are
involved. It is well established that the obligation to bargain with a
union holding exclusive representation for employees in a bargaining
unit concerning conditions of employment affecting those employees rests
at the level of the agency at which exclusive recognition exists. See,
for example, Philadelphia Naval Base, Philadelphia Naval Station and
Philadelphia Naval Shipyard, 37 FLRA 79, 87-88 (1990); (Philadelphia
Naval Base); and Headquarters, Defense Logistics Agency, Washington,
D.C., 22 FLRA 875, 878-79 (1986) (DLA, Washington, D.C.). However, when
management at a higher level of an agency directs or requires management
at a subordinate level at which exclusive recognition exists 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,
U.S. Department of Energy, Washington, D.C., 34 FLRA 361, 366-67 (1990).
Here, recognition rested at the level of FAA, not DOT. Thus, DOT
itself had no duty to bargain with PASS concerning the issuance of
internal directives to its subordinate levels regarding the drug-free
workplace program. /10/ See DLA, Washington, D.C., 22 FLRA at 880.
Rather, the primary responsibility for fulfilling the duty to bargain
with PASS prior to implementation of any changes in conditions of
employment rested with FAA. In order to find that DOT committed a
violation of the Statute, it would be necessary to establish that DOT
prevented FAA from fulfilling its duty to bargain with PASS. In the
absence of such a showing, DOT cannot be held to have violated the
Statute as alleged.
There is no showing here that DOT ordered FAA to implement the
drug-free workplace program while negotiations with PASS were still
pending. While the record establishes that DOT controlled the date on
which the random drug testing component of the program was to become
operational, it does not establish that FAA specifically requested of
DOT that the scheduled September 8 implementation date be postponed
within the PASS bargaining units. That is, while the record establishes
that some conversations occurred between FAA and DOT representatives
concerning a postponement, the record does not establish that FAA
specifically requested such a delay and that DOT refused. Tr. 365-70,
404-08, 461, and 536-37. Nor does the record establish that DOT had
foreclosed such a request from FAA. Consequently, while we are unable
to find that DOT was actually prepared to postpone the implementation of
the random testing component of the program at the request of FAA, /11/
we are also unable to conclude, based on the record, that a request was
actually made by FAA and denied by DOT or that, under the circumstances,
a request by FAA would have been futile.
There is no basis in the record of this case to conclude that DOT
interfered with the bargaining relationship between FAA and PASS by
directing that the random testing component of the drug-free workplace
program be implemented notwithstanding the fact that bargaining had not
been completed. Compare U.S. Department of Health and Human Services,
Public Health Service and Centers of Disease Control, National Institute
for Occupational Safety and Health, Appalachian Laboratory for
Occupational Safety and Health and American Federation of Government
Employees, Local 3430, AFL-CIO, 39 FLRA 1306 (1991) (record supported a
conclusion that higher level in an agency directed or required
subordinate level to act in a manner that was inconsistent with the
subordinate level's bargaining obligations) with Philadelphia Naval
Base, 37 FLRA at 87-88 (no showing that organizational level controlling
a condition of employment was asked and refused to grant authorization
to bargain or ordered level holding exclusive recognition not to bargain
over change in conditions of employment).
D. The Allegations Centering on FAA's Declaration That Certain PASS
Proposals Were Nonnegotiable
We next address the Judge's findings and conclusions relating to
allegations that a further violation of the Statute occurred as a result
of FAA's action in declaring nonnegotiable some of the proposals
submitted by PASS during the course of the negotiations that preceded
the September 8 implementation. We disagree with the Judge in two major
respects. First, we disagree with his conclusion that under Aberdeen he
could not make any conclusion as to whether DOT and/or FAA violated the
Statute with respect to declaring nonnegotiable four proposals as to
which a declaration based on compelling need was subsequently withdrawn
in a related negotiability case. Second, as to those proposals that
were before him on negotiability issues other than compelling need, we
find that his reliance on the state of the law at the time the proposals
were submitted and declared nonnegotiable rather than the state of the
law at the time of his decision is inconsistent with Authority
precedent.
1. The Applicability of Aberdeen Where a Compelling Need Assertion
Has Been Withdrawn
As noted earlier, while FAA conceded that some of the proposals
submitted by PASS were negotiable, others were declared nonnegotiable.
Some of these were asserted to be nonnegotiable based solely on an
asserted conflict with a regulation for which there was a compelling
need and some based on that and/or various other grounds. The Union
filed a petition for review of negotiability issues with the Authority
in Case No. 0-NG-1456 as to the proposals declared nonnegotiable and
requested that the negotiability petition be held in abeyance pending
disposition of the unfair labor practice charges that are the subject of
this case. See Professional Airways Systems Specialists, MEBA, AFL-CIO
and Department of Transportation, Federal Aviation Administration, 32
FLRA 517 (1988). In a statement of position, dated October 21, 1987,
and filed in the negotiability case pursuant to section 2424.6 of the
Authority's regulations, the allegation that Proposals 18A, 22E, 23 and
30A of PASS 2 (identical to Proposals 14A, 17E, 18 and 24A of PASS 3)
were nonnegotiable was withdrawn by DOT. G. C. Exh. 35.
In the proceedings in this case, the GC withdrew the allegations that
the Respondents violated the Statute by declaring various proposals
nonnegotiable based on compelling need in light of the Supreme Court's
decision in Aberdeen, 108 S. Ct. 1261 (1988). However, the GC
maintained before the Judge and in exceptions to the Judge's decision
that Proposals 18A, 22E, 23 and 30A are properly before the Judge and
the Authority in view of the withdrawal of the original compelling need
assertion. /12/
Under Aberdeen, when an agency alleges that it has no duty to bargain
because a proposal conflicts with an agency regulation for which a
compelling need exists, "no duty to bargain arises until the Authority
has first determined that no compelling need justifies adherence to the
regulation." 108 S. Ct. at 1262. The Court further stated in Aberdeen:
Under Section 7117(b) employees are provided with a means to
clarify the scope of the agency's duty to bargain; if the agency
then refuses to bargain, the union may seek relief through an ULP
proceeding . . . . Most importantly, requiring that compelling
need be resolved exclusively though a Section 7117(b) appeal
allows agencies to act in accordance with their regulations
without an overriding apprehension that their adherence to the
regulations might result in sanctions under an ULP proceeding.
Id. at 1263.
Based on Aberdeen, we conclude that, generally, where a compelling
need assertion is raised by an agency as a bar to negotiation of a union
proposal the agency has no duty to bargain over the subject proposal
until the issue has been resolved in a section 7117(b) proceeding.
Federal Emergency Management Agency and National Federation of Federal
Employees, Local 1983, 32 FLRA 502 (1988).
If an agency withdraws an allegation that a proposal is
nonnegotiable, the dispute is effectively rendered moot. That is, the
Authority's general practice is simply to recognize the withdrawal of
the allegation and not address the issue further. See, for example,
American Federation of Government Employees, AFL-CIO, Council of Marine
Corps Locals, Council 240 and Department of the Navy, United States
Marine Corps, 35 FLRA 108, 108 n.1 (1990). The Authority does not issue
any order concerning that particular proposal. Thus, once an agency has
withdrawn its allegation of nonnegotiability, all that remains to be
done by the Authority in a section 7117 proceeding is the purely
ministerial function of recognizing the existence of the withdrawal.
Here, the Respondents' withdrawal, in the statement of position, of the
compelling need allegation as to Proposals 18A, 22E, 23 and 30A of PASS
2 effectively resolved the issue for purposes of section 7117(b). From
the point at which the compelling need allegations were withdrawn, FAA
had an obligation to bargain over the proposals and any alleged refusal
to bargain over them at that point became subject to review in an unfair
labor practice proceeding. See Aberdeen, 108 S. Ct. at 1263.
Because, under Aberdeen, FAA had no duty to bargain over the four
proposals as long as a compelling need allegation existed, FAA's refusal
to bargain over the proposals during that period could not constitute a
violation of the Statute. Further, there is no basis in the record of
this case for concluding that FAA refused to bargain over those
particular proposals once the compelling need allegation was withdrawn.
That is, all that the record establishes is that FAA initially raised
compelling need as a bar to negotiating over some of the Union's
proposals and that the allegation was subsequently withdrawn in the
context of a section 7117 proceeding. In our view, the fact that an
agency initially raises and then withdraws an allegation of compelling
need, standing alone, does not support a finding of a refusal to bargain
over those particular proposals. Consequently, we dismiss the
allegation that a violation of the Statute occurred as the result of any
refusal to bargain over Proposals 18A, 22E, 23 and 30A of PASS 2 or,
correspondingly, Proposals 14A, 17E, 18 and 24A of PASS 3.
2. The Negotiability of Proposals 3, 11 and 22C of PASS 2 /13/
As noted earlier, where a union submits bargaining proposals
concerning a proposed change in conditions of employment and an agency
refuses to bargain over them based on the contention that they are
nonnegotiable, the agency acts at its peril if it then implements the
proposed change in conditions of employment. For example, SSA,
Baltimore, 39 FLRA at 263. If any of the union's proposals are held to
be negotiable, the agency will be found to have violated section 7116(
a)(1) and (5) of the Statute by implementing the change without
bargaining over negotiable proposals. For example, id.
Because FAA had declared Proposals 3, 11 and 22C of PASS 2
nonnegotiable based on reasons other than compelling need, the
negotiability of those proposals was properly before the Judge. In
ruling on those proposals, the Judge relied on the law as it existed at
the time the alleged refusal to bargain occurred. It is clear and well
established, however, that the Authority applies the law as it is at the
time of the Authority's decision. For example, U.S. Department of
Labor, Washington, D.C., 39 FLRA 531, 542 (1991); Department of the
Navy, Naval Underwater Systems Center, Newport, Rhode Island, 30 FLRA
697, 700-01 (1987). Consequently, the Judge erred in ruling on the
negotiability of Proposals 3, 11 and 22C based on the law at the time
the alleged refusal to bargain occurred.
We will now determine the negotiability of those proposals on the
basis of law as it currently exists.
a. Proposal 3 /14/
Proposal 3. The employer shall use the Secretary of Health and
Human Services Scientific and Technical Guidelines For Drug
Testing Programs. All drug testing will be performed by an
independent contract laboratory certified by Department of Defense
(DOD).
The first sentence of this proposal would require that the Agency use
the scientific and technical guidelines for drug testing programs that
are issued by the Department of Health and Human Services (DHHS). On
April 1, 1988, while this case was pending, DHHS issued final Mandatory
Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89
(Final Guidelines). The Authority has in previous cases found that the
Final Guidelines are "Government-wide regulations" within the meaning of
section 7117(a) of the Statute. See National Federation of Federal
Employees, Local 15 and Department of the Army, U.S. Army Armament,
Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436,
438-39 (1988) (Rock Island), rev'd in part and remanded as to other
matters sub nom. Department of the Army, U.S. Army Aberdeen Proving
Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground);
see also Aberdeen Proving Ground, 890 F.2d at 470, n.4.
The first sentence of this proposal is similar to Proposal 1 in
American Federation of Government Employees, Department of Education
Council of AFGE Locals and U.S. Department of Education, Washington, D.
C., 38 FLRA 1068 (1990), (Department of Education), Decision on
Reconsideration, 39 FLRA 1241 (1991), which required the agency to
establish and administer its drug testing program in accordance with,
among other things, applicable laws, rules and regulations. In
Department of Education, we concluded that while Proposal 1 directly
interfered with management's right under section 7106(a)(1) of the
Statute to determine its internal security practices, it was
nevertheless negotiable as an appropriate arrangement under section
7106(b)(3). In so concluding, we recognized that an agency's exercise
of its right to implement a drug testing program could adversely affect
employees. Id. at 1077. In finding that the proposed "arrangement" was
"appropriate," we noted that "the existence of applicable laws, rules
and regulations already serves to limit agency action and indicates that
an agency's interest in being able to act without regard to those
provisions and without challenge to the legality of its action, such as
in arbitration procedures, is negligible." /15/ Id. at 1078.
We believe that the same considerations apply in this case and see no
reason to conclude that the first sentence of Proposal 3 is not also
negotiable as an appropriate arrangement. /16/ Therefore, we conclude
that the first sentence of Proposal 3 is within the duty to bargain.
The second sentence is, however, nonnegotiable because it is
inconsistent with the Final Guidelines, a Government-wide regulation.
Under section 2.6 of the Final Guidelines, agencies may use contract
laboratories that have been certified for urinalysis testing by the
Department of Defense only during an "interim certification period" to
be determined by the Secretary of DHHS. The effect of the second
sentence would be to require use of a contract laboratory certified by
the Department of Defense for the duration of the parties' agreement
even though the Secretary of DHHS may have determined that such interim
certification procedures are "no longer available." Final Guidelines,
section 2.6.
b. Proposal 11
Proposal 11. The employer shall provide all designated
representatives of the Union the opportunity to attend drug
related training sponsored by the employer. This training shall
be on official time, including travel and per diem.
Insofar as the proposal concerns providing official time, travel and
per diem for the Union's designated representatives to attend
agency-sponsored drug related training we agree with the Judge that it
is negotiable. See section 7131(d) of the Statute (parties to exclusive
recognition may agree to grant official time to any employee
representing an exclusive representative); National Treasury Employees
Union and Department of the Treasury, U. S. Customs Service, 21 FLRA 611
(1986), enf'd sub nom. Department of the Treasury, U.S. Customs Service
v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (proposal that union
representatives on official time be granted travel and per diem is
negotiable).
We reaffirm the Authority's position that proposals requiring that
employees be granted official time for union-related activities continue
to be negotiable under section 7131(d) of the Statute. We recently
discussed the impact on management's rights of a proposal that would
have the effect of obligating a portion of employees' duty time to a
purpose specified in the proposal, thereby, limiting an agency's ability
to assign work during that period. American Federation of Government
Employees Local 3407 and U.S. Department of Defense, Defense Mapping
Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991)
(Proposal 2) (Defense Mapping Agency).
In finding that a proposal that would allow employees to attend
"classes" on drug testing was negotiable even if the classes were to be
held on duty time we stated:
(W)e find that the proposal does not directly interfere with the
Agency's right to assign work. It is clear, of course, that the
time spent by unit employees attending the classes in which the
information is conveyed would not be available for other uses,
including the performance of the employees' assigned duties. That
is, attending the classes would take time. It is equally clear,
however, that everything an employee does during duty time takes
time. Accordingly, to find that an otherwise negotiable proposal
directly interferes with the right to assign work solely because
implementation of the proposal results in the use of time,
ultimately would mean that virtually all proposals directly
interfere with that right. We find no basis in the Statute for
such an expansive view of the right to assign work. Moreover, in
similar contexts, the courts and the Authority have refused to
interpret management's rights under section 7106 in such a manner.
In American Federation of Government Employees v. FLRA, 798 F.2d
1525 (D.C. Cir. 1986), for example, the court addressed the issue
of whether a proposal providing union representatives with 100
percent official time interfered with an agency's right to
determine the numbers, types and grades of employees assigned to a
tour of duty under section 7106(b)(1) of the Statute. In
concluding that the proposal was negotiable, the court noted that
any proposal for additional official time "in an efficiently run
organization will require the agency to reassign work to other
employees . . . ." Id. at 1529. The court continued: In
specifically providing for official time, Congress must have
envisioned either some reallocation of positions or some
additional hiring and hence some limitation in management's right
to determine the number of employees assigned to a work project or
organizational subdivision. Otherwise, the official time
provision of section 7131(d) would be a dead letter. Id. at 1529.
Defense Mapping Agency, 39 FLRA at 564-65.
Additionally, we have rejected arguments that a proposal that does
not directly interfere with any particular management right is,
nonetheless, nonnegotiable because it would have the effect of requiring
an agency to exercise some management right or rights in order to
accomplish requirements established by the proposal. See American
Federation of Government Employees, Local 1698 and U.S. Department of
the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38
FLRA 1016, 1024 (1990); National Federation of Federal Employees, Local
2099 and Department of the Navy, Naval Plant Representative Office, St.
Louis, Missouri, 35 FLRA 362, 368 (1990).
Before the Judge, the Respondents claimed that this proposal
interfered with management's right under section 7106(a)(2)(B) to assign
work because it concerned training. In agreement with the Judge, we
find that this proposal on its face does no more than allow employees
functioning as representatives of PASS to attend agency-sponsored
training purely in their representational capacity and for purposes of
being better able to represent bargaining unit employees under the
Statute in matters associated with drug testing. In our view it is
similar to Proposal 2 in Defense Mapping Agency in that it does not
involve training employees who have responsibilities or duties in the
drug program itself in how to accomplish those responsibilities nor does
it, otherwise, require the agency to provide instruction to employees on
aspects of their jobs or other performance-related matters. Rather, it
merely authorizes Union representatives to attend agency training
programs on drug testing for the purpose of obtaining information about
a condition of employment in the bargaining unit; i.e. the drug
program. Like Proposal 2 in Defense Mapping Agency, nothing in the
language of this proposal does anything other than provide a vehicle by
which information concerning the drug testing program is conveyed to
Union representatives solely in the context of their representational
status under the Statute.
We conclude that this proposal, like Proposal 2 in Defense Mapping
Agency, does not concern training that is encompassed within
management's right to assign work. Compare National Federation of
Federal Employees, Local 1437 and United States Army Armament Research,
Development and Engineering Center, Picatinny Arsenal, New Jersey, 35
FLRA 1052 (1990) (Proposal 1) (proposal that required training be
provided to union officials so that they could better represent their
bargaining unit in matters related to safety of the workplace pursuant
to 29 CFR Part 1960 concerned training that was encompassed within
management's right to assign work) with National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long Beach,
California, 12 FLRA 270, 274 (1983) (proposal allowing participation of
union representative on incentive awards committee did not concern
official prescribed duties, merely authorized a procedure for union
participation in the administration of a program concerning a condition
of employment and did not involve the assignment of "work" within the
meaning of section 7106(a)(2)(B) of the Statute). In view of our
conclusion, we need not and do not address the extent to which all
proposals relating to training directly interfere with an agency's right
to assign work.
Based on the foregoing reasons, we conclude that Proposal 11 is
negotiable.
c. Proposal 22C
C. The employee shall be given a sample of his/her own
specimen so that a separate test can be administered at a
laboratory of the employee's own choosing. The employee shall be
allowed official time to deliver such samples to a laboratory.
In the agency statement of position that was submitted in the
negotiability case that is a companion to this case, the agency takes
the position that Proposal 22C "is inconsistent with . . . the DOT
program, for which a compelling need exists . . . and therefore violates
sections 7117(a)(1) and (a)(2)." G.C. Exh. 35 at 31. In view of this
allegation that negotiation of Proposal 22C is barred by compelling
need, we conclude that under Aberdeen the negotiability of this proposal
can be resolved only in a section 7117(b) proceeding and cannot be
resolved in an unfair labor practice proceeding.
3. Summary and Conclusion
FAA violated section 7116(a)(1) and (5) of the Statute as a result of
its action in declaring Proposal 11 /17/ and the first sentence of
Proposal 3 of PASS 2 nonnegotiable and then implementing a change in
conditions of employment.
In its exceptions PASS argues that because DOT and FAA jointly
decided which PASS proposals were nonnegotiable, DOT should also be held
to have violated the Statute. While the record establishes that FAA
consulted with, and was advised by, DOT concerning the declaration of
nonnegotiability that FAA made with respect to the PASS proposals, the
record does not establish that DOT gave FAA a mandatory directive to
declare the PASS proposals nonnegotiable. Consequently, there is no
basis for concluding that DOT interfered with the FAA/PASS bargaining
relationship based on its actions in consulting with and advising FAA
concerning the declarations of nonnegotiability that were provided by
FAA to PASS. Compare U.S. Department of Agriculture and U.S.
Department of Agriculture and U.S. Department of Agriculture,
Agricultural Marketing Service, Livestock Division, Meat Grading and
Certification Branch, Washington, D.C., 29 FLRA 940 (1987) (the record
established that an agency issued a directive to its subordinate
activities prohibiting them from negotiating an agreement with any union
that would authorize the payment of travel and per diem expenses to
union representatives). Thus, the record does not support a conclusion
that DOT interfered with the bargaining relationship between FAA and
PASS as a result of its role in FAA's declaration that Proposals 11 and
the first sentence of Proposal 3 were nonnegotiable.
E. The Remedy
The Judge rejected a status quo ante remedy as not appropriate. PASS
excepts to his failure to grant such a remedy.
In Federal Correctional Institution, 8 FLRA 604 (1982) the Authority
set forth balancing criteria to be applied to the facts of each case to
determine whether a status quo ante remedy is warranted in the case of a
refusal or failure to bargain over procedures and appropriate
arrangements that management will observe in exercising its rights under
section 7106 of the Statute. Under the Federal Correctional Institution
criteria, the Authority considers, among other things: (1) whether, and
when, notice was given to the union by the agency; (2) whether, and
when, the union requested bargaining; (3) the willfulness of the
agency's conduct in failing to discharge its bargaining obligations
under the Statute; (4) the nature and extent of the impact experienced
by adversely affected employees; and (5) whether, and to what degree, a
status quo ante remedy would disrupt or impair the efficiency and
effectiveness of the agency's operations. Federal Correctional
Institution, 8 FLRA at 606.
Here, both DOT and FAA gave PASS notice that the DOT Drug-Free
Workplace program was being established and would be implemented in the
PASS bargaining units. In this regard, the record reveals
communications from DOT to PASS advising it of the program as early as
January 1987. By letter dated July 1, 1987, FAA forwarded to PASS a
copy of the 60-day notice concerning the drug testing component of the
program and by letter dated August 7, 1987, FAA provided PASS with a
copy of the 30-day notice to employees subject to random testing under
the program. In a letter dated August 12, 1987, FAA stated that the
drug testing program was scheduled to go into effect as early as
September 8 and requested PASS to submit any proposals that it had as
soon as possible.
The record shows that PASS began to request bargaining concerning the
implementation of the drug screening program in its bargaining units as
early as June 25, 1987. However, despite FAA's urging that bargaining
about the drug screening program be conducted separately, PASS took the
position that the negotiations concerning the drug testing program
should be conducted in conjunction with national contract negotiations
between it and FAA that were not scheduled to begin until around August
18. PASS also took the position that FAA, not PASS, should provide the
initial bargaining proposals concerning the drug screening program. The
Judge found that in a telephone conversation that occurred on or about
August 6 or 7, an FAA representative denied a PASS request that FAA
provide bargaining proposals in the absence of PASS proposals. PASS
first provided proposals on August 27, 1987. The parties engaged
directly in negotiations or were recessed to consider or study proposals
through September 4, at which point the next meeting was scheduled for
September 16.
From the foregoing, we conclude that PASS was given adequate notice
of the plan to establish a drug testing program in its bargaining unit.
While it expressed its desire to bargain over the matter, the actual
submission of proposals did not occur until quite close to the date that
the drug testing program was scheduled to begin. Although PASS was not
wholly responsible for this circumstance, it bears a substantial share
of the responsibility for the belated start of a serious bargaining
effort.
As for the willfulness of the Agency's conduct, we find significant
the Judge's finding that FAA communicated to PASS that while it could
not change the scheduled September 8 effective date for the commencement
of the drug testing program, employees in the PASS unit would probably
not actually be tested until later in September as a result of the need
to provide a 30-day notice. JD at 9. Thus it appears that FAA was
laboring under the belief, albeit incorrect, that for purposes of
bargaining the critical point in the implementation of the drug testing
program was the point at which bargaining unit employees would actually
undergo testing rather than the point at which the program as a whole
would begin operation. Moreover, FAA did demonstrate a willingness to
bargain over the impact and implementation of the program.
Consequently, there is no basis for concluding that the violation that
occurred as a consequence of FAA's implementation of the drug testing
program was totally willful.
We recognize that an agency's implementation of a drug testing
program adversely affects employees. As acknowledged by the Supreme
Court, urinalysis for drug testing purposes "invade(s) reasonable
expectations of privacy." NTEU v. Von Raab, 109 S. Ct. 1384, 1390
(1989). Moreover, an employee subject to drug testing whose test
produces a "false" positive can reasonably be viewed as having been
adversely affected. Also, an employee subject to drug testing who tests
positive is subject to certain personnel actions, including
reassignment, counseling or rehabilitation, or disciplinary action
depending on the employee's particular situation. A personnel action
based on drug testing results would affect an employee's reputation and
future employment. We conclude that the nature and extent of the impact
of the implementation of a drug testing program on employees is
significant.
Next, we turn to the degree to which a status quo ante remedy would
disrupt or impair the efficiency and effectiveness of agency operations.
The Government has a compelling interest in maintaining air safety.
See National Federation of Federal Employees v. Cheney, 884 F.2d 603,
610 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). ("Compelling
as the government's interest is in preventing the promotion of drug
users to positions involving interdicting drugs and carrying firearms,
it pales in comparison with the quintessential risk of destruction to
life and property posed by aviation.") A drug-related lapse by an
employee in a position that is directly related to the operation of the
aviation safety and control system can have "irreversible and calamitous
consequences." Id. The PASS bargaining unit includes employees who have
responsibilities that are directly related to the operation of the
aviation safety and control system. For example, they include pilots,
flight instructors and electronic technicians whose duties are to
maintain, certify, repair and install electronic equipment throughout
FAA. We find that FAA has a particularly urgent need to ensure a
drug-free workplace insofar as such employees are concerned. It is
noteworthy that DOT was exempted from the restriction placed on Federal
employee drug testing by section 503 of the Supplemental Appropriations
Act of 1987. Pub. L. No. 100-71, 101 Stat. 468, 471 (1987), codified at
5 U.S.C. Section 7301. Section 503 effectively restricted drug testing
of Federal employees until certain conditions, specified therein, had
been met. In excepting DOT from this restriction the Committee of
Conference cited the need to protect public "health and safety." H.R.
Rep. No. 100-195, 100th Cong. 1st Sess. at 111 (1987).
In view of the paramount and incontrovertible need to ensure the
integrity of the aviation safety and control system, we conclude that to
require a return to the status quo ante in this case would be
detrimental to the efficiency and effectiveness of FAA's operations.
Moreover, as discussed above, the FAA's actions in this case, while
serious, are not of such enormity as to outweigh the need to ensure the
efficiency and effectiveness of the aviation safety and control system.
On balance, we conclude that a status quo ante remedy is not
appropriate. Accordingly, to remedy the unfair labor practices in this
case we will issue a prospective bargaining order and require the
Respondent FAA to post an appropriate remedial Notice. In bargaining
pursuant to our order, the parties are free to negotiate with respect to
any effects that the implementation of the drug testing program has had
on employees and with respect to giving retroactive effect to any
provisions on which they reach agreement.
The complaint herein against the Department of Transportation is
hereby dismissed.
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 Authority hereby orders
that the Federal Aviation Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of Professional Airways Systems
Specialists, MEBA, AFL-CIO, a complete listing of all incidents
involving drug-related disciplinary or adverse actions that have
occurred over the past three years in bargaining units it represents and
for which Federal Aviation Administration has been upheld in either
grievance or MSPB proceedings, in sanitized form and to the extent
permitted by law.
(b) Unilaterally implementing DOT Order 3910.1, Drug-Free
Departmental Workplace without bargaining with the Professional Airways
Systems Specialists, MEBA, AFL-CIO, the exclusive representative of its
employees to the extent consistent with law and regulations, on the
procedures to be observed in implementing the changes in conditions of
employment set forth therein and concerning the appropriate arrangements
for employees adversely affected by such changes.
(c) Failing and refusing to meet and negotiate with Professional
Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative
of its employees, over negotiable proposals with respect to the
procedures which the Federal Aviation Administration will observe in
exercising its authority with regard to the change in conditions of
employment and concerning appropriate arrangements for employees
adversely affected by such change, to the extent permitted by law.
(d) In any like or related manner, interfering with, restraining or
coercing employees in the exercise of any right assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of Professional Airways Systems Specialists, MEBA,
AFL-CIO, the exclusive representative of certain employees, furnish it
with a complete list of all incidents involving drug-related
disciplinary or adverse actions that have occurred over the past three
years in bargaining units it represents and for which Federal Aviation
Administration has been upheld in either grievance or MSPB proceedings,
in sanitized form and to the extent permitted by law.
(b) Upon request, negotiate in good faith with Professional Airways
Systems Specialists, MEBA, AFL-CIO, the exclusive representative of
certain of its employees, over the procedures to be observed in
implementing DOT Order 3910.1 and the appropriate arrangements for
adversely affected employees.
(c) 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 Administrator of the Federal Aviation
Administration 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.
(d) 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 the Order.
WE WILL NOT refuse to furnish, upon request of Professional Airways
Systems Specialists, MEBA, AFL-CIO, a complete listing of all incidents
involving drug-related disciplinary or adverse actions that have
occurred over the past three years in bargaining units it represents and
for which Federal Aviation Administration has been upheld in either
grievance or MSPB proceedings, in sanitized form and to the extent
permitted by law.
WE WILL NOT unilaterally implement DOT Order 3910.1, Drug-Free
Departmental Workplace, without bargaining with the Professional Airways
Systems Specialists, MEBA, AFL-CIO, the exclusive representative of
certain of our employees, to the extent consistent with law and
regulation, on the procedures to be observed in implementing the changes
in conditions of employment set forth therein and concerning the
appropriate arrangements for employees adversely affected by such
changes.
WE WILL NOT fail and refuse to meet and negotiate with Professional
Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative
of certain of our employees, over negotiable proposals with respect to
the procedures that the Federal Aviation Administration will observe in
implementing DOT Order 3910.1 and concerning appropriate arrangements
for employees adversely affected by such change, to the extent permitted
by law.
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 of Professional Airways Systems Specialists,
MEBA, AFL-CIO, the exclusive representative of certain of our employees,
furnish it with a complete list of all incidents involving drug-related
disciplinary or adverse actions that have occurred over the past three
years in bargaining units it represents and for which Federal Aviation
Administration has been upheld in either grievance or MSPB proceedings,
in sanitized form and to the extent permitted by law.
WE WILL, upon request of Professional Airways Systems Specialists,
MEBA, AFL-CIO, the exclusive representative of certain of our employees,
negotiate over the procedures to be observed in implementing DOT Order
3910.1 and the appropriate arrangements for adversely affected
employees.
(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, D.C. 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.
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
DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION ADMINISTRATION
Respondents
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO
Charging Party
Diane R. Liff, Esquire
For Respondents
Peter A. Sutton, Esquire
Phillip Boyer, Esquire
For General Counsel of FLRA
Howard E. Johannssen
For Charging Party
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV Section 2410 et seq.
On September 8, 1987, Professional Airways Systems Specialists, MEBA,
AFL-CIO (hereinafter called PASS) filed charges in Case Nos.
3-CA-70647-1, 3-CA-70647-2, 3-CA-70649-1, and 3-CA-70649-2 against
Department of Transportation (hereinafter called DOT) and in Case Nos.
3-CA-70648-1, 3-CA-70648-2, 3-CA-70650-1, 3-CA-70650-2, against Federal
Aviation Administration (hereinafter called FAA). /18/ On September 9,
1987, PASS filed charges in Case Nos. 3-CA-70651-1 and 3-CA-70651-2
against FAA.
Based upon the foregoing charges the General Counsel of the FLRA, by
the Regional Director of Region III of FLRA, issued a Complaint in Case
No. 3-CA-70651-1-2; Order Consolidating Cases and Complaint in Case
Nos. 3-CA-70647-1-2, 3-CA-70648-1-2, 3-CA-70649-1-2, and 3-CA-70650-1-2;
and Order Consolidating Cases in Case Nos. 3-CA-70647-1-2,
3-CA-70648-1-2, 3-CA-70649-1-2, 3-CA-70650-1-2, and 3-CA-70651-1-2.
Respondents filed timely Answers to the foregoing complaints denying
they violated the Statute.
A hearing was conducted before the undersigned in Washington, D.C.
PASS, Respondents and General Counsel of the FLRA were represented and
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Extensive
post-hearing briefs and reply briefs were filed and have been fully
considered.
Respondents filed extensive Post-Hearing Motions to Correct the
Transcript and the Exhibit List and to Admit Additional Exhibits. No
opposition to these motions have been received. Respondents' motion to
correct the transcript is granted and the submitted requested
corrections are attached hereto as Attachment A. Similarly Respondents'
motion to correct the exhibit list submitted by the General Counsel of
the FLRA is granted and the submitted requested corrections are attached
hereto as Attachment B. Respondents' motion to add two additional
documents is granted, the two documents marked R-I and R-J, are made a
part of the record herein and a submitted list of these two documents is
attached hereto as Attachment C. Respondents' motion to add 21
additional documents is granted, the 21 documents marked R-K, R-K(1),
R-L, R-M, R-N, R-O, R-P, R-Q, R-R, R-S, R-T, R-U, R-V, R-W(1), R-W(2),
R-W(3), R-X(1), R-Y, R-Z and R-AA are made a part of the record herein
and a submitted list of these twenty-one documents are attached hereto
as Attachment D.
General Counsel of the FLRA filed a Motion to Correct the Transcript.
No opposition to this motion has been received. Accordingly, this
motion is granted and the motion with the requested corrections are
attached hereto as Attachment E.
Based upon the entire record in this matter and my observation of the
witnesses and their demeanor, I make the following:
DOT is an Executive Department of the Government, comprised of the
Office of the Secretary (OST) and nine operating administrations,
including the FAA. DOT has approximately 100,000 employees working in
almost nine hundred facilities, with fewer than 1,000 employees working
directly in the OST. /19/
OST is responsible for formulating and executing national and
international transportation policies and programs, for coordinating the
various transportation programs of the Federal Government and for
management of DOT. The nine operating administrations, including FAA,
have delegated authority to conduct programs in each area of
responsibility.
At all times material herein PASS has been the collective bargaining
representative for FAA employees in two separate collective bargaining
units. The larger of these two units is the National Airways Facilities
Division unit (hereinafter called the AF unit or the Electronic
Technician unit) and consists of about 6500 employees, primarily
Electronic Technicians (GS-856) whose duties are to maintain, certify
repair and install electronic equipment throughout the FAA. The smaller
unit (hereinafter called the AVN unit), consists of about 350-400
employees and includes, among others, pilots, co-pilots and flight
inspectors.
Since March 1982 PASS has held National Consultation Rights (herein
referred to as NCR) with DOT. DOT, at various levels, recognizes
collective bargaining representatives for 89 separate units. Prior to
September 1987, FAA had its own drug testing program, a periodic testing
program for employees who are required to take an annual physical. This
program affected certain employees, such as pilots, in the AVN unit, but
did not affect any employees in the AF unit. PASS had no objection to
this program so it did not ask to bargain concerning it.
On January 21, 1987, Secretary of Transportation Elizabeth Dole
issued a memorandum to all DOT employees announcing a proposed drug
testing program for DOT, including random testing for some DOT
employees. PASS was provided a copy of this memorandum by William
Hufnell, DOT's Director of Labor Relations, under PASS' NCR. The
proposed program indicated it would affect certain employees, pilots,
etc., represented by PASS in the AVN unit, but included none of the
employees within the AF unit. In a telephone conversation PASS
President Howard Johannssen advised Hufnell that PASS wanted to invoke
its NCR at the appropriate time, when DOT got its "package" ready. At
this time no employees in the AF unit were included in the drug testing
program.
On January 28, 1987, OST conducted a briefing for union
representatives, which was attended by PASS Executive Vice-President
Mark Schneider. Hufnell provided PASS with the draft appendix of the
forthcoming DOT Order. The appendix, entitled "Categorization of
Employees For Drug Testing", listed positions proposed to be covered by
the DOT random drug testing program and included certain positions
including Safety Inspectors and Flight Test Pilots, within the AVN unit
represented by PASS. Electronic Technicians employed within the AF unit
were not included in the appendix, but the appendix did include
"Electronics" positions within the Coast Guard, as being covered by
random testing. Hufnell advised Schneider that Electronics Technicians,
in the AF unit, were under consideration to be subject to random
testing.
On February 13, 1987, PASS received a draft copy of the proposed DOT
Order together with a draft of a questions and answers pamphlet. Each
of the documents indicated some employees in AVN unit were included in
the random drug testing program, but none of the employees in the AF
unit would be affected by the random drug testing program. This
transmission included a request for comments within 30 days. PASS filed
extensive comments on March 13, 1987.
In April or May 1987, Melisa Allen, DOT's Deputy Assistant Secretary
for Administration, recommended to Dole that the Electronics Technicians
in the AF unit be included in the random drug testing program. In late
May or early June, 1987 Dole accepted this recommendation.
On June 22, 1987, Hufnell and Johannssen had a telephone conversation
regarding changes in the drug testing program. Hufnell told Johannssen
that DOT had revised the proposed program and that Hufnell was sending
Johannssen a revised draft which had not yet been approved by Dole.
Hufnell also informed Johannssen that DOT was including Electronics
Technicians in the AF unit in the random drug testing program. This
change affected between 5,600 and 6,000 employees in the AF unit
represented by PASS and resulted in the vast majority of employees
represented by PASS being included within the random drug testing
program. Hufnell did not indicate when the drug testing program would
be implemented and indicated that pursuant to its NCR rights PASS should
respond by Friday, June 24, 1987.
On June 24, 1987, Johannssen received a package of documents
outlining the changes discussed in the June 22 phone conversation. The
documents included a draft copy of the proposed 60 day notice which DOT
planned to give employees the following week; a revised copy of the
draft DOT Order, which contained the Electronics Technicians in the AF
unit; and a letter notifying PASS that DOT was amending the program to
include the Electronics Technicians in the AF unit within the random
drug testing program.
On June 25, 1987, Johannssen wrote to Hufnell complaining about the
brief time for comments and demanding to negotiate to the fullest extent
allowed by law prior to implementation of the program within the units
represented by PASS. Johannssen sent copies of this demand to bargain
to Dole and to three levels within the chain of command within FAA,
including to Joseph Noonan, FAA Director of Labor Relations.
On June 25 and 26, 1987, Hufnell and Johannssen had some
conversations concerning the proposed changes in the drug testing
program, discussing the proposed 60 day notice which DOT intended to
send to DOT employees on June 26, 1987. Johannssen reiterated PASS's
demand to negotiate at the appropriate level over the implementation of
the proposed drug testing program. Hufnell agreed that bargaining would
take place at the appropriate level. Pursuant to two suggestions from
Johannssen, the proposed 60 day notice was changed to include
Electronics Technicians and by stating that management would comply with
its bargaining obligation as the program was implemented. Hufnell
stated that the 60 day notice did not mean anything in regard to when
implementation would occur, it was just notification, getting the ball
rolling.
On June 30, 1987, Hufnell sent Johannssen a copy of the final DOT
Order, DOT Order 3910.1, Drug-Free Department Work Place, dated June 29,
1987, and signed by Dole. /20/ Chapter VIII of the DOT Order, entitled
Implementation Procedures had been reserved and was left blank, with no
explanation. Johannssen assumed it had been left blank until an
agreement could be reached with PASS as to how the program would be
implemented. /21/
By letter dated July 1, 1987, FAA sent PASS a copy of the 60 day
notice sent to employees. This was PASS's first communication from FAA
concerning the drug testing program. This 60 day Notice was a
memorandum dated June 29, 1987, to all DOT employees which stated, inter
alia, "The drug testing component of the DOT Drug Program will commence
no sooner than 60 days after the date of this memorandum. In addition
to this general notification, a specific notice will be provided to each
employee in test-designated positions at least 30 days before testing
begins."
During July Johannssen had three conversations with FAA
representatives regarding the drug testing program and in each one
Johannssen advised FAA of PASS's desire to bargain over the impact and
implementation of the drug testing program and that PASS desired to see
FAA's proposed implementation procedures. FAA did not provide PASS with
any suggestions as to what it proposed to do in regard to the drug
testing program nor did FAA indicate when the program would be
implemented.
With a cover letter dated July 16, 1987, FAA sent PASS a copy of the
DOT Order. In a subsequent telephone conversation between Johannssen
and Raymond B. Thoman, a member of the FAA labor relations staff
coordinating the drug testing program, Johannssen was advised that FAA
did not have any idea when the procedures for implementation would be
completed and that FAA had "no idea" when the drug testing program would
be implemented. Thoman indicated that he did not know if the FAA letter
of June 25, 1987, was a sufficient demand to bargain. Johannssen renewed
PASS's demand to bargain. During the week of July 20, 1987, at a
luncheon meeting, Johannssen told Noonan that Thoman felt the PASS
request to bargain might not be sufficient. Johannssen advised Noonan
that PASS wanted to negotiate about the drug program. Johannssen asked
Noonan when they would get implementation proposals so PASS could come
up with its own. Noonan said he'd try to get something to Johannssen.
On July 23, 1987, Johannssen and Gary Baldwin, FAA's manager of the
Union Management Relations Division, met together with other
representatives of their respective principals, to discuss the impending
collective bargaining for a new collective bargaining agreement. PASS
presented FAA with contract proposals. /22/ Baldwin raised the issue of
drug testing /23/ and how it would fit in and be handled. Baldwin
concluded, and PASS agreed, he thought, that the drug testing should be
handled separately from the national contract negotiations.
By letter dated August 3, 1987, Johannssen wrote Noonan repeating
PASS's demand to bargain prior to the implementation of the drug testing
program concerning both the AVN and AF units and that it would be most
efficient to negotiate the drug testing during the contract talks.
On or about August 6 or 7, 1987, Baldwin and Johannssen had a
telephone conversation. /24/ Johannssen asked Baldwin when FAA was
sending its implementation proposals regarding drug testing to PASS.
Baldwin did not agree to send such proposals to PASS, in the absence of
PASS's proposals. Baldwin advised Johannssen of the 30 day notice and
that Baldwin would send Johannssen a copy of this notice. Baldwin did
not indicate, in this conversation, that FAA was unwilling to negotiate
about drug testing during the national contract talks. By letter of
August 7, 1987, /25/ Hufnell sent a copy of the 30 day notice to
Johannssen together with a copy of a question and answer publication
about the drug program which was to accompany the 30 day notice. The
cover letter restated that the agency will begin delivering the 30 day
notice to covered employees on August 7, 1987. This letter was received
in the PASS office on August 10, 1987, and Johannssen saw it on August
18, 1987, when he returned from vacation. The 30 day notice advised the
particular employee who received it that "Random drug testing will
commence no earlier than 30 days from the date of this notice." Both the
30 day notice and the attached questions and answers set forth, in
detail, the procedures to be followed in the random drug testing.
I find the record does not establish when any members of the AVN or
AF units first actually received the 30 day notices. The record
evidence that an unnamed employee in one of the units received the 30
day notice on August 9, 1987 is too weak, too indefinite and too far
removed from the fact to justify making a finding based on it. /26/ The
record establishes that some FAA employees were given their 30 day
notices almost immediately after August 7, 1987 but others were not
provided such notices until much later in August.
On August 12, 1987, Noonan sent a letter to Johannssen, replying to
Johannssen's letter of August 3, 1987. Noonan stated, in this letter,
that FAA is prepared to meet with PASS and negotiate about the drug
program, but did not agree it should be part of the national contract
negotiations. FAA expressed its belief that the bargaining concerning
the drug testing program should be separate and apart from the contract
negotiations. Noonan also stated, in this letter, that the drug testing
program was scheduled "to go into effect as early as September 8."
Noonan went on and asked PASS to submit any proposals as soon as
possible so FAA can complete discussions prior to implementation. This
letter was apparently received in the PASS office on August 13, 1987.
Johannssen saw this letter for the first time on August 18, 1987.
On August 18, 1987, Johannssen and Baldwin met prior to the national
contract talks. Baldwin, at this meeting, indicated again that FAA did
not want to negotiate the drug testing program during the national
contract bargaining. On August 19, 1987 FAA and PASS started bargaining
for the national contract.
On August 24th or 25th, 1987, an incident was raised during the
contract negotiations. PASS became aware of an incident in California
wherein the list of employees subject to testing under the drug testing
program, who were supposed to receive the 30 day notice, was posted on a
bulletin board. Johannssen raised this incident. Baldwin advised
Johannssen that September 8 would be the date that the drug testing
program would be implemented and that Baldwin didn't have authority nor
ability to change the date. Baldwin did indicate to Johannssen that to
the best of Baldwin's knowledge, the actual testing of bargaining unit
employees would not commence as early as September 8, but it would be
much later in September because of the triggering mechanism of the
issuance of the 30 day notices to individual employees. Johannssen
asked for proposals and was told there wasn't going to be any.
Johannssen then asked for a caucus for the remainder of August 25th to
allow PASS to finalize its drug testing proposals. Johannssen asked
Baldwin to seek a delay in implementation and Baldwin agreed to check
with Noonan and the "folks over at DOT" about such a delay. /27/
On August 26, PASS requested the day off to prepare its proposals
with respect to the drug testing program for negotiation. FAA agreed.
PASS advised FAA that PASS would meet and provide FAA with a copy of
PASS's drug testing proposals. Also on August 26 Johannssen sent
Baldwin a letter requesting certain information for bargaining and
Johannssen characterized Baldwin's statements of the prior day that the
drug screening program covering PASS represented employees will be
implemented on September 8 whether the parties reach agreement or not.
Baldwin did not respond to these characterizations of the conversations.
This August 26 letter notes that on August 18 PASS was advised that the
DOT Order constituted FAA's proposal for drug screening in its entirety.
This letter requested eleven pieces of information so PASS could fully
develop its negotiating position. One of the items requested was "a
complete listing of all drug-related disciplinary/adverse incidents that
have occurred over the past 3 years in the PASS bargaining units and for
which the employer has been upheld in either a grievance on an MSPB
proceeding. (Information provided should be sanitized in accordance
with any Privacy Act provisions)."
By letter dated September 1, 1987 and received by PASS on September
2, FAA responded to PASS's request for information by supplying some and
refusing to supply some. With respect to the foregoing item FAA stated,
"the agency does not maintain such reports at the national level.
Providing the specific individual records would be overly burdensome and
this information is neither relevant nor necessary for the development
of proposals. In addition, this request seeks information the
disclosure of which is limited by the Privacy Act. Accordingly, we
cannot comply with this request."
PASS and FAA representatives met on August 27, 1987 and, at the
beginning of the meeting Johannssen presented PASS's first set of
bargaining proposals concerning the drug testing program composed of 30
paragraphs, hereinafter referred to as PASS 1, and advised FAA that PASS
was prepared to begin drug testing negotiations immediately, with the
understanding that the September 8 date was hard and fast and would not
be changed. Baldwin pointed out that PASS had received copies of the 60
and 30 day notices, so the time frame was known to PASS. Johannssen
wanted to get to the bargaining because they were under this pressure to
implement by September 8th. Baldwin noted that actual testing of
bargaining unit employees would probably not take place until later in
September because of the problem issuing the 30 day notices to the
specific employees. The FAA representatives indicated that they were
not prepared to negotiate at that time and that they would review the
proposals and then set a date to get back to PASS to begin negotiations.
Johannssen went over and explained PASS's proposals and stated that
PASS was prepared to come back and negotiate that evening, the next day
or over the weekend. Johannssen stated they were willing to make any
accommodation to get down and start negotiating "because the clock in
fact was ticking." The FAA representatives advised PASS that they needed
to study and discuss the proposals with DOT and that they would advise
PASS on Monday, August 31st as to when they would get back together.
FAA denied PASS's request to keep its national contract negotiating team
in Washington.
Baldwin discussed PASS 1 with Hufnell of DOT and they concluded that
the proposals presented serious negotiability problems. On Friday,
August 28 in a telephone conversation Baldwin advised Johannssen that
Baldwin had to check with DOT concerning PASS 1 and it would be Monday
before Baldwin could advise PASS when FAA could resume negotiations.
Johannssen asked Baldwin to join him in asking FMCS for assistance
because of the "time frame and pressure". Baldwin did not commit one
way or the other, so Johannssen called FMCS for assistance and sent
confirmatory letters. One dated August 28 to FMCS requested FMCS's
assistance at negotiating meetings. In this letter Johannssen stated
that FAA was under pressure from DOT to implement the drug screening
program on or about September 8. A copy of this letter was sent to
Baldwin. On August 28, Johannssen also wrote to Baldwin citing the need
to set a bargaining date as quickly as possible and reciting PASS's
availability at any time. Johannssen enclosed his home telephone
number. In this letter Johannssen advised Baldwin that Johannssen and
other PASS representatives were scheduled to appear at an arbitration in
Miami on September 8 to 11. Thus, he urged Baldwin to meet at the
earliest possible time.
On Monday August 31 Johannssen called Baldwin twice to find out when
FAA would be prepared to meet. During the afternoon Baldwin advised
Johannssen that FAA would prepare to meet on Thursday, September 3 at
1:00 p.m. Johannssen protested the delay because FAA intended to
implement the drug program on Tuesday of the next week. Johannssen
asked Baldwin to start meetings sooner but FAA was not prepared to begin
negotiations any sooner. Johannssen asked Baldwin to delay the
implementation of the drug testing programs, indicating the short period
of time before implementation, "day by day" as the parties negotiate.
Baldwin stated that he had no authority to stop the implementation date,
but added that he would check with DOT.
On September 3 at 1:00 p.m. representatives of PASS and FAA met to
negotiate concerning the drug testing program, in the presence of
mediator Emmett DeDeyne. Baldwin stated that PASS 1 was non-negotiable.
PASS gave FAA a second set of proposals, hereinafter referred to as
PASS 2, and FAA presented PASS with its first set of proposals,
hereinafter referred to as FAA 1. PASS 2 consisted of 30 proposals
covering nine pages and FAA 1 consisted of seven proposals on one page.
PASS 2 contained, inter alia, the following proposals:
"Proposal 3. The employer shall use the Secretary of Health and
Human Services Scientific and Technical Guidelines For Drug
Testing Programs. All drug testing will be performed by an
independent contract laboratory certified by Department of Defense
(DOD). Proposal 11. The employer shall provide all designated
representatives of the Union the opportunity to attend drug
related training sponsored by the employer. This training shall
be on official time, including travel and per diem. Proposal 18.
A. When it is determined that an employee is to be tested for
illegal drug use, the employee shall be notified privately and in
writing of the following: 1. the reason for the test; 2. the
consequences of a confirmed positive test result. 3. the types of
drugs to be tested for; 4. the prescription drugs,
non-prescription drugs, or other substances which could compromise
the test; 5. the process for an employee to contest the drug
test when the employee feels the collector or the employer
violated the collective process; 6. procedures used by the
collector; 7. security; 8. sample handling; 9. collector
certification of the sample; 10. the employee's rights under
this agreement; 11. chain of custody; and 12. the time and
place for specimen collection. Proposal 22. . . . C. the
employee shall be given a sample of his/her own specimen so that a
separate test can be administered at a laboratory of the
employee's own choosing. The employee shall be allowed official
time to deliver such samples to a laboratory. E. Any employee who
tests positive shall be given access to all written documentation
available from the testing laboratory which verifies the accuracy
of the equipment, the qualifications of lab personnel, the chain
of custody of the specimen, and the accuracy rate of the
laboratory. Proposal 23. The employer shall ensure, to the
maximum extent possible, that quality assurance procedures are
followed. Upon request, the Union shall be provided, in writing,
the quality assurance procedures the employer relies upon for the
integrity of the process. Proposal 30. Effect of Agreement A.
Any provision of this Agreement shall be determined a valid
exception to and shall supersede any existing agency rules, orders
and practices which are in conflict with this agreement."
There was then a brief discussion of the proposals and the parties
then met separately to review each others proposals. When the parties
met again Baldwin advised Johannssen that PASS 2 was very similar to
PASS 1 and raised the same negotiability problems. PASS then presented
FAA with a typed and prepared letter requesting FAA to provide PASS with
written allegations of non-negotiability for those PASS 2 proposals
which FAA considered non-negotiable. These written allegations were to
be presented to PASS the following day by 10:00 a. m. Baldwin
indicated that he would try to comply. PASS then gave FAA another set
of proposals, hereinafter referred to as PASS 3, which PASS designated
as impact and implementation proposals. /28/ PASS also gave FAA a
prepared and typed letter which indicated that PASS was prepared to
immediately begin bargaining over impact and implementation procedures
of the proposed drug testing program and that by putting forth PASS 3 it
was not waiving its right to bargain over PASS 2 proposals which are
declared non-negotiable. The letter also advised FAA that PASS would
consider implementation of the drug testing program prior to the
completion of bargaining as a violation of FAA's duty to bargain in good
faith. PASS representatives asked for a delay in implementation of the
program. Baldwin advised PASS that he did not have the ability to
postpone the implementation date, that was determined by DOT, but the 30
day notices hadn't been out in time to meet the September 8
implementation. Johannssen asked Baldwin if one of the bargaining unit
members had received a 30 day notice as of August 9, did FAA feel it
would implement on September 9 and Baldwin replied that was correct.
/29/ Baldwin stated that he needed some time to review the proposals.
PASS urged the parties to caucus for a few hours and then to resume
meetings that evening. Baldwin indicated that the parties should meet
the next day, so FAA could study the proposals that night and so some
matters could be checked with DOT. The meeting adjourned at 2:30 p.m.,
about 1 and one half hours after it began. Baldwin advised he would
call Johannssen later that day to get the time for the next days
meeting. Johannssen again noted that the implementation date was
pressing.
Baldwin called Johannssen on September 3 and advised him that FAA
would be available to meet on Friday September 4 at 11:00 a.m.
Johannssen protested that they were starting so late and again asked for
a delay in implementation. Baldwin replied that he did not have the
authority or ability to stop the implementation on September 8 and that
FAA can't change it.
During the afternoon of September 3 FAA and DOT representatives met
to discuss the negotiability of PASS 2 and jointly prepared FAA's
written allegations of non-negotiability.
The FAA and PASS representatives met on September 4 at 11:00 a.m. to
discuss the drug testing proposals. FAA presented PASS with FAA's
written allegations of non-negotiability with respect to PASS 2. This
letter stated that a large number of the proposals were non-negotiable
because they were in conflict with DOT's Order establishing the drug
program, for which a compelling need exists /30/ and others because they
were inconsistent with other laws. /31/ It did not declare Proposals 1,
4, 7, 14, 17, 19, 24, 25, 26, 28, 29, and 30B, C and D to be
non-negotiable. The cover letter from FAA also stated that to the
extent the proposals submitted as PASS 3 duplicate the PASS 2 proposals,
the same determinations of non-negotiability apply. /32/ FAA agreed at
the meeting that the proposals that were not declared non-negotiable in
its letter were negotiable. FAA gave PASS another letter, briefly
recounting FAA's version of the proceeding contacts and communications
concerning the drug program, contending it had conducted itself in good
faith and noting that it had pointed out on August 12 that the "drug
testing program is scheduled to go into effect as early as September 8."
The parties discussed those proposals FAA agreed to be negotiable and
FAA's proposals. After some discussion Johannssen asked Baldwin if
Baldwin felt the parties were at impasse. Baldwin replied that he did
not and Johannssen agreed but stated that PASS was going to ask the
Federal Service Impasses Panel (FSIP) for assistance. PASS showed the
FAA a previously prepared package of material to invoke the assistance
of FSIP. FAA declined to join PASS in filing with FSIP.
At the close of the meeting PASS indicated it was willing to work
that evening and through the weekend. Baldwin indicated that because
time was of the essence the earlier they could meet, the better,
hopefully the following week. Johannssen indicated he would not be
available the week of September 8, September 7th being labor day.
Johannssen stated he would be unavailable because he was to be in Miami
for an arbitration during the week of September 8. Baldwin stated that
he couldn't change the implementation date, but stated that for
individuals the 30 days are different depending when each got notice.
With respect to implementation Baldwin said it wasn't up to FAA, its up
to DOT. The meeting broke up at 4:00 p.m. Either at the close of the
meeting or by telephone soon thereafter both parties agreed to meet
again on September 16. At close of meeting Baldwin agreed with
Johannssen that FAA would re-evaluate its counterproposals to determine
whether FAA could accommodate some of PASS's interests. /33/
With respect to much of Johannssen's testimony regarding the meeting,
especially on rebuttal, I find it non-credible. I find his testimony
and his expanded version of the meeting not believable and his improved
memory too convenient and too helpful to his position.
On September 8 Johannssen wrote to Dole asking her to delay the
September 8 implementation date and not to implement the program in the
PASS bargaining unit until the law had been complied with. On September
8, PASS filed the first unfair labor practice charges in the subject
case.
During the morning of September 16 FAA representatives, including
Baldwin, met with PASS representatives, including Johannssen, in the
presence of Mediator DeDeyne. FAA submitted its counter proposals,
hereinafter referred to as FAA 2. The parties discussed FAA 2 and, to a
lesser extent, PASS 2. Baldwin explained FAA 2 and Johannssen rejected
them. At 11:00 a.m. the parties agreed to caucus and to take a lunch
break until 2:00 p.m. When the FAA representatives and DeDeyne returned
they were met only by PASS representative Long, who had been there
during the morning session, who advised them that Johannssen would not
meet with them. DeDeyne went to talk to Johannssen privately, but was
unable to persuade Johannssen to return to the meeting. DeDeyne advised
the FAA representatives that he would attempt to arrange for another
meeting. The meeting then adjourned. No further meetings were held.
In preparation for the September 16 meeting, Baldwin ascertained that
there had yet been no testing of unit members and none were scheduled.
This meeting lasted about one hour.
By letter dated September 16 Long confirmed to Baldwin that the
September 16 meeting recessed with no definite date set for reconvening
and that DeDeyne would arrange for the next meeting. The first time
members of the units represented by PASS were tested was during the week
that began on September 28, 1987.
DOT could have and was prepared to postpone testing of the unit
members, at the request of the FAA.
The General Counsel of the FLRA alleges that FAA violated Section
7116(a)(1) and (5) of the Statute by unilaterally implementing the DOT
Order on September 8, 1987, notwithstanding that PASS and FAA had not
concluded bargaining over the impact and implementation of the Order and
in effect in the alternative, that DOT violated Section 7116(a)(1) and
(5) of the Statute because on or about August 25, DOT directed FAA to
implement the DOT Drug Order effective September 8 notwithstanding the
fact that the impact and implementation bargaining between FAA and PASS
had not concluded.
The FLRA has held and Section 7106(b) of the Statute proves that when
an agency intends to make a change in working conditions, and is
privileged to make such a change without bargaining about its substance,
it must nevertheless bargain with the collective bargaining
representative of its employees concerning the procedures management
officials will observe in exercising any such authority and appropriate
arrangements for employees adversely affected by the change. This has
commonly been referred to as impact and implementation bargaining. An
agency can not implement any such change in working conditions until it
has met and exhausted its obligation to engage in impact and
implementation bargaining. See Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, 31 FLRA 651 (1988).
In the subject case all parties recognize that the promulgation and
implementation of the DOT Order by DOT and FAA constituted such changes
in the working conditions of the FAA employees and that neither FAA nor
DOT had to bargain about the substance of the changes. /34/ Respondents
contention that the imposition of DOT Order would reasonably have no
adverse effect on employees is rejected. The entire drug testing
program would reasonably foreseeably have many and varied adverse
effects on employees and clearly the imposition of the DOT Order by FAA
would be the very type of change in working conditions which would
entitle PASS to bargain with FAA concerning the impact and
implementation of the DOT Order. In fact FAA and PASS engaged in such
bargaining. The General Counsel of the FLRA contends that FAA, either
on its own or so compelled by DOT, implemented the DOT Order in the FAA
before the parties had completed the impact and implementation
bargaining and before impasse had been reached.
The record establishes that on September 16, 1987, PASS in effect
abandoned the impact and implementation bargaining. Johannssen did not
attend the afternoon session and Long just announced the session was
over and the Mediator would schedule a new meeting. This was confirmed
by letter, but PASS made no request for another bargaining session. The
operative date for implementation of the DOT Order with respect to the
FAA becomes a pivotal issue. If the implementation date was subsequent
to September 16, then FAA did not implement prior to meeting its impact
and implementation bargaining obligation. On the other hand if
implementation before September 16, then the implementation occurred
before FAA had met its obligation. /35/
General Counsel of the FLRA urges that the drug testing program was
implemented on September 8. The record establishes that the DOT Order
and the drug program, as a whole, became effective on September 8. The
record establishes that the DOT Order and the drug program involved more
than just drug testing and with respect to testing, various kinds are
involved.
The record establishes that only one aspect of the drug program
involved a change in working conditions with respect to the AVN and AF
units represented by PASS and that was the random drug testing. /36/
The record establishes that the random drug testing aspects of the DOT
Order became effective on September 8, with respect to some FAA
employees, i.e. those who received their 30 day notices on or about
August 7. However, the record does not establish when any employees in
the AVN or AF units received their 30 day notices, except that some had
apparently received them to justify their being tested during the week
of September 28, 1987. Thus, although the FAA representatives spoke in
terms of the drug program being implemented on September 8, Baldwin
also, on a number of occasions, assured the PASS representatives that no
employees in the AVN or AF units would be eligible to be tested until
later in September. Although Baldwin did not specifically state when
such employees could first be tested, PASS did not try to ascertain the
date but rather kept trying to have the September 8 date postponed. The
record does establish that although some FAA employees, primarily
employees in headquarters or Washington, received their 30 day notices
on or about August 7, there also were some substantial delays in getting
the 30 day notices to the FAA employees in field facilities. The only
specific evidence as to when any AVN or AF unit employee received a 30
day notice was too remote and far removed from the incident to justify
basing a finding of fact on it, and I did not make such a finding.
General Counsel of the FLRA produced no other evidence as to when any
employees in the two units in question actually received the 30 day
notice. The only substantial evidence is that same such employees were
tested during the week of September 28 and therefore they received their
notice no later than 30 days prior to September 28. There is no
credible evidence that as of September 16 any employee in the AF or AVN
units was subject to random testing or had received a 30 day notice 30
days or more prior to September 16.
The FLRA has traditionally held that management, to discharge its
statutory obligation, must notify the collective bargaining
representative of the agency's employees prior to the implementation of
any change in working conditions and then, upon request, bargain
concerning the impact and implementation of the change before
implementation of the change. This is to permit the collective
bargaining representative to engage in meaningful and effective
bargaining with the agency. After implementation of a change in working
conditions bargaining about the impact and implementation of such change
would not, absent very unusual circumstances, be very effective and
would be much less effective than bargaining before such change.
In the subject case therefore PASS was entitled to bargain about
impact and implementation of the random drug testing program prior to
its implementation. The determination of the date of implementation
became a fundamental question in this case. There is no doubt that the
drug program as a whole, including the random drug testing program as to
certain FAA employees, was implemented on or about September 8.
However, I conclude this date is not particularly relevant to PASS's
right to bargain concerning the impact and implementation of FAA's
random drug testing as it applies to the AVN and AF units represented by
PASS. Rather I conclude that PASS and FAA could continue to engage in
effective and meaningful impact and implementation bargaining until the
random drug testing program was implemented with respect to the AVN and
AF units. Thus until the first employee in either the AVN or AF units
became eligible for random testing PASS and FAA could engage in
meaningful and effective impact and implementation bargaining. Further
if the parties had not reached agreement FAA could have sought from DOT
a delay as to when such employees could be first tested. /37/ However,
when the first AVN and or AF units became eligible for immediate random
testing and the random testing program was implemented vis-a-vis these
units, PASS's capacity to meaningfully and effectively bargain over
impact and implementation with FAA became deminished. Once such
employees became eligible for immediate random drug testing, absent a
prior agreement postponing such testing, PASS was in a less advantageous
position to bargain about impact and implementation because such
employees were already subject, at any moment, to testing and all that
flowed therefrom. The employees in the unit were at that time directly
affected by and subject to the change in working conditions. See U.S.
Air Force, Lowry Air Force Base, 22 FLRA 171 (1986).
The record fails to establish by the weight of credible evidence that
on September 16 any employee in the AVN or AF unit was then immediately
eligible for random drug testing. Therefore on September 16, when PASS
abandoned the impact and implementation bargaining, the record does not
establish that the random drug testing of the AVN and AF units had yet
been implemented. /38/ Thus, solely with respect to the extent FAA and
PASS were engaged in impact and implementation bargaining, I conclude
that FAA did not implement the random drug testing program in the AVN
and AF units before the bargaining between FAA and PASS had been
concluded by virtue of PASS's abandonment of the bargaining. Thus, the
record fails to establish that either FAA or DOT failed to comply with
their Section 7106(b) obligations. /39/ Accordingly, I conclude that in
this aspect of the case neither FAA nor DOT violated Section 7116(a)(1)
and (5) of the Statute.
The General Counsel of the FLRA contends that FAA violated Section
7116(a)(1), (5) and (8) of the Statute by failing to furnish PASS with a
complete listing of all drug-related disciplinary/adverse action
incidents that have occurred over the past three years in the bargaining
units for which PASS is the exclusive collective bargaining
representative and for which FAA has been upheld in either a grievance
or MSPB proceeding.
PASS requested this information, along with other information, from
FAA by letter dated August 26 with a parenthetical note to this specific
item that, "Information provided should be sanitized in accordance with
any Privacy Act provisions." In its general introductory paragraph to
the request for all the information FAA stated, "Although we are
prepared to commence negotiations tomorrow we will require the following
additional information to fully develop our negotiating position: . .
." The letter then listed 11 specific requests for information, one of
which is the one set forth above that is the subject of this case. FAA
responded in its letter of September 1 and stated that with respect to
the specific requested information that is the subject herein, it would
not comply with the request because the agency did not maintain such
reports at the national level, it would be burdensome, the disclosure of
the information is limited by the Privacy Act and "this information is
neither relevant nor necessary for the development of proposals . . . "
Section 7114(b)(4) of the Statute provides that part of an agency's
duty to negotiate in good faith includes the obligation to furnish the
exclusive representative, to the extent not prohibited by law, data
which is normally maintained by the agency 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; and which does not constitute guidance,
advice, counsel or training provided for management officials or
supervisors, relating to collective bargaining.
The requested data, as requested, is not guidance, counsel or
training which would prevent its disclosure and FAA does not raise such
a contention. FAA in its letter to PASS denying the requested
information, and in the proceeding herein, contends that the requested
data is not maintained at the national level and to provide it would be
overly burdensome. The simple fact, undisputed, that the data was not
maintained at the national level does not relieve FAA of its obligation
to provide the requested data, see, Department of Defense Dependents
Schools, 28 FLRA 202 (1987) Decision on Remand, and 19 FLRA 790 (1985);
and Supervisor of Shipbuilding, Conversion and Repair, 31 FLRA 717, 724
(1988). Further, other than the general statement that collection of
the data would be "unduly burdensome," FAA did not establish sufficient
evidence to support a conclusion that collection of the data would be
unnecessarily costly, time consuming or difficult. See 22nd Combat
Support Group (SAC) March Air Force Base, California, 30 FLRA 582
(1987). Accordingly, I conclude based upon the foregoing and the nature
of the requested data and FAA's statement in the letter, that the
requested data is normally maintained by FAA in the regular course of
business.
FAA contends that providing the requested information, "might well
conflict" with FAA's right to determine internal security matters
because FAA is not obligated to disclose information that "might
compromise its investigations;" and would violate the Privacy Act and
the Supplemental Appropriations Act of 1987 (P.L. 100-71); and the
Executive Order Section 6 and OPM Systems, 52 Fed Reg 22564 (June 12,
1987). However PASS indicated the requested data could be provided in a
sanitized form and FAA made no showing or even contention that it could
not be sufficiently sanitized to meet all of the above considerations.
In this regard FAA contends that it is the General Counsel of the FLRA's
burden to establish that the requested information could actually be
adequately sanitized to meet FAA's objections. Such a position is
unreasonable. The information was requested in sanitized form, the data
was in the custody of FAA and not of PASS or the General Counsel of the
FLRA and FAA knew exactly by which requirements it felt limited. In
such a situation once PASS and the General Counsel of the FLRA meet the
requirement of establishing it is otherwise entitled to the information
and PASS is willing to accept it in sanitized form, FAA must then
establish that such data cannot be sanitized to meet the perceived
limitations on disclosure. /40/ FAA is clearly in a better position to
establish this than PASS or the General Counsel of the FLRA are to
establish the contrary. FAA did not establish that the requested data
could not be furnished in sanitized form so as to meet FAA's perceived
limitations on disclosure. /41/
Finally, FAA contends that it has not been established that the
requested information is necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining. FAA points out that the FLRA has held that a union must
show more than abstract relevance and that PASS's request stated no such
showing of the relevance or necessity for any of the requested data.
The FLRA has held that "a determination must be made in the
particular circumstances of each case whether data requested by an
exclusive representative is 'necessary' within the meaning of section
7114(b)(4) of the Statute and whether such information must be disclosed
. . . " Defense Mapping Agency, Aerospace Center, St. Louis, Missouri,
21 FLRA 595, 596 (1986).
In the subject case the parties were preparing to negotiate
concerning the impact and implementation of the new DOT Order and PASS
was preparing its bargaining proposals when it wrote the letter
requesting the subject data. PASS stated in the letter that it needed
the information so PASS could develop its negotiating position. In
these particular circumstances, I conclude PASS adequately demonstrated
to FAA and to the undersigned that the requested data was 'necessary'
within the meaning of section 7114(b)(4) of the Statute. Thus, in all
the circumstances present, especially in light of PASS's request and the
impending impact and implementation bargaining, obtaining any
information about the extent of the drug problem in the units
represented by PASS would be necessary for PASS to prepare its drug
testing impact and implementation proposals and to bargain. In these
circumstances PASS's need for the data was evident. FAA knew the
circumstances and PASS sufficiently advised FAA why it needed the
information. To require a labor organization, in these circumstances,
to be even more specific in justifying its need for data would be
unrealistic and would hamper the collective bargaining process by making
it overly formal. Thus, I conclude PASS, in the particular
circumstances of this case, needed the requested data and sufficiently
advised FAA as to why it needed the information. Further, I conclude
that PASS was entitled to this data under section 7114(b)(4) of the
Statute and FAA's failure to provide it violated section 7116(a)(1)(5)
and (8) of the Statute, Army and Air Force Exchange Service (AAFES),
Fort Carson, Colorado, 25 FLRA 1060 (1987); U.S. Army Corps of
Engineers, Kansas City District, Kansas City, Missouri, supra and
National Weather Service, 21 FLRA 455 (1986).
Finally General Counsel of the FLRA alleges that FAA violated section
7116(a)(1) and (5) of the Statute by declaring certain PASS proposals
non-negotiable and then by implementing the random drug testing program.
A number of the PASS proposals were declared non-negotiable by FAA
because they were in conflict with DOT's Order establishing the drug
program for which a compelling need exists and others because they were
inconsistent with other laws.
In light of FLRA v. Aberdeen Proving Ground, Department of the Army,
108 S. Ct. 1261 (1988), hereinafter called the Aberdeen Case, and
Federal Emergency Management Agency, 32 FLRA 502 (1988), herein called
the FEMA Case, the General Counsel of the FLRA withdrew the allegation
that FAA violated the Statute by declaring non-negotiable all the PASS
proposals that were alleged to be in conflict with DOT's Order for which
there was an alleged compelling need, except for Proposals 18A, 22E, 23,
and 30A of PASS 2 and Proposals 14A, 17E, 18 and 24A of PASS 3. In the
FEMA Case, supra. /41/ The FLRA held that when a determination of
non-negotiability is based upon the allegation that a proposal violated
an agency-wide rule or regulation for which there is a compelling need,
the negotiability determination can be made by the FLRA exclusively
pursuant to section 7117(b) of the Statute procedures and not in unfair
labor practice procedures. Thus, the General Counsel of the FLRA
withdrew its allegations as to such proposals, in this matter.
PASS filed a negotiability appeal in Case No. 0-NG-1456 in which it
brought FAA's determinations of non-negotiability before the FLRA. In
DOT's response /42/ to the submission, filed with the FLRA, DOT withdrew
its allegation that the duty to bargain did not extend to Proposals 18A,
22E, 23 and 30A of PASS 2. /43/ DOT's submission was filed pursuant to
section 2424.6 of the FLRA's Rules and Regulations. /44/
Upon filing its petition for review of the negotiability issue, PASS
requested, pursuant to section 2424.5 of the FLRA's Rules and
Regulations, that the subject unfair labor practice case be processed
and the negotiability matter was to be suspended. The Agency asked that
the FLRA process the negotiability matter and stay the unfair labor
practice case. The FLRA denied this request. Professional Airways
Systems Specialists, MEBA, AFL-CIO and Department of Transportation,
Federal Aviation Administration, 32 FLRA 517 (1988).
General Counsel of the FLRA urges that because, in its submission to
the FLRA in the negotiability case, DOT withdrew its allegations on
non-negotiability, those proposals are properly before me because they
no longer raise the compelling need issue. Thus the General Counsel of
the FLRA contends the negotiability of these proposals can be determined
in this unfair labor practice procedure and are not limited under the
FEMA Case, supra, to the procedure provided in section 7117( b) of the
Statute. FAA urges that it not be penalized in this case because it
tried to reasonably resolve issues in a different procedure.
I conclude that these proposals, which originally were deemed by FAA
to be non-negotiable because they were in conflict with the DOT Order
for which there is a compelling need and such allegation of
non-negotiability was withdrawn in the negotiability proceeding, are not
properly before me in the subject unfair labor practice proceeding.
In the Aberdeen Case, supra, the Supreme Court stated that when a
compelling need determination must be made, it must be done so by the
FLRA in a proceeding under section 7117(b) of the Statute and not under
the unfair labor practice procedure. The FLRA in the FEMA Case, supra
stated that when a compelling need issue is raised the matter must be
determined by the FLRA in a negotiability proceeding and can not be
determined in an unfair labor practice proceeding. Section 2424.5 of
the FLRA Rules and Regulations permits the labor organization to select,
when there are both unfair labor practice and negotiability proceedings
pending, which proceeding it wishes to pursue. However, if the labor
organization were to choose the unfair labor practice proceeding it
could not, by so doing, have a compelling need determination made in
such an unfair labor practice proceeding.
In the subject case, at an early stage of the negotiability
proceeding, DOT withdrew the allegation on non-negotiability as to
Proposals 18A, 22E, 23 and 30A of PASS 2 and presumably as to the
corresponding Proposals in PASS 3. However, there has been no final or
ultimate disposition of 0-NG-1456 and presumably until such disposition,
the dispute as to these Proposals have not been finally resolved. In
this regard I note that 2424.8 of the FLRA's Rules and Regulations
provides for the filing of additional submissions with the approval of
the FLRA. DOT's document is merely part of the negotiability proceeding
and is not an admission or concession for the purpose of the subject
unfair labor practice case. Thus, until the negotiability case is
closed, a final disposition made as to Proposals 18A, 22E, 23 and 30A of
PASS 2, and the corresponding proposals of PASS 3, and the compelling
need issue there involved, I conclude that it would not be proper to
consider the negotiability issues in the subject unfair labor practice
case. FEMA Case, supra. Thus, although PASS had the option of
proceeding with the unfair labor practice case first, by so doing it
meant that no proposals involving compelling need could be disposed of
in the unfair labor practice case. /45/ Accordingly, I conclude that I
cannot rule upon the negotiability of these proposals and therefore
cannot make any conclusion as to whether DOT and FAA violated the
Statute in declaring such proposals non-negotiable and then implementing
the random drug testing program.
When an agency declares a proposal made by a collective bargaining
representative non-negotiable in connection with a change in working
conditions, the agency does so at its peril. See Department of Health
and Human Services, Social Security Administration, Baltimore, Maryland,
31 FLRA 651 (1988).
Proposal 3 of PASS 2 provides that FAA shall use the HHS Scientific
and Technical Guidelines for Drug Testing and that all drug testing will
be performed by an independent contract laboratory certified by DOD.
The first sentence in this proposal requiring the use of the HHS
Guidelines is a restatement of a requirement in Executive Order 12564
and was included in DOT's Order. A proposal that simply restates that
which an agency is required to do by law or regulation is negotiable.
National Federation of Federal Employees, Local 2058, 31 FLRA 241
(1988), see proposals 2; American Federation of State County and
Municipal Employees, Local 3097, 31 FLRA 322 (1988), see proposals 1;
and American Federation of Government Employees, Local 1923, AFL-CIO, 21
FLRA 178 (1986). However, the underlying proposal and its underlying
subject must be otherwise negotiable. See U.S. Geological Survey, 21
FLRA 1109 (1986) and Department of Energy, 19 FLRA 224 (1985).
Respondents contends that this portion of the proposal conflicts with "a
reserved management right." Respondents do not explain or expand upon
the nature of this reserved management right and I perceive no such
management right being interfered with. Accordingly, I find the
proposals first sentence is negotiable. The second sentence of this
proposal, requiring use of a DOD approved laboratory, is alleged to be
non-negotiable because it is in conflict with the HHS Guidelines. The
HHS Guidelines, according to Respondents, require use of laboratories
certified by HHS, citing Supplemental Appropriations Act of 1987, P.L.
100-71 (July 11, 1987) and the details for certification of drug testing
facilities of the Secretary of HHS, 53 Fed. Reg. 11986.
The Supplemental Appropriations Act of 1987, P.L. 100-71 (July 11,
1987) does contemplate HHS issuing guidelines which provide for HHS
setting standards and certifying drug testing laboratories. There is no
dispute and I conclude that such guidelines issued by HHS which were to
regulate the drug testing program throughout the federal government are
"Government-wide" rules and regulations within the meaning of section
7117 of the Statute. On August 10, 1987, HHS issued proposed Guidelines
entitled Scientific and Technical Guidelines for Federal Drug Testing
Programs; Standards for Certification of Laboratories Engaged in Urine
Drug Testing for Federal Agencies, 52 Fed. Reg., No. 157, 30638-30652,
(August 14, 1987), hereinafter called the HHS August 1987 Guidelines.
These were proposed guidelines, inviting public comment before they
became final. These proposed guidelines included extensive provisions
for certification of laboratories by the Secretary of HHS. However, the
HHS August 1987 Guidelines, supra at 30638, provided "While the
certification system proposed by this notice is in development, Federal
agencies may use agency or contract laboratories that have been
certified for urinalysis testing by the Department of Defense (DOD).
The DOD certification process is extremely strict and sophisticated and,
during the interim period while the DHHS certification process becomes
operational, DHHS believes that DOD certification will be more than
adequate to ensure the full reliability and accuracy of drug tests and
the reporting of test results."
HHS issued its Final Guidelines on April 1, 1988 entitled Mandatory
Guidelines for Federal Workplace Drug Testing Programs, 53 Fed. Reg.
No. 69, 11970-11989, (April 11, 1988) hereinafter referred to as HHS
April 1988 Guidelines. These guidelines set forth a detailed system for
certifying laboratories by the Secretary of HHS and the Secretary of HHS
"may consider to be certified and (sic) laboratory that is certified by
a DHHS recognized certification program in accordance with these
Guidelines." HHS April 1988 Guidelines, supra at 11987.
In light of the foregoing, at the time PASS made this proposal not
only was the second sentence not in conflict with the then in effect HHS
guidelines, HHS August 1987 Guidelines, supra but it was merely stating
what was specifically encouraged by the guidelines and totally in
conformity with their spirit. /46/
Thus at the time Proposal 3 of PASS 2 was submitted by PASS it was
not non-negotiable because it was inconsistent with then in effect laws
or Government-wide rules and regulations. Accordingly, Respondents
erred in declaring Proposal 3 of PASS 2 non-negotiable.
Proposal 22C of PASS 2 /47/ provided that any randomly tested
employee shall be given a sample of his own specimen and the employee
shall be permitted to choose a laboratory to have a test made.
Basically similar proposals were held negotiable by the FLRA in National
Federation of Federal Employees, Local 15 and Department of the Army,
U.S. Army Armament, Munition and Chemical Command, 0-NG-1269 30 FLRA
1046 (1988), proposals 8 and 9, (hereincalled the U.S. Army Case).
Respondents point out that HHS April 1988 Guidelines, supra at 11971
and 11985 (paragraph 2.7(b)) reject the split sample procedure option.
Therefore Respondents urge the proposal is non-negotiable because it
conflicts with a Government-wide regulation. Respondents further note
that upon a motion filed by the Army, the U.S. Court of Appeals for the
District of Columbia, by Order dated May 25, 1988, remanded the U.S.
Army Case, supra, to the FLRA for consideration of its negotiability
determinations in light of HHS April 1988 Guidelines, which had issued
subsequent to the FLRA decision. By order dated July 13, 1988 the FLRA
directed the parties to file supplemental briefs. At the time Proposal
22(c) of PASS 2 was submitted and declared non-negotiable HHS April 1988
Guidelines were not in effect; rather HHS August 1987 Guidelines were
in affect and they contained no specific prohibition of the split sample
procedure. Thus, I conclude that at the time Proposal 22(c) of PASS 2
was submitted and declared non-negotiable, it was not in conflict with
any Government-wide regulation.
In this regard the difference between an unfair labor practice
proceeding and a negotiability proceeding under section 7117 of the
Statute must be examined. An unfair labor practice determines whether
an agency or labor organization violated its statutory obligation at a
specific time and, then if a violation is found, attempts to remedy such
a wrong. Whereas a negotiability appeal determines whether a proposal
is negotiable at the time the FLRA issues its decision and if it finds a
matter is negotiable it issues a prospective order instructing a party
to negotiate concerning the proposal. It does not try to remedy a past
wrong or the unlawful denial of a right, but rather determine, in the
future, if a proposal is to be negotiable.
Thus, the remand in the U.S. Army Case, supra is appropriate so the
FLRA can determine if it is appropriate to issue a prospective
negotiability order in light of the HHS April 1988 Guidelines, supra.
In the subject unfair labor practice case it must be determined whether
at the time Proposal 22(c) of PASS 2 was declared non-negotiable it was
in fact non-negotiable or whether Respondents, at that time, denied PASS
the right to bargain about Proposal 22(c) of PASS 2, before
implementation of the random drug testing program. Of course, in
considering the appropriate remedy, the current negotiability situation
must be considered.
I conclude that at the time Proposal 22(c) of PASS 2 was submitted
and declared non-negotiable, it did not violate any Government-wide
rules and regulations and was negotiable. See discussion in U.S. Army
Case, supra, of proposals 8 and 9. Accordingly, Respondents erred when
they declared it non-negotiable. The same conclusion applies to
Proposal 17(c) of PASS 3.
Proposal 11 of PASS 2 /48/ provided that PASS representatives will be
given the opportunity to attend drug related training programs sponsored
by FAA, on official time including travel and per diem. Both
Respondents and General Counsel of the FLRA agree that normally
training, including both the content of training and which employees
shall receive training, is non-negotiable because it infringes on
managements right to assign work, e.g. Overseas Education Association,
29 FLRA 734 (1987), proposal 47; American Federation of Government
Employees, 22 FLRA 710 (1986); American Federation of Government
Employees, 22 FLRA 574 (1986).
These cases all involved training of employees related to work and
career advancement. The FLRA held in these situations a collective
bargaining representative interferes with management's right to assign
work when the union tries to limit or participate in planning these
training programs. The subject case involves a different situation.
PASS wished its representatives to participate, on official time, in
employer sponsored drug training programs. Clearly such PASS
representatives were to participate in their capacity as PASS
representatives, not as FAA employees in duty status, so they could
better be able to represent employees during the random drug testing
program. Thus this proposal is not interfering with FAA's right to
assign work. Rather it deals with an employee functioning as a
representative of PASS in its representational capacity.
Section 7131(d) of the Statute specifically provides that an employee
shall be granted official time, in the amount to which an agency and
union agree, when the employee is representing an exclusive
representative. In this regard and where relevant travel and per diem
would be included in the official time provision, I conclude that
Section 7131(b) of the Statute applies herein and thus Proposal 11 of
PASS 2 is negotiable and Respondents erred in declaring it
non-negotiable.
The FLRA has held that when an agency declares a proposal concerning
a change in working conditions non-negotiable and then implements the
change, it violates Section 7116(a)(1) and (5) of the Statute if the
proposal was in fact negotiable. See Department of Health and Human
Services, Social Security Administration, supra; Department of the Air
Force, Air Logistics Command, Wright-Patterson Air Force Base, 22 FLRA
15 (1986) and Veterans Administration, Veterans Administration Regional
Office, Buffalo, New York, 10 FLRA 167 (1982).
In these cases the agencies' good faith in making the
non-negotiability determinations is irrelevant and not an issue. Of
course FAA was obligated to bargain about the impact and implementation
of the change in working conditions if the change has an impact on the
employees in the units represented by PASS. It is evident that the
imposition of the random drug testing would reasonably and foreseeably
have an impact on the employees in the units represented by PASS and
such impact would be more than de minimis.
Respondents also urge that PASS submitted its proposals as a package
and that therefore, apparently, since some of the proposals are
non-negotiable, Respondents did not violate the Statute even if it
declared other proposals non-negotiable which were in fact negotiable.
Respondents seem to be indicating that there was something sinister in
PASS's alleged submission of its proposals as a package.
The record herein do not establish PASS unduly stressed or reiterated
that its proposals must be dealt with as a package and that either all
the proposals must be accepted, or none. Rather, PASS seemed to submit
its various sets of proposals in the normal way such matters are handled
during collective bargaining, with the general understanding that there
is no final agreement until the parties reach agreement on all matters
and the agreement is complete. This is the usual method of bargaining
and each proposal or clause does not become effective when agreed upon,
until the agreement is complete or the parties agree that those matters
agreed upon will go into effect, while others may remain open.
PASS did not so condition its bargaining as to relieve Respondents of
their obligations to bargain in good faith.
The record herein establishes that DOT and FAA jointly decided which
PASS proposals were non-negotiable so, in effect both are responsible
for that decision. However, the record does not establish that during
the latter part of September FAA sought from DOT permission not to
implement the drug testing program. Rather, the record establishes that
after PASS abandoned bargaining on September 16, FAA was prepared and
willing to implement the random drug testing in the AVN and AF units.
Thus, although FAA was operating under orders from DOT to implement the
random drug testing program, the evidence does not establish that during
late September FAA tried to get DOT to permit FAA to refrain from the
program. Thus FAA is responsible for the implementation and did not so
act because it was so compelled by DOT.
In light of all of the above, I conclude that FAA violated Section
7116(a)(1) and (5) of the Statute when it declared Proposals 3, 11, and
22(c) of PASS 2 and Proposals 9 and 17(c) of PASS 3, non-negotiable and
then implemented the random drug testing program in the AVN and AF
Units.
In the circumstances present in this case, I conclude that with
respect to the violations of the Statute found herein that a status quo
ante remedy is not appropriate. In so concluding I note the random drug
testing program involves the public safety, one Proposal /49/ involved a
matter that was negotiable at the time of the unfair labor practice but
might not be negotiable now and another /50/ which although negotiable
at the time of the unfair labor practices might be negotiable to a more
limited extent now. Thus looking at the nature to the unfair labor
practice, as a whole, the extent to which there can still be meaningful
impact bargaining and the interest in the safety of the public, I
conclude repealing the random drug testing program in the AVN and AF
units is not warranted.
Having concluded that FAA violated section 7116(a)(1), (5) and (8) of
the Statute by refusing to supply PASS with certain requested data and
section 7116(a)(1) and (5) of the Statute by declaring certain PASS
proposals non-negotiable and then implementing the random drug testing
program in the AVN and AF units, I recommend the Authority issue the
following Order.
The complaint herein against the Department of Transportation is
hereby DISMISSED.
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 Authority hereby orders
that Federal Aviation Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of Professional Airways Systems
Specialists, MEBA, AFL-CIO, a complete listing of all drug-related
disciplinary/adverse action incidents that have occurred over the past
three years in bargaining units it represents and for which Federal
Aviation Administration has been upheld in either grievance or MSPB
proceeding, in sanitized form and to the extent permitted by law.
(b) Failing and refusing to meet and negotiate with Professional
Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative
of certain employees, over negotiable proposals with respect to the
procedures which the Federal Aviation Administration will observe in
exercising its authority with regard to any change in random drug
testing and concerning appropriate arrangements for employees adversely
affected by such change, to the extent permitted by law.
(c) In any like or related manner, interfering with, restraining or
coercing employees in the exercise of any right assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of Professional Airways Systems Specialists, MEBA,
AFL-CIO, the exclusive representative of certain employees, furnish it
with a complete list of all drug related disciplinary/adverse action
incidents that have occurred over the past three years in bargaining
units it represents and for which Federal Aviation Administration has
been upheld in either grievance or MSPB proceedings, in sanitized form
and to the extent permitted by law.
(b) Upon request of Professional Airways Systems Specialists, MEBA,
AFL-CIO, the exclusive representative of certain employees, meet and
negotiate with such representative concerning any of the proposals found
negotiable herein and submitted in connection with the implemented
changes in Federal Aviation Administration's random drug testing
program, to extent permitted by law.
(c) 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 a responsible official 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, 1111-18th Street, N.W., P.O. Box 33758, Washington,
D.C. 20033-0758, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply with the Order.
Issued, Washington, D.C., July 18, 1989
SAMUEL A. CHAITOVITZ
Administrative Law Judge
(1) The facts that are set forth in the Judge's Decision are
summarized and augmented here.
(2) On this particular point, PASS representative Johannssen
testified that FAA representative Baldwin did not tell him that testing
in the PASS units probably would not happen until the end of September.
However, the Judge has generally credited Baldwin rather than Johannssen
where there are disparities in their accounts of what occurred at this
and subsequent meetings and no party to this case has excepted to the
Judge's credibility determinations.
(3) Proposal 22C of PASS 2 is identical to Proposal 17C of PASS 3.
(4) Proposal 11 of PASS 2 is identical to Proposal 9 of PASS 3.
(5) Identical to Proposals 14A, 17E, 18 and 24A of PASS 3.
(6) As discussed earlier, the Respondents' opposition and
cross-exceptions were untimely filed and will not be considered here.
(7) In support of this argument, the Charging Party takes issue with
the Judge's finding that the record did not establish that any
bargaining unit employee was eligible for random drug testing before
September 28, arguing that a preponderance of the evidence supports a
conclusion that at least one bargaining unit employee was eligible for
testing on September 8.
(8) We note that the circumstances here are distinguishable from
those involved in Federal Employees Metal Trades Council and U.S.
Department of the Navy, Mare Island Naval Shipyard, Vallejo, California,
38 FLRA 1410 (1991) (Mare Island). In this case, unlike Provision 3 in
Mare Island, the request involves sanitized information and does not
seek the disclosure of actual drug testing results. Further, it is
limited in scope. Compare U.S. Department of Justice, Immigration and
Naturalization Service, 37 FLRA 1346, 1362-64 (1990), petition for
review as to other matters filed sub nom. U.S. Department of Justice,
Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir.
Dec. 27, 1990) (blanket, unsanitized disclosure of all proposed and
final disciplinary and adverse actions to the union without an
expressed, particularized need for the actions is prohibited by the
Privacy Act).
(9) It is clear from the record that several actions relating to the
issuance and implementation of DOT Order 3910.1 occurred prior to
September 1987 -- for example, the issuance of the Order itself as well
as the 60-day and 30-day notices. Because all that is before us is the
question of whether the actions that occurred on or about September 8,
1987, constituted the implementation of a change in working conditions,
we do not address the question of the extent to which earlier actions
taken with respect to DOT Order 3910.1 may have constituted the
implementation of changes in conditions of employment.
(10) The issue of whether DOT may have had obligations with regard to
its national consultation rights under section 7113 of the Statute is
not before us.
(11) In reaching our decision we do not rely on the Judge's finding
at page 18 of his decision that "DOT could have and was prepared to
postpone testing of the unit members, at the request of the FAA."
(12) PASS takes the same position as the GC in its exceptions to the
Judge's Decision.
(13) Proposal 11 is identical to Proposal 9 of PASS 3; and Proposal
22C is identical to Proposal 17C of PASS 3.
(14) In his discussion of this proposal the Judge stated at note 30
of his decision that, "it seems obvious that any lawful contract clause
that becomes either unlawful or in violation of Government-wide rules
and regulations would become unenforceable." We do not adopt this
statement. Under section 7116(a)(7) of the Statute, an agency may not
"enforce any rule or regulation (other than a rule or regulation
implementing (5 U.S.C. Section 2302)) which is in conflict with any
applicable collective bargaining agreement if the agreement was in
effect before the date the rule or regulation was prescribed(.)" The
"rule or regulation" referred to includes Government-wide rules and
regulations. For example, 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, 193 (1990).
(15) We note that the Final Guidelines, by their terms, apply to DOT.
See Final Guidelines, section 1.1(a)(1) and (b).
(16) We note that in G.C. Exh. 35 (the agency statement of position
filed in Case No. 0-NG-1456), DOT asserts that Proposal 3 also
interferes with management's right under section 7106(b)(1) to determine
the "methods and means of testing, and the technology to be used with
respect to the internal security practices of the agency." G. C. Exh.
35 at 18. Assuming, without deciding, that the proposal directly
interferes with that additional management right, we conclude that it
would constitute an appropriate arrangement in the context of the right
to determine the technology, methods and means of performing work for
the same reasons discussed above with regard to management's exercise of
its right to determine its internal security practices.
(17) Identical to Proposal 9 of PASS 3.
(18) DOT and FAA will hereinafter collectively be referred to as
Respondents.
(19) Approximately 40,000 of the employees are uniformed Coast Guard
personnel.
(20) Hereinafter referred to as the DOT Order.
(21) The DOT Order established a relatively broad program with a
number of aspects, i.e. drug awareness, rehabilitation, etc., which
included drug testing which, in turn, included random, periodic,
reasonable suspicion, and mandatory testing, among others.
(22) The FAA and PASS master collective bargaining agreement
involving the AF unit was about to expire. The parties were meeting to
discuss the logistics and ground rules for these national contract
negotiations. The national contract negotiations were scheduled for
August 18-27, 1987.
(23) As well as two other items in addition to the national contract
negotiations.
(24) Johannssen was at his home on vacation. Baldwin knew this.
(25) OST also sent PASS a copy of the 30 day notice and the cover
letter stated that the 30 day notice was being distributed to employees
commencing August 7, 1987.
(26) In this regard the only evidence of such receipt is Johannssen's
testimony, on cross-examination. Johannssen testified that the first
employee received the notice "I think it was on August 9th, if I recall
correctly." He went on to testify that one, unnamed, PASS Regional Vice
President in the Southern Region "indicated that an employee had
received a letter on August 9th." Although hearsay is admissible and
findings can be based upon it, this is 2nd hand hearsay and too
unreliable and too far removed from the fact to base such a basic and
important finding of fact.
(27) In determining what occurred at this and subsequent meetings I
note there was general agreement among witnesses as to what occurred.
However, when there is a disparity I found Baldwin a more credible
witness than Johannssen. I found Baldwin to be more forthcoming and
less evasive than Johannssen. Further Baldwin's version was more
consistent with surrounding facts. Also his memory seemed more reliable
and less helpful to his position than Johannssen's. Finally Baldwin's
demeanor, as compared to Johannssen's convinces me Baldwin is the more
credible witness. I do not rely on Respondents' novel contention that
Johannssen's version of what Baldwin said at these meetings is hearsay,
because Johannssen is testifying as to what he heard, whereas Baldwin's
version is not hearsay because Baldwin was the speaker. I specifically
reject this unusual contention, noting that the two versions of what was
said at these meetings do not constitute hearsay at all.
(28) PASS 3 contained, inter alia, the following proposals:
Proposal 9 which is identical to Proposal 11 of PASS 2.
Proposal 14A which is identical to Proposal 18A of PASS 2.
Proposal 17C which is identical to Proposal 22C of PASS 2.
Proposal 17E which is identical to Proposal 22E of PASS 2.
Proposal 18 which is identical to Proposal 23 of PASS 2.
Proposal 24A which is identical to Proposal 30A of PASS 2.
(29) During this general period of time FAA representatives had
approached DOT regarding a delay in implementation and DOT had decided
not to delay implementation and to continue to implement on September 8.
(30) This includes PASS 2 Proposals 18 (all parts), 22E, 23, and 30A.
(31) This includes:
Proposals 3, which was alleged to be non-negotiable because it
concerns matters covered under 5 USC 7106(a)(1) and 5 USC 7117(a)(2) and
is contrary to Public Law 100-71 Section 503;
Proposal 11, which is alleged to be inconsistent with 5 USC 7106(a)(
2)(A) and (B); and
Proposals 22C because it concerns matters covered by 5 USC 7106(b)(
1).
(32) This would therefore apply to:
PASS 3 Proposal 9 which is the same as Proposal 11 of PASS 2.
PASS 3 Proposal 14A which is the same as Proposal 18A of PASS
2.
PASS 3 Proposal 17C which is the same as Proposal 22C of PASS
2.
PASS 3 Proposal 17E which is the same as Proposal 22E of PASS
2.
PASS 3 Proposal 18 which is the same as Proposal 23 of PASS 2.
PASS 3 Proposals 24A which is the same as Proposal 30A of PASS
2.
(33) The FAA was available before September 16.
(34) But see Johnson-Bateman Co., 295 NLRB No. 29 (1989) and Star
Tribune, A Division of Carales Media Co., 295 NLRB No. 63 (1989).
(35) This is solely with respect to those PASS proposals which FAA
agreed were negotiable. This does not apply to those PASS proposals
which FAA declared non-negotiable.
(36) In so finding, I do not find that implementation of the DOT
Order did not involve any other changes in working conditions with
respect to the AF and AVN units. Rather, my finding is limited to the
record herein and no evidence was adduced that, other than random
testing, there were any changes in working conditions with respect to
the AF and AVN units.
(37) In this regard, based upon the record, I conclude that after
reasonable bargaining and as the date of testing unit employees
approached FAA could have sought a delay in testing and DOT would have
considered such a request and might have granted it.
(38) In so finding I do not find, as urged by DOT and FAA, that
PASS's bargaining conduct was so egregious and in such bad faith as to
somehow relieve FAA and DOT of their statutory obligations. Thus, I
find that no party acted in such a manner, standing by itself, as to
either constitute bad faith or a failure to meet its statutory
obligation. In so stating however, I do not render any opinion as to
the propriety or desirability of any party's conduct.
(39) Again I reiterate this applies only to the bargaining over PASS
proposals which FAA concluded were negotiable and about which the
parties were bargaining.
(40) In fact with respect to the "internal security" limitation FAA
contended, not that disclosure of the data would interfere with FAA's
obligations, but rather such disclosure "might well conflict" with FAA's
rights.
(41) Further, in balancing the interests of PASS's need for the
information and the interests of the Privacy Act, I conclude PASS is
entitled to the information. American Federation of Government
Employees, AFL-CIO, Local 1858, 27 FLRA 69, 76-77, (1987); U.S. Army
Corps of Engineers, Kansas City District, Kansas City, Missouri, 22 FLRA
667 (1986).
(41) The other proposals which are the subject of this case, which
were declared non-negotiable by FAA because they allegedly violated
other laws will be discussed later herein.
(42) Presumably also filed on behalf of FAA.
(43) Which are the same as Proposals 14A, 17E, 18 and 24A of PASS 3.
(44) Section 2424.6 of the FLRA's Rules and Regulations provides for
the filing of the position of the agency and sets forth one response as
"(1) Withdrawing the allegation that the duty to bargain in good faith
does not extend to the matter proposed to be negotiated; . . . "
(45) Presumably if the negotiability case proceeded first, the
compelling need issues would be resolved by the FLRA therein and then
all such matters could be the subject of the unfair labor practice case.
(46) In so concluding I need not decide whether the proposal's second
sentence was in conflict with HHS April 1988 Guidelines, supra, because
they did not come into existence for 7 or 8 months after the proposal.
It is not so clear that the proposal would have violated such
guidelines, but that is irrelevant herein. The fact that a proposal
lawful when made and declared non-negotiable at that time, later may
become non-negotiable by subsequent events, does not justify the
original refusal to negotiate. Similarly, it seems obvious that any
lawful contact clause that becomes either unlawful or in violation of
Government-wide rules and regulations would become unenforceable.
(47) Identical to Proposal 17C of PASS 3.
(48) Identical to Proposal 9 of PASS 3.
(49) Proposal 3 of PASS 2.
(50) Proposal 22(c) of PASS 2.
WE WILL NOT refuse to furnish, upon request of Professional Airways
Systems Specialists, MEBA, AFL-CIO, a complete listing of all
drug-related disciplinary/adverse action incidents that have occurred
over the past three years in bargaining units it represents and for
which Federal Aviation Administration has been upheld in either
grievance or MSPB proceeding, in sanitized form and to the extent
permitted by law.
WE WILL NOT fail and refuse to meet and negotiate with Professional
Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative
of certain employees, over negotiable proposals with respect to the
procedures which the Federal Aviation Administration will observe in
exercising our authority with regard to any change in random drug
testing and concerning appropriate arrangements for employees adversely
affected by such change, to the extent permitted by law.
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, upon request of Professional Airways Systems Specialists,
MEBA, AFL-CIO, the exclusive representative of certain employees,
furnish it with a complete list of all drug related disciplinary/
adverse action incidents that have occurred over the past three years in
bargaining units it represents and for which Federal Aviation
Administration has been upheld in either grievance or MSPB proceedings,
in sanitized form and to the extent permitted by law.
WE WILL, upon request of Professional Airways Systems Specialists,
MEBA, AFL-CIO, the exclusive representative of certain employees, meet
and negotiate with such representative concerning any of the proposals
found negotiable and submitted in connection with the implemented
changes in Federal Aviation Administration's random drug testing
program, to extent permitted by law.
(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, Region III,
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.
40 FLRA 657
40 FLRA NO. 60
NAGE and Veterans Administration, Veterans Administration Medical
Center, Department of Memorial Affairs, Case No. 0-NG-1640 (Decided May
3, 1991)
7105(a)(2)(E), 7106(a)(2)(B), 7106(b)(3), 7115(a)
NEGOTIABILITY DETERMINATION
HOURS OF WORK AND TOURS OF DUTY
GOVERNMENT-WIDE LAW AND REGULATION
5 U.S.C. 6101
CONSECUTIVE DAYS OFF
STORAGE OF EQUIPMENT, PERSONAL CLEANUP TIME, CHANGE OF CLOTHING
RIGHT TO ASSIGN WORK
APPROPRIATE ARRANGEMENTS
OVERTIME
SICK LEAVE
5 U.S.C. 6307
EQUAL DISTRIBUTION OF WORK WITHIN CLASSIFICATION
PAYROLL DEDUCTION OF UNION DUES
VIOLATION OF STATUTE
At issue in Provision 1 was a sentence that provided that whenever
possible, employees will be given two consecutive days off, preferably
Saturday and Sunday. The Authority found the provision to be
negotiable, rejecting the Agency argument that the provision did not
permit consideration of the exceptions contained in 5 U.S.C. 6101 and
the C.F.R. In the Authority's view, the Provision does not require the
Agency to establish work schedules in any manner that is inconsistent
with applicable law or regulation.
At issue in Provision 2 were two sentences that provided that
employees will be allowed to cease work in the field fifteen minutes
prior to the end of the daily tour of duty, and that these last fifteen
minutes shall be used exclusively for storage of equipment, personal
cleanup, and change of clothing. The Authority found that the provision
is consistent with law, noting a recent decision in which the Authority
stated that they would no longer adhere to previous Authority decisions
holding that proposals providing for cleanup time are inconsistent with
5 U.S.C. 6101. The Authority further found that while the proposal
directly interferes with the right to assign work, it is a negotiable
appropriate arrangement under 7106(b)(3).
Provision 4, which requires that overtime will normally be scheduled
in 8-hour blocks on Saturday, was found to interfere with the right to
assign work, but to be a negotiable appropriate arrangement under 7106(
b)(3). The Authority noted particularly the Union's undisputed
contention that the provision reflects the Agency's existing practice as
to the scheduling of overtime and concluded that the burden imposed on
management's ability to schedule and complete work on overtime does not
outweigh the benefit to employees of that practice in alleviating the
physical demands of the overtime work.
Provision 5 requires that the starting time for overtime assignments
scheduled on Saturday will be the same as for the regular workweek,
unless a majority of the affected employees agree to a different
starting time. The Authority concluded that the provision directly
interferes with management's right to assign work and, because it
excessively interferes with the right to assign work, it does not
constitute an appropriate arrangement. The Authority noted that the
provision restricts management's ability to assign work by preventing
the Agency from establishing when the Saturday overtime period will
start by subjecting that decision to the agreement of affected
employees.
The disputed portion of Provision 6 provided that sick leave will be
granted to employees when they are incapacitated for performance of
their duties because of illness, under certain circumstances involving
contagious diseases as set forth in applicable regulations, or for
medical, dental, or optical examination or treatment when required and
requested prior to the beginning of the absence. The Authority noted
the provisions of 5 U.S.C. 6307 and implementing regulations and the
fact that the provision was substantially similar to the language of the
C.F.R., and concluded that the provision did not violate law. Further,
while finding that the provision interferes with management's right to
assign work, the Authority concluded that it was an appropriate
arrangement.
Provision 8 provides that employees' skills will be utilized to the
maximum extent possible within their job classification and that to the
extent possible, work will be distributed equitably among personnel
within job classifications. The Authority found that the proposal
directly interferes with management's right to assign work under 7106(
a)(2)(B). In reaching this conclusion, the Authority noted its
recognition that terms such as "equitable" or "equitably" have been
found to have varying substantive effects. Because the Authority
concluded that these terms, when used in proposals that govern the
exercise of management rights, constitute substantive restrictions on
the exercise of that right, the Authority stated that it would no longer
follow prior precedent to the extent that those cases hold that the use
of the terms "equitable" or "equitably" do not constitute a substantive
limitation. However, the instant provision was found to not excessively
interfere with the right to assign and, thus, to constitute a negotiable
appropriate arrangement.
The portion of Provision 9 at issue provides that an employee
revocation of a union dues allotment authorization will take effect the
pay period following the next annual revocation date, which will be
March 1 of each year. The Authority concluded that the sentence of
Provision 9 was nonnegotiable because it is inconsistent with section
7115(a) of the Statute, which provides that an authorization may not be
revoked for a period of 1 year. Under Provision 9, employees would be
precluded from revoking dues authorizations, in almost all cases, for a
period in excess of 1 year.
Case No. 0-NG-1640
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
(Union)
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER,
DEPARTMENT OF MEMORIAL AFFAIRS /1/
(Agency)
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). It concerns the
negotiability of seven provisions of a negotiated agreement that were
disapproved by the Agency head under section 7114(c) of the Statute.
/2/
Provision 1 requires that whenever possible employees will be given 2
consecutive days off, preferably Saturday and Sunday. We find that
Provision 1 is negotiable because it is consistent with applicable law
and Government-wide regulation.
Provision 2 requires that employees be allowed 15 minutes prior to
the end of their tour of duty for storage of equipment, personal
cleanup, and change of clothing. We find that Provision 2 is negotiable
because it is consistent with applicable law and because it constitutes
an appropriate arrangement under section 7106(b)(3) of the Statute.
Provision 4 requires that overtime will normally be scheduled in
8-hour blocks on Saturday. We find that Provision 4 constitutes a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute because it does not excessively interfere with management's
right to assign work under section 7106(a)(2)(B).
Provision 5 requires that the starting time for overtime assignments
scheduled on Saturday will be the same as for the regular workweek,
unless a majority of the affected employees agree to a different
starting time. We conclude that Provision 5 is nonnegotiable because it
excessively interferes with the Agency's right to assign work under
section 7106(a)(2)(B).
Provision 6 sets forth the circumstances in which the Agency will
grant sick leave. We find that Provision 6 is negotiable because it is
consistent with applicable law and Government-wide regulation and
because it constitutes an appropriate arrangement under section 7106(
b)(3).
Provision 8 requires the Agency to utilize employees' skills to the
maximum extent possible and, to the extent possible, to distribute the
work equitably, within employees' job classifications. We find that
Provision 8 is negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute because it does not excessively interfere with
management's right to assign work under section 7106(a)(2)(B).
Provision 9 provides that an employee may request to revoke his or
her authorization for union dues allotment after the allotment has been
in effect for 1 year. The request will take effect on the pay period
following the next March 1 that occurs after the request is made. We
find that Provision 9 is nonnegotiable because it is inconsistent with
the requirements of section 7115(a) of the Statute.
Article 8 -- Hours of Work and Tours of Duty
Section 1. The normal basic work week shall be forty (40) hours
within an administrative work week of seven (7) days beginning at
0001 Sunday and ending at 2400 Saturday. The normal work day will
consist of eight (8) hours. Whenever possible, employees will be
given two (2) consecutive days off, preferably Saturday and
Sunday. In the event that six or seven days coverage is required,
necessitating the establishment of more than one workweek, every
effort will be made to assure that equal treatment is afforded
employees with respect to Saturdays and Sundays. Uncommon tours
of duty that do not afford an employee two (2) consecutive days
off between normal workweeks will be kept to a minimum. (Only the
underscored portion of the provision is in dispute.)
A. Positions of the Parties
1. Agency
The Agency argues that Provision 1 is nonnegotiable because it is
inconsistent with law and Government-wide regulation. The Agency
asserts that 5 U.S.C. Section 6101 and 5 C.F.R. Section 610.121 require
it to consider whether the scheduling of work corresponds with work
requirements in a manner that will be cost efficient and will accomplish
the mission of the Agency. Agency's Statement of Position at 7. Citing
the Authority's decision in Tidewater Virginia Federal Employees Metal
Trades Council and Department of the Navy, Navy Public Works Center,
Norfolk, Virginia, 25 FLRA 3 (1986) (Tidewater), the Agency contends
that Provision 1 prevents it from fulfilling the requirements contained
in 5 U.S.C. Section 6101 and 5 C.F.R. Section 610.121 because the
provision requires the Agency to schedule 2 consecutive days off for
employees. Id. at 8.
2. Union
The Union contends that Provision 1 is consistent with law and
Government-wide regulation. The Union asserts that the use of the
phrase "whenever possible" is intended to encourage, but not require,
the Agency, when scheduling would permit, to grant employees 2
consecutive days off. Union's Petition for Review at 1. The Union
contends that Provision 1 is like Proposal 3 in National Association of
Government Employees, Local R14-8 and Veterans Administration Medical
Center, Topeka, Kansas, 24 FLRA 126 (1986), which provided that "(o)
rdinarily employees' days off will be consecutive." The Union argues
that the Authority found the proposal to be negotiable because it did
not require consecutive days off where the agency determines that such
scheduling would adversely affect its mission.
The Union contends further that Provision 1 is distinguishable from
the Tidewater case relied on by the Agency. The Union notes that the
proposal in that case prevented management from scheduling overtime
without union approval. According to the Union, Provision 1 recognizes
that factors such as the Agency's mission and actual work requirements
could make scheduling 2 consecutive days off impossible, and, in those
circumstances, the Agency would not be required to schedule 2
consecutive days off. Union's Response to the Agency's Statement of
Position at 1-2. The Union states that "(t)he factors in 5 C.F.R.
610.121 may certainly be taken into account." Id. at 2. Finally, the
Union argues that Provision 1 merely codifies the Agency's long-standing
practice of scheduling 2 consecutive days off. Id.
B. Analysis and Conclusions
We conclude that Provision 1 is consistent with applicable law and
regulation and, therefore, that it is negotiable.
Under 5 U.S.C. Section 6101, an agency is required to schedule tours
of duty not less than 7 days in advance except when the head of an
agency determines that the agency would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased. The provisions of 5 U.S.C. Section 6101 are implemented by 5
C.F.R. Section 610.121, which provides, in pertinent part, as follows:
(a) Except when the head of an agency determines that the agency
would be seriously handicapped in carrying out its functions or
that costs would be substantially increased, he or she shall
provide that -- . . . .
(2) The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive;
(b)(1) The head of an agency shall schedule the work of his or
her employees to accomplish the mission of the agency(.)
The Authority has found that 5 C.F.R. Section 610.121 is a
Government-wide regulation. International Brotherhood of Electrical
Workers, Local 2080 and Department of the Army, U.S. Army Engineer
District, Nashville, Tennessee, 32 FLRA 347, 353 (1988) (U.S. Army
Engineer District).
In sum, 5 U.S.C. Section 6101 and 5 C.F.R. Section 610.121(a)(2) and
(b)(1) require an agency to establish as a basic workweek employee work
schedules which include Monday through Friday, when possible, with 2
consecutive days off. The requirement to schedule a workweek of Monday
through Friday, whenever possible, with Saturday and Sunday off, is
subject to two exceptions. The agency may depart from the required
workweek when it determines that adherence to that workweek would: (1)
substantially increase costs; or (2) seriously handicap the agency in
carrying out its functions.
The applicable provisions of law and regulation and Provision 1 both
provide for a Monday through Friday workweek with Saturday and Sunday
off, "when possible." We must, therefore, decide whether Provision 1
would preclude the Agency from changing the basic workweek in
circumstances where such a change is permissible under law and
regulation.
Provision 1 provides that the workweek will be Monday through Friday,
with Saturday and Sunday off, "whenever possible." The Union claims that
the provision would not preclude changes in the scheduled workweek where
the Agency determines that its "mission or actual work requirements"
require a change because in those circumstances it would not be possible
to comply with the scheduled workweek. Union's Response at 1. The
Agency contends that the provision does not permit consideration of
whether costs would be increased or the Agency would be handicapped in
carrying out its mission. The Agency asserts that "the language . . .
'whenever possible' is a guarantee of scheduling two days off" and does
not permit consideration of whether the Agency's costs would be
increased or whether the Agency would be handicapped in carrying out its
mission. Agency's Statement of Position at 7.
We reject the Agency's argument that the provision does not permit
consideration of the exceptions contained in 5 U.S.C. Section 6101 and 5
C.F.R. Section 610.121. In view of the use of the phrase "when
possible" in 5 C.F.R. Section 610.121(a)(2), we fail to see how the use
of the phrase "whenever possible" in Provision 1 would impose on the
Agency any requirements or limitations different from those imposed by
the regulation. The Agency does not offer any specific examples of how
Provision 1 would interfere with its consideration of the scheduling
factors required by law and regulation. In our view, the provision, and
the applicable regulations, merely require the Agency to give employees
2 consecutive days off whenever possible. Nothing in the provision
would prevent the Agency from determining, under 5 C.F.R. Section
610.121(a), that, because of costs or a determination by the Agency that
its mission would be handicapped, such a schedule is not possible.
We conclude, therefore, that Provision 1 is not inconsistent with 5
C.F.R. Section 610.121. Thus, we find that our conclusion with respect
to Provision 1 in this case is distinguishable from the Authority's
holding in Tidewater. In that case, the Authority held that the
disputed proposal was inconsistent with 5 C.F.R. Section 610.121 because
the proposal required the agency to establish work schedules subject to
union approval and, consequently, precluded the agency from determining
whether a given work schedule would increase costs or handicap the
agency in carrying out its functions.
Because Provision 1 does not require the Agency to establish work
schedules in any manner that is inconsistent with applicable law or
regulation, we find that the provision is negotiable. See, for example,
U.S. Army Engineer District, 32 FLRA at 354.
Article 8 -- Hours of Work and Tours of Duty
Section 2. A period of thirty (30) minutes commencing not earlier
than three (3) hours and not later than five (5) hours after the
start of work shall be designated as the lunch period. When
feasible, a fifteen (15) minute rest period will be provided in a
comfortable area as determined by the employer during each
approximate four (4) hour portion of the workday. The breaks
should be allowed as close to the mid-point of the four-hour
period as possible, normally around 9:30 a.m. and 2:15 p.m. Rest
periods may not be taken in conjunction with the lunch period, nor
utilized to shorten the day. Employees will be allowed to cease
work in the field fifteen (15) minutes prior to the end of the
daily tour of duty. The last fifteen (15) minutes of the workday
shall be used exclusively for storage of equipment, personal
cleanup, and change of clothing. (Only the underscored portion of
the provision is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Provision 2 is inconsistent with
management's right to assign work under section 7106(a)(2)(B) and that
it conflicts with law. Citing the Authority's decision in U.S. Army
Engineer District, the Agency argues that, by requiring that employees
be permitted to use the last 15 minutes of the scheduled workday to
personally clean up, the provision prevents management from assigning
other work to employees during that time period. Agency's Statement of
Position at 9-10. The Agency also argues that the provision is
inconsistent with 5 U.S.C. Section 6101 because it requires that time
used for an activity that is not work must be included in the 40 hours
of "work" required by 5 U.S.C. Section 6101. Id. at 10-11.
The Agency contends that Provision 2 is not an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
The Agency argues that the Union incorrectly equates the effects of
routine job responsibilities with adverse effects and notes that
employees already are afforded cleanup time at the discretion of the
Agency. Agency's Statement of Position at 11-12 and Supplemental
Position at 7.
Further, the Agency contends that the Authority's decision in The
Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S.
Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA
1250 (1988) (Bureau of Engraving and Printing) is not applicable to the
issues presented by Provision 2. The Agency states that in Bureau of
Engraving and Printing, the allowance of time for personal cleanup was
found to be an appropriate arrangement because: (1) the employees were
exposed to toxic and hazardous substances in high concentration just
before lunch; (2) cleanup was required in order to maintain minimal
protection of the employees' health and safety of employees; and (3)
employees were subject to discipline for their failure to perform the
required personal cleanup.
Unlike the work situation in Bureau of Engraving and Printing, the
Agency argues that the requested cleanup time is at the end of the day
and: (1) the work itself does not involve a high or intense exposure to
toxic or hazardous substances; (2) personal cleanup is not required to
maintain the health and safety of employees; and (3) the employees are
not subject to discipline for failure to perform personal cleanup.
Agency's Supplemental Statement of Position at 7.
The Agency argues that the provision, therefore, excessively
interferes with management's right to assign work under section 7106(
b)(3).
2. Union
The Union states that the adverse effects of denying personal cleanup
time would be to "force employees to mitigate the effects of their job,
such as dirt, on their own time, even though they got dirty on the job."
Union's Appeal at 2. In its response to the Agency's supplemental
statement, the Union argues that Provision 2 is virtually identical to
the provision found negotiable in Bureau of Engraving and Printing.
Union's Response at 2. The Union asserts that the employees' "duties
bring them in constant contact with dirt, grime, oil, grease, lawn care
chemicals, pesticides, herbicides, and so forth," and that it is
therefore "most reasonable to allow employees to clean up from their
dirty work, and to have the opportunity to get rid of dirt and toxic
substances." Id. The Union argues that, because employees must turn in
and store their equipment, it is of benefit to the Agency to allow them
to accomplish this on regular work time rather than after the end of the
shift when overtime would have to be paid. Id. Finally, the Union
asserts that the provision simply recognizes the Agency's past practice
of providing employees with personal cleanup time. Id.
B. Analysis and Conclusions
We conclude that Provision 2 is consistent with law within the
meaning of section 7117(a)(1). /3/ We also conclude that the provision
constitutes a negotiable appropriate arrangement under section 7106(b)(
3) of the Statute because it does not excessively interfere with
management's right to assign work under section 7106(a)(2)(B).
Provision 2 would require the Agency to release employees from work
15 minutes before the end of their daily tour of duty for purposes of
equipment storage, personal cleanup, and clothing changes.
In American Federation of Government Employees, Local 2022 and U.S.
Department of the Army, Headquarters, 101st Airborne Division, Fort
Campbell, Kentucky, 40 FLRA No. 38 (1991) (Fort Campbell) (Member
Armendariz concurring), we reexamined the Authority's previous decisions
involving employees' cleanup time. Based on that reexamination, we held
that even though the proposal in that case, which required the agency to
provide employees with cleanup time both during their regularly
scheduled workdays and during scheduled overtime assignments, directly
interfered with management's right to assign work under section
7106(a)(2)(B), the proposal nonetheless constituted a negotiable
appropriate arrangement under section 7106(b)(3) because it did not
excessively interfere with management's right to assign work.
In reaching the decision in that case, we held that, under law and
regulation, an agency has the discretion to consider time spent in
cleanup as work. Id., slip op. at 18. We also held that, under law and
regulation, cleanup time can constitute compensable work. Accordingly,
we stated that we would no longer adhere to previous Authority decisions
holding that proposals providing for cleanup time are inconsistent with
5 U.S.C. Section 6101. Id., slip op. at 22. In accordance with our
decision in Fort Campbell, we therefore reject the Agency's argument
that Provision 2 in this case is inconsistent with 5 U.S.C. Section
6101.
Moreover, by requiring the Agency to provide employees with time at
the end of the day for personal cleanup and equipment storage, Provision
2 in this case is also substantively similar to Proposal 3 in Fort
Campbell. In like manner, Provision 2 would prevent the Agency from
assigning any other work to employees during the 15 minutes which the
provision requires to be used for personal cleanup at the end of the
day. Accordingly, consistent with the decision in Fort Campbell, we
find that Provision 2 directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute.
Because Provision 2 directly interferes with management's right to
assign work, we turn now to the question of whether the provision is
negotiable as an appropriate arrangement for employees adversely
affected by the exercise of a management right within the meaning of
section 7106(b)(3) of the Statute. In order to determine whether a
proposal or a provision is an arrangement for employees adversely
affected by management's exercise of its rights, we look to "the effects
or foreseeable effects on employees which flow from the exercise of
those rights, and how those effects are adverse." National Association
of Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA 24, 31 (1986) (Kansas Army National Guard).
The Union argues that Provision 2 is intended to lessen the effects
on employees of unclean and potentially unhealthy working conditions.
The employees in this case perform various duties, including hard
physical labor, in a national cemetery. The Union states that the
duties of the employees "bring them in constant contact with dirt,
grime, oil, grease, lawn care chemicals, pesticides, herbicides(.)"
Union's Response at 2. Provision 2, therefore, is intended to
ameliorate the adverse effects on employees of constant contact with
dirty and potentially harmful substances and chemicals.
The Agency does not dispute the Union's assertions but, rather,
characterizes the impact on employees as "minor." Agency's Statement of
Position at 11. According to the Agency, Provision 2 "would make
routine job responsibilities and routine effects of the job an adverse
effect." Id. Based on the record, however, we find that the employees'
work with potentially harmful chemicals is not so minor that it does not
have an "adverse effect" on those employees. See Overseas Education
Association and Department of Defense Dependent Schools, 39 FLRA 153,
159, 168, and 175 (1991). Accordingly, we find that Provision 2 is
intended to be an "arrangement" under section 7106(b)(3) for employees
adversely affected by the exercise of management's right to assign work.
Because we find that Provision 2 constitutes an arrangement, it is
necessary to determine whether it is an "appropriate" arrangement within
the meaning of section 7106(b)(3). An arrangement is appropriate if it
does not excessively interfere with management's rights under section
7106 of the Statute. In order to determine whether the provision
excessively interferes with management's right to assign work, we must
determine whether the negative impact on management's right is
disproportionate to the benefits to employees conferred by the
provision. See Kansas Army National Guard, 21 FLRA at 31-33.
Provision 2 would ameliorate the adverse effects on employees of
constant exposure to unclean and potentially harmful substances by
requiring the Agency to permit employees to quit work in the field 15
minutes early and to use the last 15 minutes of the workday for
equipment storage, personal cleanup, and changes of clothing. The
provision would benefit employees by assisting them in the maintenance
of their personal safety and hygiene.
The provision would prevent the Agency from assigning other work to
employees during the required cleanup period. The Agency argues that
the provision imposes a disproportionate burden on management because
the provision would "negate a minor impact to the employee, that of
washing away the dirt of the job and returning tools and equipment used
on the job, with the excessive impact of not allowing management the
ability to assign other duties." Agency's Statement of Position at 11.
In assessing the impact of Provision 2 on management's right to
assign work, we note that the Agency, at its discretion, currently
provides employees with cleanup time. Agency's Supplemental Statement
of Position at 7. Moreover, we also note the Union's uncontroverted
statement that
(t)he normal practice is that approximately 30 minutes before the
end of the shift, employees begin windup of the jobs. They bring
in their equipment and get ready to go. Consequently, there would
be virtually no interference with agency operations, as what we
are asking happens anyway.
Union's Response at 2.
On balance, we find that Provision 2 does not excessively interfere
with management's right to assign work. In the circumstances of this
case, the benefits to employees' health and safety outweigh the
limitation on management's right to assign work during the period
provided in the provision for cleanup and storage of equipment. In
particular, the fact that the Agency has already established a cleanup
and equipment storage period suggests that the requirement for such a
period under Provision 2 would not significantly affect management's
ability to assign work. See Fort Campbell, slip op. at 25.
Consequently, we find that the burden imposed by the provision on
management's right to assign work is not disproportionate to the benefit
to employees of the required cleanup period. Accordingly, we conclude
that Provision 2 constitutes a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute.
Article 9 -- Overtime
Section 11. Management agrees that the procedure to be followed
in scheduling overtime will be as follows: Overtime will normally
be scheduled in 8 hour blocks. When overtime is to be scheduled
in 8 hour blocks, it will be scheduled on Saturday. If, due to
inclement weather or other reasons, the overtime cannot be
performed on Saturday, it will be scheduled during evenings the
following week.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 4 interferes with its right to
assign work under section 7106(a)(2)(B) of the Statute because it would
prevent the management from determining when work will be performed.
Agency's Statement of Position at 16. Relying on American Federation of
Government Employees, AFL-CIO, Mint Council 157 and Department of the
Treasury, Bureau of the Mint, 19 FLRA 640 (1985), the Agency argues that
Provision 4 is not a negotiable procedure because it prevents management
from determining how much work and how much scheduled overtime is needed
to correspond with the Agency's work requirements. Id. at 18-19.
The Agency also contends that the provision is inconsistent with 5
C.F.R. Section 610.121, a Government-wide regulation. The Agency
asserts that Provision 4 prevents management from fulfilling its
obligation to determine work needs as required by 5 C.F.R. Section
610.121 because management is precluded from making a determination as
to the amount or duration of work. Id. at 19-20.
Finally, the Agency contends that Provision 4 is not an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
The Agency argues that the Union has not shown that the scheduling of
overtime work during the workweek has had an adverse effect on employees
and, therefore, the provision is not an arrangement to alleviate any
adverse effect. Agency's Supplemental Statement of Position at 8-9.
The Agency asserts that, even assuming the provision were found to be an
arrangement, Provision 4 excessively interferes with management's right
to assign work because it restricts the Agency's ability to determine
its work needs, and the interference outweighs the benefit to employees.
Id. at 9, and Agency's Statement of Position at 17-18.
2. Union
The Union contends that the provision constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute, or,
alternatively, a procedure within the meaning of section 7106(b)( 2).
The Union states that "(w)hen the Agency works overtime, it usually does
so to set headstones on graves." Union's Response at 3. The Union
further states that "employees do a great deal of hard, physical labor
for an 8-hour shift." Id. The Union asserts that, because employees'
jobs are physically demanding, the provision is intended to mitigate the
potentially dangerous effect on employees of requiring them to work
beyond their 8-hour shifts during the work week. Id.
The Union argues that Provision 4 does not interfere with the
Agency's right to assign overtime work because the Agency's past
practice has been to schedule overtime in 8-hour blocks on Saturdays.
Therefore, the Union states that the provision is merely an attempt "to
codify the normal practice, and provide some guidelines that will make
such overtime easier on the employees." Id.
The Union also asserts that Provision 4 does not interfere with the
Agency's duty to consider its mission requirements because the provision
does not require that overtime must be on Saturday, but rather, requires
the Agency to attempt "normally" to schedule overtime on Saturdays, and
allows the Agency to schedule such work on other days "because of
inclement weather" . . . or other reasons.'" Union's Appeal at 2-3.
B. Analysis and Conclusions
We conclude that Provision 4 directly interferes with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute.
However, we also conclude that the provision constitutes an appropriate
arrangement under section 7106(b)(3) because it does not excessively
interfere with the Agency's right to assign work under section 7106(a)(
2)(B).
Provision 4 requires the Agency normally to schedule overtime in
8-hour blocks on Saturdays, with alternative scheduling of overtime on
weekday evenings only if Saturdays are not possible due to inclement
weather or other reasons. The effect of the provision, therefore, would
be to limit the circumstances -- the length of the assignment and the
day of the week -- under which the Agency could require overtime work to
be performed.
The right to assign work under section 7106(a)(2)(B) encompasses the
right to determine when work which has been assigned will be performed.
See, for example, Service and Hospital Employees International Union,
Local 150 and Veterans Administration Medical Center, Milwaukee,
Wisconsin, 35 FLRA 521, 524 (1990) (VAMC). Proposals that restrict the
length of an overtime assignment or prescribe the day of the week on
which an overtime assignment will be performed are nonnegotiable. See,
for example, American Federation of Government Employees, AFL-CIO, Local
1931 and Department of the Navy, Naval Weapons Station, Concord,
California, 32 FLRA 1023, 1040-43 (1988) (Naval Weapons Station)
(Provision 13) (provision that prevented management from assigning an
employee overtime in excess of 4 hours per day held to directly
interfere with agency's right to assign work); National Association of
Government Employees, Local R1-109, AFL-CIO and Veterans Administration
Medical Center, Newington, Connecticut, 26 FLRA 532, 534-35 (1987)
(Proposal 4) (proposal that prohibited work assignments to a particular
employee on Sunday mornings held to directly interfere with agency's
right to assign work). Accordingly, because Provision 4 prescribes the
length of an overtime assignment and prescribes the day of the week on
which that overtime assignment will be performed, we find that the
provision directly interferes with management's right, under section
7106(a)(2)(B) of the Statute, to assign work.
Moreover, we reject the Union's contention that the use of the term
"normally" in Provision 4 necessitates the conclusion that the provision
does not directly interfere with management's right to assign work. In
our view, the use of the term "normally," which qualifies the
requirements that the Agency schedule overtime in 8-hour blocks and on
Saturdays, does not diminish the effect of the provision on management's
right to assign work. Rather than preserving management's right to
assign work, the term restricts the exercise of that right by
establishing a criterion limiting the range of alternatives from which
management can choose in making overtime assignments. Thus, the term
"normally" constitutes a substantive limitation on the Agency's right to
assign work because it establishes a substantive standard governing
management's decision to assign work on overtime. See, for example,
American Federation of Government Employees, AFL-CIO, Local 2024 and
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 30 FLRA 650, 653 (1987).
We turn now to the question of whether Provision 4 constitutes an
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute. As noted above, in order to determine whether a proposal
is an arrangement for employees adversely affected by management's
exercise of its rights, we look to "the effects or foreseeable effects
on employees which flow from the exercise of those rights, and how those
effects are adverse." Kansas Army National Guard, 21 FLRA at 31.
The Union asserts that Provision 4 is intended to lessen the effects
on employees, during the regular workweek, of having to perform hard
physical work beyond the normal 8-hour shifts. The Union also states
that "work beyond the 8-hour shift is potentially dangerous to employees
because of exhaustion." Union's Response at 3. Provision 4, therefore,
is intended to ameliorate the adverse effects on employees of more than
8 hours of hard physical work in a regular workday by providing that
overtime will normally be performed in 8-hour blocks on Saturday. We
reject the Agency's contention that there are no adverse effects on
employees flowing from the assignment of overtime. See, for example,
West Point Elementary School Teachers Association, NEA and United States
Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-12
(1990) (West Point Elementary School). Accordingly, we find that
Provision 4 is intended to be an "arrangement" under section 7106(b)(3)
for employees adversely affected by the exercise of management's right
to assign work.
Having found that Provision 4 constitutes an arrangement, it is
necessary to determine whether the arrangement is "appropriate" within
the meaning of section 7106(b)(3). An arrangement is appropriate if it
does not excessively interfere with the exercise of a management right
under section 7106 of the Statute. As noted above, in making this
determination we consider whether the negative impact on management's
right to assign work is disproportionate to the benefits conferred on
employees by the provision. Kansas Army National Guard, 21 FLRA at 33.
Provision 4 would ameliorate the adverse effects on employees of
being required to do more than 8 hours of physical labor by requiring
the Agency "normally" to postpone work which could not be completed
during the regular workday until it could be scheduled in an 8-hour
block on Saturday. We interpret the term "normally" to mean that the
Agency would not be precluded from requiring employees to work overtime
where that would be necessary to complete work by a given deadline or to
complete a particular task. We conclude, therefore, that the effect of
the provision is to require the Agency to delay the completion of
overtime work which does not need to be finished at any particular time
until it can be completed during an 8-hour overtime workday on a
Saturday. Moreover, the provision would not delay the completion of the
overtime work indefinitely if circumstances such as inclement weather
preclude doing the work on Saturday, but would permit the Agency to
schedule the work in addition to the regular workday during the
following week. The issue is whether the benefit to employees of the
delay in overtime work required by the provision outweighs the effect of
that delay on management's ability to schedule and complete work
assignments.
The Union claims that the benefit to employees, given the physical
nature of their jobs, would be to mitigate the potential danger of
exhaustion if overtime assignments are scheduled during the normal
workweek. Union's Response at 3. The Union states that the overtime
work performed by unit employees is usually the setting of headstones
that weigh "a great deal," that it is work that is performed outdoors,
and that because it is performed outdoors, cannot be performed at the
close of the workday during certain periods of the year due to darkness.
Id. The Union also claims that the provision merely expresses the
manner in which the Agency already normally schedules overtime
assignments and that it is not intended to "mandate an inflexible
procedure." Id. According to the Union, "(c)learly, if they do it now,
it cannot be an interference." Id.
The Agency, on the other hand, claims that Provision 4 "removes the
ability of the Agency to determine and meet its needs by scheduling
overtime based on the Agency's assessment of when overtime is
necessary." Agency's Supplemental Statement of Position at 9. The
Agency states that there is "no basis to believe . . . that a shift of 9
hours a day for 5 days is more strenuous than a shift of 8 hours a day
for 5 days with 5 hours on Saturday." Id. The Agency also states that
the provision would put it in the position of "being expected to save up
work so it can be completed in an 8(-)hour block, regardless of the
Agency's needs(.)" Agency's Statement of Position at 17.
In weighing the impact of Provision 4 on management's right to assign
work against the benefits the provision would confer on employees, we
note at the outset the Union's undisputed claim that the provision
reflects existing Agency practice. The Agency offers no evidence that
would support the conclusion that this practice has adversely affected
its ability to complete work assignments as necessary. The Agency has
also offered no evidence that would contradict the Union's description
of normal overtime work as the setting of heavy headstones that is
physically demanding labor. The Agency's arguments consist of a
generalized claim that the provision would affect management's ability
to complete work as needed and an expression of disbelief that a 9-hour
workday is "strenuous."
However, as noted above, by requiring only that overtime work
"normally" be scheduled in 8-hour blocks on Saturday, the provision
affords the Agency flexibility in scheduling overtime that must be
completed by a given time. Moreover, the Agency has not offered any
evidence which is inconsistent with the Union's specific claim that the
overtime work that is usually performed by the employees in this case is
the physically demanding work of setting headstones. Compare
International Association of Fire Fighters, Local F-159 and U.S.
Department of the Navy, Naval Station Treasure Island, San Francisco,
California, 37 FLRA 836, 838 (1990), and Naval Weapons Station, 32 FLRA
at 1037-43, in which the Authority found that the burden on the exercise
of management's right to assign training and ensure that employees are
adequately prepared to meet the work demands of their positions was not
outweighed by the benefit to employees of lessened fatigue.
Accordingly, based upon the foregoing and taking into account the
Union's undisputed contention that the provision reflects the Agency's
existing practice as to the scheduling of overtime, we conclude that the
burden imposed on management's ability to schedule and complete work on
overtime does not outweigh the benefit to employees of that practice in
alleviating the physical demands of the overtime work. Consequently, we
find that Provision 4 does not excessively interfere with management's
right to assign work and conclude that the provision is a negotiable
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute.
Article 9 -- Overtime
Section 12. When 8 hours overtime is scheduled on Saturday, the
starting time will be the same as for the regular work week,
unless a majority of the affected employees agrees to a different
starting time. The will of the majority will be determined by a
vote of the affected employees, with a Union representative
present. There will be no solicitation to get employees to agree
to a different starting time.
A. Positions of the Parties
1. Agency
The Agency argues that Provision 5 interferes with management's right
to assign work under section 7106(a)(2)(B). According to the Agency,
the provision would: (1) prevent the Agency from determining when an
overtime assignment would start; and (2) condition the starting time
for Saturday overtime on employee agreement to that time. Statement of
Position at 20-21.
The Agency also contends that Provision 5 does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute because: (1) the scheduling of overtime does not have an
adverse effect on employees; and (2) the provision excessively
interferes with management's right to assign work because it restricts
the Agency's ability to determine its work needs. Agency's Supplemental
Statement of Position at 8-10.
2. Union
The Union contends that Provision 5 constitutes an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
The Union argues that, because employees have felt that they were being
coerced by requests from their supervisors to begin Saturday shifts
earlier, Provision 5 constitutes a reasonable accommodation which would
alleviate employee concerns regarding coercion. Union's Response at 4.
Citing the Authority's decision in Department of the Air Force, Scott
Air Force Base, Illinois and National Association of Government
Employees, Local R7-23, 33 FLRA 532 (1988) (Scott Air Force Base),
affirmed sub nom. National Association of Government Employees, Local
R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990), the Union asserts that
Provision 5 concerns the starting time of a shift, a matter that is
negotiable at the election of the Agency. Accordingly, the Union
contends that Provision 5 cannot be disapproved by the Agency head
because the Agency elected to negotiate concerning the subject matter of
the provision. Id.
B. Analysis and Conclusions
We conclude that Provision 5 directly interferes with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
Moreover, because we find that the provision excessively interferes with
the Agency's right to assign work under section 7106(a)(2)(B), we
conclude that the provision does not constitute an appropriate
arrangement under section 7106(b)(3) and it is, therefore,
nonnegotiable.
Provision 5 would establish the starting time for an Agency
assignment of overtime and the method for making changes in that
starting time. Specifically, the provision would require the Agency to
begin the 8 hours of overtime work scheduled on Saturday at the same
time as the starting time for the regular workweek unless a majority of
employees to whom overtime has been assigned agree, by vote, to a
different starting time.
The Authority has held that management's right to assign work under
section 7106(a)(2)(B) includes the right to determine when work
assignments will be performed. American Federation of Government
Employees, Local 85 and Veterans Administration Medical Center,
Leavenworth, Kansas, 32 FLRA 210, 216 (1988) (Leavenworth) (proposal
requiring reassigned employees to have the same work schedules as they
had previously found to directly interfere with the agency's right to
assign work). The Authority has also held that an agency's
establishment of the starting and quitting times of a tour of duty
constitutes an exercise of the right to determine when work will be
performed. National Weather Service Employees Organization and U.S.
Department of Commerce, National Oceanic and Atmospheric Administration,
National Weather Service, 37 FLRA 392, 399-400 (1990) (National Weather
Service).
We find that the establishment of starting times for Saturday
overtime work in this case constitutes an exercise of management's right
under section 7106(a)(2)(B) of the Statute to assign work. Because
Provision 5 conditions the starting time of Saturday overtime work on
the decision of the employees assigned to that overtime, we find,
consistent with Leavenworth and National Weather Service, that Provision
5 directly interferes with the Agency's right to assign work under
section 7106(a)(2)(B). See International Organization of Masters, Mates
and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32
FLRA 269, 272-73 (1988) (proposal conditioning the exercise of a
management right on employee agreement held to be nonnegotiable).
We turn now to the question of whether Provision 5 constitutes an
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute. As noted above, in order to determine whether a proposal
is an arrangement for employees adversely affected by management's
exercise of its rights, we look to "the effects or foreseeable effects
on employees which flow from the exercise of those rights, and how those
effects are adverse." Kansas Army National Guard, 21 FLRA at 31.
We find that Provision 5 is intended to be an arrangement to minimize
the adverse effects on employees of irregular scheduling of the overtime
to be performed on Saturdays. The Union states:
(W)hen Saturday work was scheduled, the foremen would approach
individual employees and solicit them to come in earlier (or
later, but normally earlier) than the normal starting time. Some
employees favored this, but many did not and felt coerced into
starting earlier. Consequently, we proposed that if a change in
the starting time is desired, the affected employees would vote,
and the majority would rule.
Union's Response at 4. By providing that the starting time for the
8-hour block of overtime scheduled on Saturday will be the same as the
regular work week unless a majority of employees agree otherwise,
Provision 5 would ameliorate the adverse effects on employees of erratic
starting times and eliminate the pressures put on them by management to
agree to earlier starting times. Id.
Having found that Provision 5 constitutes an arrangement, it is
necessary to determine whether the arrangement is appropriate within the
meaning of section 7106(b)(3). To do so, we consider whether the
negative impact on management's right to assign work is disproportionate
to the benefits conferred by the provision on employees. See Kansas
Army National Guard, 21 FLRA at 33.
Provision 5 restricts management's ability to assign work by
preventing the Agency from establishing when the Saturday overtime
period will start by subjecting that decision to the agreement of
affected employees. In our view, the benefit to employees of control
over the starting time of Saturday overtime work is outweighed by the
negative effect of the provision on management's right to assign work.
The provision would not allow for any circumstances that, in the
judgment of management, might necessitate an earlier or a later starting
time than the regular starting time or that preferred by a majority of
the affected employees. Consequently, we find that the impact on
management's right to assign work is disproportionate to the benefits
that the provision would afford to employees. Accordingly, we find that
Provision 5 excessively interferes with management's right to assign
work and that the provision, therefore, does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. We conclude that Provision 5 is nonnegotiable.
Article 14 -- Sick Leave
Section 1. Employees will accrue sick leave in accordance with
applicable law and regulations. Use of sick leave is subject to
the approval of the appropriate supervisor. Sick leave will be
granted to employees when they are incapacitated for performance
of their duties because of illness, under certain circumstances
involving contagious diseases as set forth in applicable
regulations, or for medical, dental, or optical examination or
treatment when required and requested prior to the beginning of
the absence. (Only the underscored portion of the provision is in
dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Provision 6 interferes with its right under
section 7106(a)(2)(B) of the Statute to assign work. The Agency argues
that the provision requires management to grant sick leave requests
without being able to consider the needs of the Agency. The Agency
states that the granting of sick leave is governed by a Government-wide
regulation. The Agency argues that the provision prevents it from
requiring that sick leave requests be "supported by evidence
administratively acceptable" as required by 5 C.F.R. Section 630.403.
Agency's Statement of Position at 22. The Agency contends that
Provision 6 is not an appropriate arrangement because the Agency's need
to be able freely to assign work outweighs the adverse impact on the
employees of management's exercise of its right to assign work. Id. at
23-24.
2. Union
The Union states that Provision 6 was intended as an appropriate
arrangement to alleviate the "adverse impact (of the) frequent inability
of employees to schedule needed medical, dental or optical appointments
outside of regular work hours." Union's Appeal at 3-4. The Union argues
that Provision 6 does not violate management's right to assign work and
is negotiable because the provision merely reiterates the wording of a
Government-wide regulation. Union's Response at 4.
B. Analysis and Conclusions
We conclude that Provision 6 constitutes an appropriate arrangement
under section 7106(b)(3) of the Statute and, therefore, that it is
negotiable.
Provision 6 concerns certain conditions under which the Agency will
grant sick leave to employees. The provision requires the Agency to
grant sick leave: (1) when employees are unable to perform their duties
because of sickness; (2) under certain circumstances involving
contagious diseases, as provided for under applicable regulations; and
(3) when medical, dental, or optical examination or treatment is
required and a request for sick leave is made before the start of the
absence.
Under law, 5 U.S.C. Section 6307, and regulation, 5 C.F.R. Sections
630.401-630.407, an agency shall, upon request, grant sick leave to an
employee when the employee: (1) receives medical, dental or optical
examination or treatment; (2) is incapacitated for duty because of
sickness, injury or pregnancy and confinement; (3) is required to give
care and attendance to an immediate family member afflicted with a
contagious disease; or (4) has been exposed to a contagious disease. 5
C.F.R. Section 630.401. The regulations provide that an agency may
require a written request for such leave. 5 C.F.R. Section 630.402.
The request must be supported by administratively acceptable evidence.
An employee's statement or certification that one of the bases exists
upon which such leave is to be granted is administratively acceptable
evidence for absences of any duration. However, an agency may require a
medical certificate or other evidence for absences of more than 3 days
or where such leave abuse is suspected. 5 C.F.R. Section 630.403;
Federal Personnel Manual (FPM) Supplement 990-2, Subchapter S4-2.b. See
National Federation of Federal Employees, Local 1380 and U.S.
Department of the Navy, Naval Coastal Systems Center, Panama City,
Florida, 36 FLRA 725, 737-41 (1990).
The wording of Provision 6 is substantively similar to the language
contained in 5 C.F.R. Sections 630.401-630.402. Provision 6 neither
requires that leave shall be granted on any basis other than those
provided in the regulations nor precludes the Agency from granting sick
leave to employees under circumstances which the regulations would
permit sick leave to be granted. Provision 6, for example, would not
prevent the Agency from granting sick leave to employees incapacitated
for duty because of pregnancy. We find, therefore, that Provision 6 is
not inconsistent with applicable law and regulations.
We also reject the Agency's contentions that Provision 6 is
inconsistent with 5 C.F.R. Section 630.403. That section, as noted
above, concerns the circumstances under which an agency may require an
employee to support a claim that he or she is sick. Provision 6
concerns only the circumstances under which the Agency will grant sick
leave. The provision does not preclude the Agency from requiring
employees to provide documentation to support their claims that sick
leave must be granted under the provision.
As to the Agency's claim that the provision directly interferes with
management's right to assign work, we note that the decision to grant
leave to employees is an exercise of an agency's right to assign work
under section 7106(a)(2)(B) of the Statute. Consequently, proposals
having the effect of requiring an agency to grant leave, without regard
for the agency's need for the employee's services during the period
covered by the request, directly interfere with an agency's right to
assign work. See, for example, National Federation of Federal Employees
and Department of the Interior, Bureau of Land Management, 29 FLRA 1491,
1516 (1987), enforced in relevant part sub nom. Department of the
Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir.
1989); and 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, 583-84 (1984).
Consistent with the foregoing discussion, Provision 6 would require
the Agency to exercise its rights under section 7106(a)(2)(B) to grant
sick leave consistent with applicable Government-wide regulations. By
placing limitations on the Agency's decision as to whether to grant
leave to employees, even limitations contained in Government-wide
regulations, Provision 6 directly interferes with the Agency's right to
assign work under section 7106(a)(2)(B). See American Federation of
Government Employees, Local 2761 and Department of the Army, Army
Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006,
1010-11 (1988).
We turn next to the question of whether a provision requiring
management to exercise its rights under section 7106(a) of the Statute
in accordance with applicable Government-wide regulations may be
negotiable as an appropriate arrangement under section 7106(b)(3) of the
Statute. In American Federation of Government Employees, Department of
Education Council of AFGE Locals and U.S. Department of Education,
Washington, D.C., 38 FLRA 1068, 1076-77 (1990), decision on
reconsideration, 39 FLRA No. 107 (1991), slip op. at 4-5 (Department of
Education), we held that the management rights enumerated in section
7106(a)(2) of the Statute are exercised subject to subsection (b),
including the appropriate arrangements provision of section 7106(b)(3).
Thus, we may conclude that proposals requiring management to exercise
its rights under section 7106(a)(2) in accordance with Government-wide
regulations are negotiable as appropriate arrangements under section
7106(b)(3) of the Statute even if Government-wide regulations do not
constitute "applicable law" within the meaning of section 7106(a)(2) of
the Statute. See Department of Education, 38 FLRA at 1077-78; 39 FLRA
No. 107, slip op. at 5-6. Because we find, for the reasons set forth
below, that the requirement of Provision 6 that management grant sick
leave requests consistent with applicable Government-wide regulations
constitutes an appropriate arrangement within the meaning of section
7106(b)(3), we conclude that Provision 6 is negotiable notwithstanding
the decision in Internal Revenue Service.
Based on the record in this case, we find that Provision 6 is
intended to be an arrangement for employees who are adversely affected
by management's decisions as to the assignment of work. According to
the Union, the provision alleviates the conflict between work
requirements and medical needs by establishing the conditions under
which employees will be released from work to attend to those needs.
We also find that the provision is an "appropriate" arrangement
because it does not excessively interfere with management's right to
assign work under section 7106(a)(2)(B). The Union claims that
Provision 6, setting forth the circumstances in which the Agency will
grant sick leave, benefits employees by limiting the effect on employees
of "the frequent inability of employees to schedule needed medical,
dental or optical appointments outside () regular work hours." Union's
Response at 4; Petition for Review at 3-4. The Agency asserts that the
Union's claimed benefit is "minor when balanced with the need of the
Agency to assign employees." Agency's Statement of Position at 23. The
Agency, however, does not provide any evidence as to how the provision
would burden the exercise of its right to assign work.
Provision 6 establishes substantive criteria governing management's
decision to grant leave to employees for reasons of illness or medical
treatment. Because the provision does not preclude management from
requiring documentation, however, the provision would not require
management to grant leave for any unsubstantiated reason. The provision
also requires employees to notify management prior to medical
appointments. Accordingly, the provision preserves management's ability
to refuse to grant leave where the request for leave is without
justification and affords management sufficient notice to make
appropriate adjustments in the scheduling of work. On the other hand,
the provision allows employees to attend to their legitimate medical
needs. In our view, the effect of Provision 6 on management's right to
assign work under section 7106(a)(2)(B) is not disproportionate to the
benefit afforded employees by the provision. Consequently, we conclude
that Provision 6 does not excessively interfere with management's right
to assign work. Accordingly, we find that Provision 6 constitutes an
appropriate arrangement under section 7106(b)(3) and that it is,
therefore, negotiable.
Article 26 -- General Provisions
Section 3. Employees(') skills will be utilized to the maximum
extent possible within their job classification. To the extent
possible, work will be distributed equitably among personnel within job
classifications.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 8 interferes with management's
right under section 7106(a)(2)(B) of the Statute to assign work because
the provision "takes away management's right to make considerations of
an employee's relative qualifications and abilities to do particular
assignments." The Agency relies on National Treasury Employees Union and
Internal Revenue Service, Dallas District, 13 FLRA 48 (1983) (IRS,
Dallas). Agency Statement of Position at 26-27. The Agency contends
further that the provision is not an appropriate arrangement because the
restraint on management's right to assign work is disproportionate to
the alleged necessity for preventing possible future inequities in
assignments. Id. at 27-28.
2. Union
The Union states that Provision 8 was "intended to have employees
work essentially within the bounds of their classifications, utilizing
the skills for that classification." Union's Appeal at 4. The Union
argues that the provision does not preclude management from assigning
duties or from changing or adding duties. The Union also argues that
the provision does not interfere with management's right to assign work
because it requires equitable distribution of work only among qualified
employees within the job classifications that management has already
determined will perform certain tasks.
The Union states that the provision was intended as an appropriate
arrangement to mitigate the adverse impact that may flow from "a
disproportionate assignment of duties to similarly situated employees in
the same job classification." Id. The Union claims that the provision
would have the effect of preventing the Agency from exercising its right
to assign work in a manner that would favor certain employees or act as
a disproportionate burden on other employees who are less favored by
management. Id. at 4-5.
The Union argues that Provision 8 is distinguishable from the
proposal in IRS, Dallas because the proposal in that case required
equitable distribution of work without regard to employees'
qualifications. Union's Response at 5.
B. Analysis and Conclusions
We find that Provision 8 is negotiable as an appropriate arrangement
under section 7106(b)(3) because it does not excessively interfere with
management's right to assign work under section 7106(a)(2)(B).
Provision 8 requires that management will: (1) use employees' skills
to the maximum extent possible within the employees' job
classifications; and (2) to the extent possible, distribute work
equitably among employees within job classifications. The provision
would restrict management's ability to make work assignments that would
not use employees' skills to the maximum extent possible or would not,
to the extent possible, result in an equitable distribution of work.
The effect of the provision, therefore, is to establish substantive
criteria governing the exercise of management's right to assign work.
Proposals that establish general criteria restricting the range of
management action pursuant to a right under section 7106 of the Statute
constitute a substantive limitation on the exercise of that right.
Proposals establishing substantive criteria governing the exercise of a
management right directly interfere with that right and are
nonnegotiable. See West Point Elementary School, 34 FLRA at 1010
(1990). Because Provision 8 would impose substantive restrictions on
management's discretion to make work assignments that could function to
disproportionately advantage or disadvantage certain employees, we find
that the provision directly interferes with management's right to assign
work under section 7106(a)(2)(B) of the Statute. See Naval Weapons
Station, 32 FLRA at 1050-53; American Federation of Government
Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air
Station, Oceana, Virginia, 30 FLRA 1105, 1111-14 (1988) (Naval Air
Station, Oceana).
In reaching this conclusion, we recognize that terms such as
"equitable" or "equitably" have been found to have varying substantive
effects. Compare National Association of Government Employees, Local
R1-144, Federal Union of Scientists and Engineers and U.S. Department of
the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38
FLRA 456, 465-66 (1991) (proposal providing for performance standards to
be "fair and equitable" held to be a nonnegotiable criterion governing
the content of a performance standard) with National Treasury Employees
Union, Chapter 22 and Department of the Treasury, Internal Revenue
Service, 29 FLRA 348, 357-58 (1987) (Internal Revenue Service) (two
proposals providing that the work of detailed employees, if distributed
to other employees, would be distributed to those other employees in a
fair and equitable manner held to be a negotiable procedure under
section 7106(b)(2)). Because we conclude that terms such as "equitable"
and "equitably," when used in proposals that govern the exercise of a
management right, constitute substantive restrictions on the exercise of
that right, we will no longer follow cases such as Internal Revenue
Service to the extent that those cases hold that the use of the terms
"equitable" or "equitably" do not constitute a substantive limitation.
As demonstrated below, our holding does not mean that proposals using
those terms are necessarily nonnegotiable.
We turn to consideration of the Union's contention that Provision 8
constitutes an appropriate arrangement under section 7106(b)(3) of the
Statute. We note at the outset that similar proposals previously have
been held by the Authority not to constitute arrangements for employees
adversely affected by the exercise of a management right because the
assignment of work was not considered to have an adverse affect on
employees. See Naval Air Station, Oceana, 30 FLRA at 1113-14; American
Federation of Government Employees, AFL-CIO, Local 1625 and U. S. Navy
Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach,
Virginia, 28 FLRA 1134, 1137-38 (1987) (proposals held not to be
arrangements because work assignments did not adversely affect employees
within the meaning of section 7106(b)(3)). That approach has since been
rejected by the Authority following consideration of the court's
decision in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960
(D.C. Cir. 1989). See West Point Elementary School, 34 FLRA at 1011-12.
Consequently, we will consider, based on the record, whether the
requirements of Provision 8 -- that work be assigned to employees so as
to use their skills to the maximum extent possible and that, to the
extent possible, work be distributed equitably -- constitute an
arrangement for employees adversely affected by the exercise of a
management right.
The Union states that Provision 8 is designed to address the "adverse
impact" on employees of "a disproportionate assignment of duties to
similarly situated employees in the same job classification as opposed
to other employees in the same job classification." Union's Petition for
Review at 4. The Union explains the effect of the provision as follows:
This avoids loading up similar duties on a particular employee or
employees for non-mission related reasons, or for arbitrary,
capricious or non-merit personal reasons. The advantage to the
employee is to avoid being singled out to perform a
disproportionate amount of work for improper reasons.
Id. at 4-5. The Union concludes that the provision would "mitigate" the
"potential abuse of the right of assignment" because it would preclude
the use of work assignments "as harassment of an unfavorite subordinate
or reward of a favorite." Union's Response at 5.
The Agency claims that Provision 8 is not based on an "allegation
that the employees are presently negatively affected by the distribution
of work" and concludes that the provision is "a preventive measure of
inappropriate Agency action in distribution of work." Agency's Statement
of Position at 28. The Agency also contends that the "negative impact
on the Agency's right to assign work is disproportionate to the spurious
additional benefit which the provision would afford employees." Id. The
Agency concludes, therefore, that the provision excessively interferes
with management's right to assign work.
Contrary to the Agency, we find that the fact that the provision is
intended to prevent an adverse impact on employees that could
potentially result from an assignment of work, rather than to remedy an
adverse effect that has been caused by a work assignment, is not
dispositive. In National Federation of Federal Employees, Local 2096
and U.S. Department of the Navy, Naval Facilities Engineering Command,
Western Division, 36 FLRA 834, 837-41 (1990) (Naval Facilities
Engineering Command), we rejected the view that proposals that were
intended to eliminate "the possibility of an adverse effect" did not
constitute arrangements for adversely affected employees within the
meaning of section 7106(b)(3) of the Statute. Naval Facilities
Engineering Command, 36 FLRA at 838, quoting Naval Air Station, Oceana,
30 FLRA at 1126-27 (emphasis in original). We stated that there is "no
statutory basis for the . . . conclusion . . . that a provision which
seeks to eliminate possible adverse effects is not appropriate for
consideration as an appropriate arrangement." Naval Facilities
Engineering Command, 36 FLRA at 840. We concluded that "we will base
determinations as to the negotiability of all proposed arrangements,
including arrangements which seek to ameliorate the adverse effects of
the exercise of a management right by inhibiting the exercise of that
right, on evaluation of the facts and circumstances in each case." Id.
at 840-41.
Based on the wording and the Union's explanation of Provision 8, we
find that the provision is an arrangement within the meaning of section
7106(b)(3) of the Statute. The provision is intended to limit the
adverse effects of management's right to assign work. The provision
would benefit employees by ensuring that they are not unfairly deprived
of the opportunity to develop their job skills to the maximum extent
possible as a result of the assignment of a disproportionate amount of
work. We conclude, therefore, that the provision benefits employees by
affording them protection against the underutilization of their skills
as a result of an inequitable distribution of work and, consequently,
that the provision constitutes an arrangement for employees adversely
affected by the exercise of a management right.
We also find that Provision 8 is an appropriate arrangement within
the meaning of section 7106(b)(3) because it does not excessively
interfere with management's right to assign work. In our opinion, the
Agency's interest in being able to assign work in a manner that would
either improperly favor or disproportionately burden its employees is
negligible. The burden on management of providing for the equitable
distribution of work and for the utilization of employee skills to the
maximum extent possible under Provision 8 is virtually nonexistent. We
find that the burden of the provision on management is outweighed by the
benefit afforded employees under the provision not only of freedom from
disproportionate work assignments, but also of freedom from the adverse
effects of the underutilization of their skills. We conclude,
therefore, that the provision does not excessively interfere with
management's right to assign work under section 7106(b)(3) of the
Statute.
In reaching this conclusion, we note that the provision does not
require that all employees within a job classification receive "equal"
work assignments. That is, as we interpret the effect of the provision,
it would not require that all employees have the same amount of a
particular type of work or that they all have work assignments that are
of the same level of difficulty. In other words, we do not find that
the provision removes discretion from management as to differences
between employees with respect to experience with or expertise in a
particular type of work. We conclude, rather, that the provision is
designed to ensure, to the extent possible, overall equity in the
distribution of work and, to the maximum extent possible, that employees
have an opportunity to develop their skills in all of the work performed
within their job classifications.
In conclusion, we find that Provision 8 is consistent with applicable
Government-wide regulations. We also find that although Provision 8
directly interferes with management's right to assign work, the
provision does not excessively interfere with that right and thus it
constitutes an appropriate arrangement under section 7106(b)(3) of the
Statute. Consequently, we conclude that Provision 8 is negotiable.
Article 29 -- Payroll Deduction of Union Dues
Section 8. An employee may revoke his/her allotment, after the
allotment has been in effect for a period of one year, by
submitting a written request to the Chief, Fiscal Service. An
employee revocation will take effect the pay period following the
next annual revocation date, which will be March 1 of each year.
(Only the underscored portion of the provision is in dispute.)
A. Positions of the Parties
1. Agency
The Agency contends that Provision 9 is contrary to section 7115(a)
of the Statute. The Agency argues that the provision is to the same
effect as Provision 1 in Naval Weapons Station, 32 FLRA 1023.
Specifically, the Agency claims that the provision is nonnegotiable
because it could preclude an employee from revoking a dues authorization
for a period of almost 2 years, a result that is inconsistent with the
Statute. Agency's Statement of Position at 28-30.
2. Union
The Union agrees that Provision 9 could in certain circumstances
preclude an employee from revoking a dues authorization for a period of
about 2 years. The Union argues, however, that "this is a rare
occurrence, and does not, to us(,) violate the (S)tatute. The (S)
tatute . . . does not . . . place a one-year cap on the deduction. With
all due respect, the Authority is simply wrong in (Naval Weapons
Station) in holding otherwise." Union's Response at 5-6.
B. Analysis and Conclusions
We conclude that Provision 9 is nonnegotiable because it is
inconsistent with section 7115(a) of the Statute.
Under section 7115(a) of the Statute, an authorization for dues
withholding "may not be revoked for a period of 1 year." The Authority
has held that that language "must be interpreted to mean that authorized
dues allotments may be revoked only at intervals of 1 year." U.S. Army,
U.S. Army Materiel Development and Readiness Command, Warren, Michigan,
7 FLRA 194, 199 (1981) (footnote omitted). Section 7115(a) means that,
while an employee cannot revoke an authorization for dues allotment for
a period of 1 year, neither shall the employee be precluded from
revoking the authorization for a period or periods greater than 1 year.
Naval Weapons Station, 32 FLRA at 1029. Therefore, negotiated
agreements that allow such a result are inconsistent with section
7115(a) of the Statute. Id.
Provision 9 provides that an employee may revoke his or her dues
allotment, after the allotment has been in effect for 1 year, by
submitting a written request. The request will take effect on the pay
period following the next March 1 that occurs after the request is made.
Under Provision 9, employees would be precluded from revoking dues
authorizations, in almost all cases, for a period in excess of 1 year.
We reaffirm the principle that parties may define the yearly
intervals required by section 7115(a) through negotiations as long as
those intervals are consistent with section 7115(a). See American
Federation of Government Employees, AFL-CIO, Department of Education
Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1082
(1990) (Proposal 1, which based the effective date of the revocation of
dues deduction on the anniversary of the date when the deduction began,
was found to be negotiable). However, because the disputed portion of
Provision 9 could preclude an employee from revoking his or her dues
authorization for periods greater than 1 year it is inconsistent with
section 7115(a) of the Statute and is nonnegotiable.
The Agency must rescind its disapproval of Provisions 1, 2, 4, 6 and
8. /4/ The petition for review as to Provisions 5 and 9 is dismissed.
(1) During the pendency of this case the Veterans Administration was
reestablished as the Department of Veterans Affairs.
(2) The Agency withdrew its disapproval of 3 provisions which
concerned: (1) notice of overtime scheduling; (2) use of accrued
annual leave; and (3) providing for inside work for employees during
extreme cold weather conditions. The issues as to those 3 provisions,
therefore, have been rendered moot. Additionally, the Union withdrew
its appeal as to Provisions 3 and 7. Accordingly, those provisions will
not be considered in this decision.
(3) For the reasons stated in his concurring opinion in Fort
Campbell, Member Armendariz would find Provision 2 to be negotiable
insofar as the Agency has discretion under law and regulation to
compensate employees for time spent in personal cleanup during regular
tours of duty and to the extent that the Agency exercises that
discretion in a manner that is consistent with applicable law and
regulation.
(4) In finding these provisions to be negotiable, we make no judgment
as to their merits.
40 FLRA 652
40 FLRA NO. 59
General Services Administration and International Brotherhood of
Electrical Workers, Local 26, Case No. 3-CA-10114 (Decided May 3, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
PROVIDE INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees.
Case No. 3-CA-10114
GENERAL SERVICES ADMINISTRATION
(Respondent)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 26, AFL-CIO
(Charging Party)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Charging
Party (the Union) with the names and home addresses of bargaining unit
employees represented by the Union. For the reasons stated below, we
find that the Respondent committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of employees
employed by the Respondent. By letter dated October 3, 1990, the Union
requested the Respondent to furnish it with the names and home addresses
of all the bargaining unit employees employed by the Respondent. By
letter dated November 9, 1990, and continuing to date, the Respondent
has refused to provide the Union with the requested information.
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available within the
meaning of section 7114(b)(4) of the Statute, and do not constitute
guidance, advice, counsel or training provided to management officials
or supervisors relating to collective bargaining.
The General Counsel argues that the Authority's decision on remand in
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788 (1986) (Farmers Home), which was reaffirmed by the Authority in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990), is dispositive of the issue in the case. In Farmers
Home, the Authority concluded that section 7114(b)(4) of the Statute
entitled the exclusive representative to the names and home addresses of
bargaining unit employees. The General Counsel contends that the
Respondent's admitted failure to furnish the employees' names and home
addresses constitutes a clear violation of section 7116(a)(1), (5), and
(8) of the Statute.
The Union asserts that "having the names and home addresses of
employees is the best way to ensure efficient communication for
representation, bargaining and for organizing purposes." Union Brief.
The Union argues that inasmuch as it is required to represent all unit
members, "regardless of their membership status," the requested
information is necessary and should be supplied by the Respondent. Id.
Accordingly, the Union requests that the Authority find that the
Respondent committed the alleged unfair labor practice.
The Respondent did not file a brief in this matter. However, in its
November 9, 1990, letter denying the Union's request for the names and
home addresses of unit employees, the Respondent noted that "the issue
of whether home addresses of employees may be released to an exclusive
representative has not been conclusively determined by the Federal
courts." Stipulation, Joint Exhibit 4. Accordingly, the Respondent
proposed to defer action on the Union's request "until the final legal
determination on (the name and home address) issue is made." Id.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. Further, it is evident from the
parties' stipulation that the other requirements of section
7114(b)(4)(A), (B), and (C) have been met in this case.
Accordingly, consistent with the parties' stipulation and based on
the Authority's decision in Portsmouth Naval Shipyard, we find that the
Respondent was required to furnish the Union with the names and home
addresses of employees in the bargaining unit represented by the Union.
Its refusal to do so violated section 7116(a)(1), (5), and (8) of the
Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the General Services Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International
Brotherhood of Electrical Workers, Local 26, AFL-CIO, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) 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) Furnish the International Brotherhood of Electrical Workers,
Local 26, AFL-CIO, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the International Brotherhood of Electrical Workers,
Local 26, AFL-CIO 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 Administrator and shall be
posted in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. 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, 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.
(*) On April 17, 1991, the Authority issued an order directing the
Union to show that its brief of April 5, 1991, has been served on the
other parties, and stating that failure to so demonstrate may result in
the Authority's not considering the brief. The Union has shown that it
served that brief and we have considered it in this case. The Union
also filed an additional brief, dated May 1, 1991, which we have not
considered. See 5 C.F.R. Section 2429.26.
WE WILL NOT refuse to furnish, upon request of the International
Brotherhood of Electrical Workers, Local 26, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the International Brotherhood of Electrical Workers,
Local 26, AFL-CIO, the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 644
40 FLRA NO. 58
Dept. of Health and Human Services, Social Security Administration,
Region VI, Dallas, Texas and AFGE, Local 1336 (Carnes, Arbitrator), Case
No. 0-AR-2066 (Decided May 3, 1991)
7122(a)
ARBITRATION EXCEPTION
PERFORMANCE RATING
ESSENCE FROM AGREEMENT
EXCEED AUTHORITY
BASED ON A NONFACT
CONTRARY TO LAW
5 U.S.C. 4302(b)
The Arbitrator found that a grievance alleging that an employee had
been rated improperly was arbitrable, but that the Agency did not
improperly appraise the performance of the grievant. Accordingly, he
denied the grievance. The Authority rejected the exceptions that the
award did not draw its essence from the agreement, that the award was
based on a nonfact, and that the Arbitrator exceeded his authority.
With respect to the exception that the award was contrary to 5 U.S.C.
4302(b), the Authority concluded that the Union failed to provide any
information to substantiate its allegation. In the Authority's view,
the Union was only disagreeing with the Arbitrator's conclusion that the
grievant was rated properly under the performance standards established
for her position.
Case No. 0-AR-2066
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION, REGION VI, DALLAS, TEXAS
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Charles N. Carnes filed by the Union pursuant to 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 on behalf of the grievant, alleging that
she had been rated improperly. The Arbitrator found that the grievance
was arbitrable and ruled that the Agency did not improperly appraise the
performance of the grievant. The Arbitrator denied the grievance.
For the reasons stated below, we deny the Union's exceptions.
The grievant is a GS-12 Social Insurance Specialist Program Analyst.
The Union filed a grievance concerning the grievant's annual performance
rating for the period from October 1, 1988, through September 30, 1989.
The Union asserted that the grievant was improperly rated with respect
to Generic Job Tasks (GJTs) 3, 61, and 68 because the grievant had
"filed a grievance against her previous appraisal and had filed several
EEO and unfair labor practice charges during the appraisal year." Award
at 2. The grievant requested that GJT's 3 and 61 be raised to
"Excellent" and GJT 68 be raised to "Outstanding."
Before the Arbitrator, the Agency asserted that the grievance was not
arbitrable because the grievant had filed various EEO and unfair labor
practice charges based on bias and discrimination and had, thereby,
elected to litigate those issues in an alternate forum and was precluded
from raising them under the parties' negotiated grievance procedure.
The Arbitrator rejected the Agency's argument and determined that the
grievance "is arbitrable because it involves an independent and
substantial question about the propriety of (g) rievant's final annual
appraisal, a matter which none of the other and earlier charges could
have considered or disposed of." Id. at 3. No exceptions were filed to
this finding.
The Arbitrator stated that the substantive issue before him was
whether the Agency "improperly appraise(d) the performance of the (g)
rievant (with) respect to GJT's 3, 61 and 68 for the appraisal period of
October 1, 1988 to September 30, 1990? If so, what is the proper
remedy?" Id. at 2. /*/ The Arbitrator noted that there was no question
that "if any personal animosity or bias of the rater (the grievant's
supervisor) or the reviewer (the second-line supervisor) played a part
in (g)rievant's 1989 appraisal the basis for some sort of remedy would
have been made out." Id. at 3.
The Arbitrator found that the evidence did not establish that the
grievant's appraisals were conducted improperly or that the grievant was
improperly rated.
The Arbitrator found that the incident on which the Union based the
grievant's claim of "personal animosity on the part of her (s)
upervisor/rater is ancient history." Id. In this regard, the Arbitrator
found no independent evidence to support the grievant's claim that the
supervisor held a grudge against the grievant for the grievant's role in
the supervisor's transfer to another office in 1977. The Arbitrator
found that although the supervisor "was the (g)rievant's rater in the
flawed 1988 appraisal, he was (in) no way connected with the activities
of the previous (s)upervisor whose bad conduct was the causative factor
in the improper appraisal for that year." Id. The Arbitrator also found
no indication in the record that the reviewer had any animus against the
grievant.
The Arbitrator further found no indication of bias or animus on the
part of the grievant's supervisors by virtue of: (1) the grievant's
"isolation" from her fellow employees; (2) the supervisor's approval of
a training assignment requested by the grievant; and (3) the
supervisor's failure to respond to the grievant's "blizzard of memos."
Id. at 4. The Arbitrator concluded that, based on all the evidence
presented, "it has not been demonstrated that the judgments and
evaluations . . . made by (the) (g)rievant's (s)upervisor/rater and her
reviewer in respect to the three critical GJT's in issue were improperly
arrived at or that they were without some justification or rational
basis." Id. at 5.
Finally, the Arbitrator rejected the Union's claim that the
grievant's periodic performance reviews were improperly conducted
because they did not contain a numerical rating on the employee's status
on any GJT. The Arbitrator determined that nothing in the parties'
agreement "requires . . . a provisional or illustrative numerical rating
for any GJT at a review . . . ." Id. at 6. The Arbitrator found that
the parties' agreement only requires a summary of the employee's
"progress in comparison to the performance expectations, any problems
encountered or anticipated, any corrective actions taken or planned and
any changes in the performance expectations(.)" Id. The Arbitrator
concluded that this does not require "an explicit prognostication that a
rating may be lowered at the end of the rating year." Id.
Accordingly, the Arbitrator denied the grievance.
A. Union
The Union contends that the Arbitrator's award does not draw its
essence from the parties' agreement and is contrary to law, rule, and
regulation. The Union argues that the Arbitrator's finding that the
parties' agreement does not provide for a numerical rating for any GJT
at a review is "contrary to the requirements of the law and its
attendant regulations and the contract between the agency and the
union." Exceptions at 3. In this regard, the Union argues that the
Arbitrator's position "denies substantive rights to employees to know
how they will be rated during the appraisal year in accordance with 5
U.S.C. (Section) 4302(b)(3)." Id. The Union states that section 4302(
b)(3) provides for "evaluating each employee during the appraisal
period" on the "standards by which their performance is to be appraised
before being evaluated and to be evaluated under those elements and
standards." Id. at 2 (emphasis supplied by Union).
The Union contends that the Arbitrator exceeded his authority because
he improperly stated the issue before him. The Union argues that the
Arbitrator lacked the jurisdiction to decide the appraisal rating
between the period of October 1, 1989, through September 30, 1990,
because this rating period was not submitted by the Agency or the Union
for resolution. The Union argues that the only issue before the
Arbitrator was the appraisal rating period of October 1, 1988, through
September 30, 1989. Therefore, the Union asserts that the Arbitrator's
award is deficient.
The Union also argues that the Arbitrator misstated the fact that the
rating supervisor of the October 1, 1987, through September 30, 1988,
appraisal of the grievant was not the same individual who rated the
grievant for the October 1, 1988, through September 30, 1989, appraisal
year. The Union argues that this fact establishes that the conduct
complained of is identical in both grievances which concerned the
lowering of the grievant's 1988 rating from one year to the next year
after the successful appeal of the 1988 rating. Therefore, the Union
contends that the essential fact underlying the award is erroneous.
The Union contends that the Arbitrator's conclusions that the
grievant was "in total control of a hostile work environment" is
"unsupported by the facts in this case." Id. at 6. The Union argues
that if the Arbitrator recognized the fact that the grievant was not in
control of her work environment, "he could have reached a different
conclusion based on the record as a whole." Id.
B. Agency
The Agency asserts that the Arbitrator correctly found that there is
nothing in the parties' agreement which requires a numerical rating for
any GJT at a progress review. The Agency states that the grievant was
provided progress reviews in March, April, and August of 1989. It
contends that these progress reviews were not in violation of the
parties' agreement, law, rule, or regulation.
The Agency argues that the Arbitrator did not exceed his authority by
deciding an issue not before him. The Agency maintains that the
Arbitrator made "obvious typographical errors in his decision when he
referred to the appraisal rating period as being from October 1, 1988 to
September 30, 1990." Opposition at 4. The Agency notes that the
Arbitrator made reference to the appropriate appraisal period in the
body of the decision.
The Agency contends that the Arbitrator did not misstate a fact. The
Agency states that although "the grievant's rater for both the (fiscal
1988) and (fiscal 1989) appraisal periods (was the same person) he did
not become the grievant's supervisor until late in August 1988." Id. at
5 (emphasis in original). The Agency notes that this supervisor
supervised her only for "approximately 35 days in (fiscal year) . . .
1988." Id. In this regard, the Agency notes that "(t)he supervisor
referenced in the arbitration (award) for (fiscal 1988) was (a different
person)." Id.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute. The Union has not established that the
award is contrary to any law, rule, or regulation, or that the award is
deficient on other grounds similar to those applied by Federal courts in
private sector labor relations cases.
A. Arbitrator's Award Draws Its Essence From the Agreement
The Union argues that the award fails to draw its essence from the
parties' collective bargaining agreement. In order to demonstrate that
an award fails to draw its essence from the agreement, the Union 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 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. See U.S.
Department of the Treasury, U.S. Customs Service, New York, New York and
National Treasury Employees Union, 39 FLRA 278, 284 (1991).
The Union has not demonstrated that the Arbitrator's award is
deficient under any of these tests. The Arbitrator's award was based on
his interpretation of the agreement as applied to the circumstances in
this case. We have no basis on which to conclude that the Arbitrator's
interpretation of the agreement is implausible, irrational, or
unconnected to the wording of the agreement. As such, the Union has not
demonstrated that the award fails to draw its essence from the
agreement.
B. The Union Fails to Establish That the Arbitrator Exceeded His
Authority
An arbitrator exceeds his or her authority when the arbitrator
resolves an issue not submitted, or awards relief to persons who are not
encompassed within the grievance. See American Federation of Government
Employees, Local 3258 and U.S. Department of Housing and Urban
Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).
The issue before the Arbitrator was whether the Agency improperly
appraised the grievant for the 1989 appraisal period. The Arbitrator,
in stating the issue before him, inadvertently used the wrong date. We
find that this error is not prejudicial to the parties in this case.
The background information in the Arbitrator's decision establishes that
the issue before the Arbitrator was the propriety of the 1989
performance appraisal. The Arbitrator properly addressed that issue and
there is no basis for finding that the Arbitrator exceeded his authority
by rendering an award which went beyond the scope of the matter
submitted to arbitration.
C. The Arbitrator's Award Was Not Based on a Nonfact
We construe the Union's argument that the Arbitrator based his
decision on an essential fact that was erroneous as an argument that he
based his decision on a nonfact. We will find an arbitration award
deficient on the ground that it is based on a nonfact when it is
demonstrated that the central fact underlying the award is clearly
erroneous, but for which a different result would have been reached.
See, for example, U.S. Department of the Army, Headquarters XVIII
Airborne Corps, Fort Bragg, North Carolina and American Federation of
Government Employees, Local 1770, 36 FLRA 86 (1990) (Headquarters XVIII
Airborne Corps).
The Union has not shown that the Arbitrator misstated a fact by
finding that "the (s)upervisor (who) was the (g)rievant's rater in the
flawed 1988 appraisal . . . was (in) no way connected with the
activities of the previous (s)upervisor whose bad conduct was the
causative factor in the improper appraisal for that year." Award at 3.
Moreover, even if the Union had established that this finding of fact by
the Arbitrator was in error, the Union has not demonstrated that this
finding was the central fact underlying the award such that the
Arbitrator would have reached a different result. See Headquarters
XVIII Airborne Corps, 36 FLRA at 90 (union failed to establish that the
matter asserted to be clearly erroneous was a central fact underlying
the award).
Further, the Union's assertion that the Arbitrator would have reached
a different result if he had based his conclusion on the record as a
whole constitutes nothing more than disagreement with the Arbitrator's
findings of fact and provides no basis for finding the award deficient.
See American Federation of Government Employees, Local 3529 and U.S.
Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1115
(1990) (disagreement with arbitrator's factual findings provides no
basis for finding award deficient). In this regard, we note the
Arbitrator's finding that "all the other evidence presented . . . has
not demonstrated that . . . the three critical GJT's in issue were
improperly arrived at or that they were without some justification or
rational basis." Award at 5.
D. The Union Fails to Establish That the Award Is Contrary to 5 U.
S.C. Section 4302(b)
Under 5 U.S.C. Section 4302, agencies are required to establish
performance appraisal systems with job elements and performance
standards which will, to the maximum extent feasible, permit accurate
evaluation of performance on the basis of objective criteria related to
the job in question. Although the Union alleges that the Arbitrator's
award is contrary to that provision, the Union has failed to provide any
information to substantiate its allegation and to show in what manner
the award is contrary to the provision. An arbitrator may properly
examine whether management has properly applied an employee's
established performance standards and elements. See Newark Air Force
Station and American Federation of Government Employees, Local 2221, 30
FLRA 616 (1987). In our view, the Union is only disagreeing with the
Arbitrator's conclusion that the grievant was rated properly under the
performance standards established for her position. Such an exception
fails to establish that the Arbitrator's award is deficient on the
ground that it is contrary to law. See, for example, U.S. Department of
the Air Force, Scott Air Force Base, Illinois and National Association
of Government Employees, Local R7-23, 34 FLRA 640 (1990) (union failed
to show that grievant was entitled to higher rating); Carswell Air
Force Base and American Federation of Government Employees, Local 1364,
32 FLRA 789 (1988) (denying exceptions that arbitrator failed to
properly evaluate grievant's performance under established standards and
Air Force regulations).
The Union's exceptions are denied.
(*) As we find below, it is apparent from the background in the
Arbitrator's award that the issue contains an incorrect date. The
correct date of the appraisal period was from October 1, 1988, to
September 30, 1989.
40 FLRA 636
40 FLRA NO. 57
Dept. of the Army, Headquarters III Corps and Fort Hood, Fort Hood,
Texas and AFGE, Local 1920 (Zembower, Arbitrator), Case No. 0-AR-2012
(Decided May 3, 1991)
7122(a)
7117
ARBITRATION EXCEPTIONS
GOVERNMENT-WIDE REGULATIONS
5 U.S.C. 2302
5 U.S.C. 7116(a)(7)
The Arbitrator upheld a grievance which claimed that the Agency
violated the agreement when it unilaterally implemented certain
Government-wide regulations, and directed the Agency to rescind its
implementation to the extent that the regulations affected related
articles of the agreement. The Authority denied the exceptions, finding
that it was clear that the award did not conflict with section 7117,
noting that the Arbitrator found that the Agency was obligated by the
agreement to provide notice of its intention to implement the disputed
Government-wide regulation, which they did not do. Accordingly, the
regulation did not become enforceable by operation of law, specifically
7116(a)(7).
Case No. 0-AR-2012
U.S. DEPARTMENT OF THE ARMY, HEADQUARTERS III CORPS AND FORT HOOD,
FORT HOOD, TEXAS
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1920
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to the award of
Arbitrator Patrick E. Zembower 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. /1/
The Union did not file an opposition to the Agency's exception.
The Union filed a grievance claiming that the Agency violated the
parties' collective bargaining agreement when it unilaterally
implemented certain Government-wide regulations. The Arbitrator upheld
the grievance and directed the Agency to rescind its implementation of
the regulations to the extent that they affected related articles of the
agreement.
For the following reasons, we conclude that the award is not
deficient under section 7122(a) of the Statute. Accordingly, we will
deny the exception.
The parties' collective bargaining agreement was executed by the
parties on August 24, 1987. Article 41 of the agreement provides, in
pertinent part:
Article 41. Duration of the Agreement
Section 1
This agreement will remain in full force and effect for 30 months
from the date of approval by the agency and the union. . . .
Section 2
Either party may give written notice to the other, no more than
105 nor less than 60 days prior to the contract expiration date,
and each subsequent expiration date, for the purpose of
renegotiating this agreement. The present agreement will remain
in full force and effect during the renegotiation of said
agreement and until such time as a new agreement is approved.
Section 3
If neither party serves notice to renegotiate this agreement, the
agreement shall be automatically renewed for 1-year period,
subject to the provisions of this article.
Award at 6.
Neither party provided notice, pursuant to Article 41, Section 2, of
an intent to renegotiate the agreement.
However, as relevant here, the Agency notified the Union on February
5, 1990, that it intended to implement provisions of Federal Personnel
Manual (FPM) Chapters 339 and 351 on March 1, 1990. The Agency provided
the Union with an opportunity to bargain over the impact and
implementation of the new regulations under Article 3, Section 7 of the
agreement, which provides:
Article 3.
Section 7. Impact and Implementation Bargaining
Impact and implementation bargaining is defined as negotiations
regarding proposed changes on matters outlined in Section 7106
Title 5 USC for appropriate arrangements for employees adversely
affected by those changes. . . . It is understood and agreed the
employer will identify all proposed changes of working conditions
and notify the union at least 7 calendar days in advance of the
proposed effective date. As a minimum, the notification will
include the names of the affected employees, their work location,
and the nature of the change. If no request for impact/
implementation bargaining is received by the proposed effective
date, the employer will implement the change. If the union
requests bargaining, negotiations will commence not later than 7
calendar days from the date of receipt of the request . . . .
The Union did not accept the Agency's offer to bargain "because of
its belief that the notice was invalid, because the Employer failed to
follow the contract." Id. at 7. The Agency then implemented FPM
Chapters 339 and 351.
The Union filed a grievance over the issue of when the Agency can
"'reopen' the contract to implement higher level regulations that change
the contract(,)" and whether the Agency's unilateral implementation
violated the agreement. Id. at 2. When the grievance was not resolved,
it was submitted to arbitration. The Arbitrator framed the issues
before him as follows:
When did the agreement expire?
Did the agency violate the agreement when it unilaterally
implemented certain government- and agency-wide regulations
following expiration of the agreement?
If so, what should the remedy be?
Award at 2.
Before the Arbitrator, the Agency asserted that the parties'
agreement expired on February 24, 1990, and, pursuant to Article 41, was
automatically renewed on February 25. The Agency claimed that as the
agreement expired, it was obligated under a Department of Defense
regulation to bring the renewed agreement into conformance with
Government-wide regulations. /2/ The Agency claimed that "(w)hile the
agency could have given the union notice during the renegotiation
window, it elected not to do so." Award at 3. According to the Agency,
it was obligated only to bargain over the impact and implementation of
the disputed regulations and, as a result, properly gave the Union
notice of its intent to implement the regulations under Article 3,
Section 7 of the agreement.
The Arbitrator rejected the Agency's arguments. First, the
Arbitrator determined that the automatic renewal date of the agreement
was February 24, 1990, not February 25, as the Agency claimed. The
Arbitrator then determined that, under Article 41, Section 2, the
"renegotiating window" was from November 10, 1989, through December 25,
1989. Id. at 7.
Second, the Arbitrator determined that Article 41, Section 2 applied
to the Agency's decision to "bring the agreement into conformance with
new or changed regulations that change the collective bargaining
agreement(.)" Id. at 10. The Arbitrator stated, in this regard, that
the Agency "was obligated to follow Article 41, section 2 rather than
Article 3, section 7." Id. at 11-12. Noting that the Agency provided
the Union with notice of its intention to implement the disputed
regulations on February 5, 1990, the Arbitrator concluded that the
Agency violated Article 41 of the agreement.
Third, the Arbitrator rejected the Agency's argument that it was
required, under the DoD regulation, to implement the disputed
regulations. The Arbitrator held that the Agency was required to follow
the "controlling provisions" of the parties' agreement. Id. at 10. The
Arbitrator stated that he did not believe that the DoD regulation could
be interpreted as requiring the Agency to "violate its agreement when
implementing governing regulations . . . ." Id. at 11.
The Arbitrator concluded that "(t)he contract has not expired. By
its own terms, the contract is still in full force and effect." Id. at
8. Consequently, as the Arbitrator concluded also that the Agency
violated Article 41 of the parties' agreement, he sustained the
grievance and ordered the Agency to rescind the implementation of FPM
Chapters 351 and 339, as they related to the provisions of the
agreement. Id. at 13.
The Agency excepts to the award to the extent that it orders the
Agency to rescind implementation of FPM Chapters 339 and 351. The
Agency asserts that requiring the Agency to adhere to provisions of an
agreement which conflict with Government-wide regulations in effect
prior to the effective date of the renewed agreement is contrary to
section 7117 of the Statute. According to the Agency, it properly gave
the Union notice of its intention to implement the disputed regulations
and, even though the parties did not bargain pursuant to the Agency's
notice, the Agency was required "upon the expiration of (the) agreement,
to adhere to existing (G)overnment-wide rules and regulations . . . and
to conform its practices to those rules and regulations." Exception at
5. The Agency also asserts that it acted in accordance with the DoD
regulation when it "attempted to bring its expired agreement into
compliance with existing laws and government-wide regulations. . . ."
Id. at 4.
Under section 7117 of the Statute, Government-wide rules and
regulations bar negotiation over and agreement to union proposals that
conflict with them. Except for Government-wide rules or regulations
implementing 5 U.S.C. Section 2302, however, Government-wide rules or
regulations do not control over conflicting provisions in a collective
bargaining agreement if the agreement was in effect before the date the
rule or regulation was prescribed. See 5 U.S.C. Section 7116(a)(7).
See also 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, 193 (1990) (Fort Campbell).
Section 7116(a)(7) of the Statute is interpreted and applied by the
Authority "narrowly." DCA, 37 FLRA at 1228. As such, provisions in a
collective bargaining agreement control over conflicting Government-wide
regulations "for the express term of the agreement during which the
Government-wide regulation was first prescribed, but no longer." Id.
Moreover, the enforceability of Government-wide regulations is not
"dependent on negotiations upon the expiration of the collective
bargaining agreement." Id. Instead, such Government-wide regulations
become enforceable "by operation of law when the agreement expires." Id.
Applying the foregoing principles in this case, it is clear that the
award does not conflict with section 7117 of the Statute. The
Arbitrator found that the Agency was obligated by the parties'
collective bargaining agreement to provide notice, in accordance with
Article 41, of its intention to implement the disputed Government-wide
regulations. It is not disputed that the Agency did not do so. The
Arbitrator concluded, based on his interpretation of the agreement, that
as neither party gave appropriate notice under Article 41, the agreement
"has not expired. By its own terms, the contract is still in full force
and effect." Award at 8.
It is clear from the award that the parties did not agree that the
Agency could implement the disputed Government-wide regulations without
regard to the procedures set forth in Article 41 of the agreement.
Instead, the parties agreed that Article 41 governed the implementation
of the regulations. Moreover, unlike the situation in DCA, where there
was no dispute that the parties' agreement had expired and been renewed,
the Arbitrator found here that the agreement did not expire.
Accordingly, the disputed Government-wide regulations did not become
enforceable by operation of law.
We reject, in this regard, the Agency's argument that Article 41, as
interpreted and applied by the Arbitrator, conflicts with section 7117
of the Statute. Indeed, the Authority previously has considered and
rejected a similar argument. In American Federation of Government
Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons
Station, Concord, California, 32 FLRA 1023, 1068-72 (1988) rev'd as to
other matters sub nom. Department of the Navy, Naval Weapons Station
Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 2, 1989), the
Authority held negotiable a provision which established the duration of
a collective bargaining agreement and provided that the agreement would
remain in full force and effect during any renegotiations.
Specifically, the Authority rejected the agency's argument that the
provision was inconsistent with the same DoD regulation relied on by the
Agency here. The Authority stated, in this regard, that the disputed
provision did not conflict with the DoD regulation and did not otherwise
prevent the agency from bringing the agreement into conformance with
governing regulations because:
The (a)gency has the opportunity to give notice to the (u)nion
that it wishes to reopen the contract 90 days prior to its
expiration. If the (a)gency provides appropriate notice, all
matters would be reopened and subject to renegotiation.
Id. at 1071. Accord American Federation of Government Employees,
AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base,
Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587,
1609-10 (1987).
As interpreted and applied by the Arbitrator, the Agency agreed to
provide notice of its intention to implement the disputed
Government-wide regulations pursuant to Article 41 of the parties'
collective bargaining agreement. In fact, the Agency conceded that
although it "could have given the union notice during the renegotiation
window, it elected not to do so." Award at 3. Consistent with Authority
precedent, Article 41, as interpreted and applied by the Arbitrator, is
fully enforceable. Consequently, the award enforcing Article 41 does
not conflict with section 7117 of the Statute and is not deficient under
section 7122(a) of the Statute.
Finally, it is unnecessary for us to determine whether, as the Agency
asserts, the Agency acted consistent with the DoD regulation. The
Arbitrator found that Article 41 of the parties' agreement applied, and
was "controlling(,)" with respect to the issue in this case. Award at
10. Provisions in a collective bargaining agreement "take precedence
over agency rules and regulations with respect to matters to which they
both apply." Fort Campbell, 37 FLRA at 194. Accordingly, even if the
Agency acted consistent with the DoD regulation, that fact would not
excuse its violation of the parties' agreement or otherwise render the
Arbitrator's award deficient.
In sum, we have no basis on which to conclude that the Arbitrator's
award conflicts with section 7117 of the Statute or is deficient on any
of the grounds set forth in section 7122 of the Statute. Accordingly,
we will deny the Agency's exception.
The Agency's exception is denied.
(1) The Agency also filed a supplemental submission noting the
Authority's decision in U.S. Department of Defense, Defense Contract
Audit Agency, Central Region and American Federation of Government
Employees, Local 3529, 37 FLRA 1218 (1990) (DCA), and presenting
additional arguments. The Authority's Regulations do not provide for
the filing of supplemental submissions and we find no circumstances
justifying our consideration of the Agency's submission in this case.
We are, however, cognizant of DCA and will address it in our analysis of
the Agency's exception.
(2) The Agency relied on Department of Defense Civilian Personnel
Manual (CPM) 1400.25-M, Chapter 711, Subchapter 3-3c(2) (hereinafter the
DoD regulation), which provides:
Federal law and rules and regulations implementing 5 U.S.C. 2302
regarding prohibited personnel practices supersede conflicting
provisions in a collective bargaining agreement. Other
substantive Government-wide, DoD and cognizant primary national
subdivision rules, regulations and policies, which do not merely
transmit requirements imposed by law, do not supersede such
provisions during the term of that agreement. However, provisions
must be brought into conformance with those rules, regulations,
and policies at the time the agreement is renegotiated or when it
is renewed or extended and such renewal or extension will result
in its being in effect for more than three years and 90 days since
it was last brought into conformance with applicable laws and
regulations.
Attachment 2 to Exceptions at 2.
40 FLRA 614
40 FLRA NO. 56
NTEU, Chapter 51 and Internal Revenue Service, Wichita District
Office (Bernstein, Arbitrator), Case No. 0-AR-1645 (Decided May 1, 1991)
7122(a)
ARBITRATION EXCEPTION
SAFE AND HEALTHFUL WORK ENVIRONMENT
HAZARD DUTY PAY
RESTORATION OF ANNUAL OR SICK LEAVE
REIMBURSE OUT-OF-POCKET MEDICAL CASE COSTS
PAY FOR MEDICAL EXAMINATIONS
FEDERAL EMPLOYEES COMPENSATION ACT
DEPARTMENT OF LABOR ADMINISTRATION
OFFICE OF PERSONNEL MANAGEMENT
5 C.F.R. 550.903(b)
HAZARDOUS DUTY ACT
5 U.S.C. 5545
5 U.S.C. 8116(c)
5 U.S.C. 7901
BACK PAY ACT
5 U.S.C. 5596
The grievance in this case alleged that the Agency violated the
agreement by failing to maintain a safe and healthful work environment.
The Arbitrator sustained the grievance and directed the Agency to: (1)
pay hazard duty pay if regulations permit such payment or, if not,
petition for an amendment to the applicable regulations; (2) restore
annual or sick leave to its employees; (3) reimburse unit employees for
out-of-pocket medical care costs; and (4) pay for unit employees'
medical examinations.
The Agency's first and second exceptions are Agency contentions that
the award is contrary to law if interpreted as requiring the Agency to
award 25 percent hazard duty pay and that the award fails to resolve the
issue of entitlement to hazard duty pay and, therefore, cannot be
implemented. The Authority noted that the award provides for hazard
duty pay, only to the extent that current regulations authorize such
payments. Alternatively, the award directs a petition to OPM for an
amendment to its regulations. The Authority found that, in the absence
of any exceptions to the alternative remedy, they could find that the
award merely requires parties to take actions consonant with law, and
not deficient as being contrary to law. However, the Authority stated
in would address the Arbitrator's substantive findings as to employee
entitlement to hazard pay. On the merits of that issue, the Authority
found that the Arbitrator failed to make a finding that is a necessary
prerequisite to the awarding of hazard duty pay and that OPM regulations
do not authorize hazard duty pay in the circumstances presented in the
case. Consequently, to the extent the award could be read as requiring
the Agency to pay hazard duty pay, the award is deficient.
The Agency's third exception is that the award is inconsistent with
law by directing the restoration of leave, reimbursement for medical
expenses, and the payment for physical examinations. The Authority
requested an advisory opinion from the Department of Labor (DOL)
concerning the applicability of the Federal Employee Compensation Act
(FECA) to the matters in dispute, thereafter providing the parties an
opportunity to respond to DOL's Opinion. The Authority concluded that
the restoration of leave is not contrary to law, noting that DOL's
statement that the FECA "does not specifically govern the actions of
employing agencies with regard to either the use of leave or the
restoration of leave," and that the restoration of leave is an
appropriate remedy under the Back Pay Act.
The Authority further found that the reimbursement for medical
expenses and payment for medical examinations is contrary to law. In
the Authority's view, the particular items for which the Arbitrator
ordered payment or reimbursement are within the exclusive jurisdiction
of the FECA and its implementing regulations and do not pertain to
matters over which the Agency may have separate authority to grant
payment. The Authority noted that employees are not left without a
remedy if they believe they have incurred an occupational illness. The
provisions of the FECA constitute the mechanism for seeking such
redress. Moreover, employees who have already incurred expenses may
seek reimbursement for such expenses in accordance with the C.F.R.
Case No. 0-AR-1645
NATIONAL TREASURY EMPLOYEES UNION, NTEU CHAPTER 51
(Union)
INTERNAL REVENUE SERVICE, WICHITA DISTRICT OFFICE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Merton C. Bernstein 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 grievance in this case alleged that the Agency violated the
parties' collective bargaining agreement by failing to maintain a safe
and healthful work environment. The Arbitrator sustained the grievance
and directed the Agency to: (1) pay hazard duty pay if regulations
permit such payment or, if not, petition for an amendment to the
applicable regulations; (2) restore annual or sick leave to its
employees; (3) reimburse unit employees for out-of-pocket medical care
costs; and (4) pay for unit employees' medical examinations.
The Agency excepts to the award on the basis that it: (1) is
contrary to law to the extent that it awards 25 percent hazard pay to
the grievants; (2) cannot be implemented because it fails to resolve
the issue of entitlement to hazard pay; and (3) is contrary to law in
ordering restoration of leave, reimbursement for medical expenses, and
payment for physical examinations.
For the reasons which follow, we conclude that the portions of the
award directing the payment of hazard pay, reimbursement for medical
costs and expenses, and payment for medical examinations are deficient
and must be set aside.
The portions of the award directing the Agency to petition for an
amendment of hazard pay regulations and to restore leave are not
deficient. Accordingly, exceptions relating to those portions of the
award will be denied.
With regard to the portions of the award pertaining to the
restoration of leave, payment of medical costs and the provision of
medical exams, the Authority requested an advisory opinion from the U.
S. Department of Labor (DOL), which is charged with administering the
Federal Employees Compensation Act (FECA), 5 U.S.C. Section 8101 et seq.
The DOL Opinion, as well as the parties' responses thereto, are set
forth in our discussion of the pertinent Agency exception.
The group grievance arose after the Agency moved its employees into
leased premises, which were also occupied by a company manufacturing
urethane. The move occurred in mid-November 1986. The Arbitrator found
that shortly after the move, management and employees became aware that
the work site had ventilation problems which management "tried to
ameliorate by locating smokers in one area." Id. at 3. /1/
The Arbitrator found that the ventilation problems persisted, and by
February 1987, the fumes produced by the operations of the manufacturing
company caused Agency employees to have various physical symptoms
including headaches, dizziness, and queasiness, which caused some
employees to take sick leave. The Agency requested that the landlord
either move the manufacturing operations or make alterations to the
building to isolate the fumes in the manufacturing portion of the
building. No actions were taken by the landlord. From late February to
early April, the problem did not recur. By April 27, 1987, however, the
fumes again entered the Agency's work space. An industrial hygiene
survey subsequently conducted by a General Services Administration
contractor revealed that methyl ethyl ketone (MEK), a solvent, was being
used on the manufacturer's premises to clean the floor, and that MEK
fumes had entered the Agency's work space through a substandard fire
wall and other openings. The industrial hygienist found that the fumes
and vapors were causing "a potential health and fire safety hazard to
the individuals subjected to the exposure within the (Agency's)
office(,)" but that the exposure was short term and, "once removed from
the premises ill affects should subside." Id. at 4-5.
The Arbitrator then noted the Agency's conclusion that the level of
MEK "did not meet the accepted limits for either explosive or hazardous
exposure(,)" and that the level fell well below the limits determined to
be safe by the Occuptational Safety and Health Administration (OSHA) for
workplace exposure. Id. at 5. However, because employees continued to
experience health problems, and in view of the lack of cooperation by
the landlord, the Agency vacated its space on June 1, 1987.
Turning to the merits of the grievance, the Arbitrator found that by
early February 1987, the Agency was aware of a substandard wall between
the manufacturer's operations and the Agency's space. The Arbitrator
also found that the Agency's reliance on the results of the industrial
hygienist's survey to establish that the levels of MEK were below
accepted levels "do not establish that on other earlier occasions
'accepted limits' for MEK were not exceeded." Id.
The Arbitrator then reviewed provisions of the parties' collective
bargaining agreement and found that the Agency violated sections 1A, 1C
and 2 of Article 27. /2/ More specifically, the Arbitrator found that
the Agency violated section 1A of Article 27 by failing to provide and
maintain a safe and healthful working environment for its employees.
The Arbitrator rejected the Agency's contention that it had fulfilled
its obligations under the agreement by attempting to have the
manufacturer removed from the premises. The Arbitrator found, instead,
that the agreement required the Agency to provide a safe workplace and
to maintain safe and healthful working conditions, not merely to attempt
to do so.
With regard to section 1C, which obligates the Agency "to 'institute
prompt and appropriate action to correct any unsafe working condition .
. . reported(,)'" the Arbitrator found that the Agency failed to remove
its employees from premises that it knew would expose them to health
hazards which "were serious enough for management to make plans to
terminate the lease." Id. at 8, 9. The Arbitrator found that the Agency
should not have waited to resolve its lease problems prior to honoring
its contractual safety obligations and that the Agency delayed moving
until "serious injury occurred." Id. at 10.
Finally, the Arbitrator concluded that the Agency breached "its
contractual duty to advise the Union and employees" of the hazardous
working conditions, as required by section 2 of Article 27. Id.
Having found that the Agency violated the parties' agreement, the
Arbitrator then considered the following remedy requested by the Union:
(1) payment of hazard pay for the period employees were co-located with
the urethane manufacturer; (2) restoration of leave taken by employees
during that period; (3) compensation for out-of-pocket medical care
costs incurred by the employees; and (4) payment for physicals to
determine whether employees incurred injuries.
With regard to the Union's first request, the Arbitrator examined law
and regulation governing hazard duty pay, set forth at 5 U.S.C. Section
5545(d), 5 C.F.R. Part 550, Subpart I, and Appendix A to Subpart I.
Appendix A contains a schedule of pay differentials that are authorized
for irregular or intermittent hazardous duty. The Arbitrator found that
the regulation "focuses on the potentiality of health hazards . . ." and
authorizes 25 percent hazard duty pay for exposure to toxic chemical
hazards. Id. at 14. The Arbitrator determined that the employees
"worked in proximity to danger of fumes from toxic chemicals to which
they were subjected intermittently(,)" that the danger existed
throughout the period the employees were co-located with the urethane
manufacturer and that, therefore, hazard pay should be given for the
entire period. Id. Consequently, he directed the Agency to provide
hazard pay for the period during which the employees worked at the
unhealthy premises or, "if current regulations do not authorize such
payments(,)" to petition the Office of Personnel Management (OPM) to
amend Appendix A to allow for such payment. Id.
With regard to the other relief requested by the Union, the
Arbitrator found that inasmuch as the Agency breached its contractual
obligations to provide and maintain a safe and healthful workplace, the
Agency was obligated to take the following actions:
Restore annual or sick leave taken for periods of illness
associated with fumes during the period January -- May 1987,
including time off taken for the purpose of medical examinations
during that period or subsequently in relation to possible damage
and (Office of Workers' Compensation) claims; Reimburse employees
for out-of-pocket medical care costs for illness associated with
fumes during that period; Pay for the reasonable cost of medical
examinations to ascertain whether they sustained damage due to
exposure to fumes.
Id. at 19. /3/ In ordering such relief, the Arbitrator rejected the
Agency's argument that the FECA is the exclusive means for the
restoration of leave and medical care payments. The Arbitrator found,
instead, that under the subsequently enacted hazard pay provisions, as
well as the parties' agreement, the employees were entitled to the
relief requested.
A. The Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because
it: (1) is contrary to law if interpreted as awarding 25 percent hazard
pay to the grievants; (2) fails to resolve the issue of entitlement to
hazard pay and, therefore, cannot be implemented; and (3) violates law
by directing the restoration of leave, reimbursement of medical
expenses, and the payment for physical examinations.
More specifically, as to the first exception, the Agency contends
that the Arbitrator failed to make the necessary findings which would
entitle employees to hazard duty pay. According to the Agency, hazard
duty pay for General Schedule employees is paid when employees are
exposed to a hazard based on the duties assigned to them, and not when
accidental exposure to unknown environmental conditions occurs. In this
regard, the Agency contends that the grievants were not assigned
hazardous duty and that the conditions in their working environment were
not shown to have posed an unusual hazard. The Agency argues that, at
most, there was an accidental exposure to unknown and unexpected
environmental conditions. Under these circumstances, the Agency argues
that the Arbitrator could not find an entitlement to hazard duty pay
and, therefore, that the award of such pay is contrary to law.
In its second exception, the Agency contends that the "award cannot
be implemented as written." Exceptions at 5. The Agency explains that
by directing it to petition OPM for authorization to provide hazard duty
pay, the award is not clear as to whether hazard pay is authorized. The
Agency states that absent further clarification, it cannot comply with
this portion of the award.
In its final exception, the Agency contends that the award
contravenes the FECA. The Agency claims that in enacting the FECA,
Congress provided a "comprehensive statutory framework" for addressing
employee claims for physical examinations, reimbursement of medical
expenses, and reimbursement for leave. Id. at 6. The Agency also
argues that the FECA provides the exclusive remedy for Federal employees
seeking compensation for work related injuries suffered during
employment and that no other procedure, such as a negotiated grievance
procedure, can be used to pursue recovery. In support, the Agency
relies on Lockheed Aircraft Corp. v. U.S., 460 U.S. 190 (1983)
(Lockheed).
B. The Union's Opposition
The Union generally disputes the Agency's exceptions and contends
that they represent nothing more than an attempt to relitigate the
merits of the dispute before the Authority. In this regard, the Union
contends that the Arbitrator examined pertinent law governing the
payment of hazard duty pay, and that his award is fully consistent with
those authorities. The Union also states that the Arbitrator's order
that the Agency pay hazard duty pay must be followed unless the
Authority finds that such pay is not authorized. The alternative remedy
directed by the Arbitrator -- to petition OPM to provide for hazard duty
pay in such circumstances -- only becomes operative, according to the
Union, if the Authority reverses the award of hazard duty pay.
Finally, the Union contends that the Arbitrator's award concerning
restoration of leave, reimbursement for medical costs, and the provision
of medical exams is fully supported by the record and is fully
consistent with his remedial authority. The Union contends that the
Agency is incorrect in its assertion that the FECA precludes the
remedial relief directed by the Arbitrator because the FECA is "designed
to protect the (G)overnment from suits filed pursuant to statutes that
waive the (G)overnment's sovereign immunity . . . (,)" and also because
the exclusive liability provisions of the FECA do not extend to remedies
issued under negotiated grievance procedures. Opposition at 15-16. The
Union also argues that the FECA is inapplicable because "the nature of
the injuries suffered by the grievants are not the type contemplated by
the FECA(.)" Id. at 17. Finally, the Union states that there are many
other Federal statutes which "authorize the payment of compensation for
personal injuries, notwithstanding FECA(,)" and that the mandatory
grievance procedure contained in the Statute is an example of a
legislative means of obtaining compensation for a breach of contractual
duties. Id.
A. Agency's First and Second Exceptions
First, the Agency contends that the award is contrary to law if
interpreted as requiring the Agency to award 25 percent hazard pay to
the grievants. Second, the Agency asserts that the award fails to
resolve the issue of entitlement to hazard pay and, therefore, cannot be
implemented.
We note initially that the Arbitrator rendered an award of hazard
duty pay, only to the extent that current regulations authorize such
payments. Alternatively, the Arbitrator directed the Agency to petition
OPM for an amendment to its regulations. In the absence of any
exception to the alternative remedy, we could find that the award, which
merely requires parties to take actions consonant with law, is not
deficient as being contrary to law. However, both parties argue that
the Authority must decide whether the Arbitrator could properly direct
the Agency to pay hazard duty pay. Because the parties have essentially
interpreted the award as requiring such payment, and in order to avoid
the need for further clarification which the Agency states would be
necessary before compliance with the award could be effected, we will
address the Arbitrator's substantive findings as to employee entitlement
to hazard pay.
Hazard pay differentials are authorized by the Hazardous Duty Act, 5
U.S.C. Section 5545, and the implementing regulations contained in 5 C.
F.R. Sections 550.901 et seq., and Appendix A to 5 C.F.R. Part 550
(Schedule of Pay Differentials Authorized for Irregular or Intermittent
Hazardous Duty). Hazard pay differentials apply to employees, such as
the grievants, who are covered by Chapter 51 of title 5 of the United
States Code. Hazard pay differentials are based on a schedule
established by OPM and set forth in Appendix A to 5 C.F.R. Part 550,
Subpart I. 5 C.F.R. Section 550.904 states, in pertinent part, that
"(a)n agency shall pay the hazard pay differential listed in Appendix A
to an employee who is assigned to and performs any irregular or
intermittent duty specified in the appendix when that duty is not
usually involved in carrying out the duties of his position."
The Agency contends that hazard duty pay can be paid when employees
are assigned duties which expose them to hazards and that the grievants
were not assigned any hazardous duties. Consequently, the Agency argues
that the Arbitrator could not find an entitlement to hazard duty pay
under the circumstances presented here. We agree.
As noted, the regulations prescribed by OPM create an entitlement to
hazard pay for employees who are assigned to and perform any irregular
or intermittent duty specified in Appendix A, when that duty is not
usually involved in carrying out the duties of the employee's position.
Among the duties specified in Appendix A is exposure to hazardous
agents, including working with or in close proximity to toxic chemical
materials.
The Arbitrator interpreted the regulations as "focus(ing) on the
potentiality of health hazards . . ." and authorizing hazard duty pay
for exposure to toxic chemical hazards. Award at 14. The Arbitrator
determined that because employees worked in proximity to danger from
toxic chemical fumes, and were subjected to such danger on an
intermittent basis throughout the time they were co-located with the
urethane manufacturer, the employees were entitled to hazard pay.
In our view, the Arbitrator failed to make a finding that is a
necessary prerequisite to the awarding of hazard duty pay. As a
threshold matter, the regulation authorizes hazard pay to employees who
are assigned to and perform irregular or intermittent duties that are
specified in Appendix A. The employees here had not been assigned
duties that are specified in Appendix A. Although Appendix A lists
working with or in close proximity to toxic chemical materials, there is
no indication in the record, and the Arbitrator did not find, that the
employees are assigned to and perform irregular or intermittent duties
involving toxic chemicals. Consequently, there is no basis on which to
authorize hazard duty pay.
In contrast, the circumstances under which the Authority has found
hazard pay to be warranted are those in which employees performed, on an
irregular or intermittent basis, duties that were contained in Appendix
A. For example, in U.S. Department of Labor and National Council of
Field Labor Locals, American Federation of Government Employees,
AFL-CIO, 19 FLRA 300 (1985), the Authority sustained an arbitrator's
award ordering hazard pay for industrial hygienists who inspected an
explosives plant. However, in Veterans Administration Medical Center,
Leavenworth, Kansas and American Federation of Government Employees,
Local 85, 35 FLRA 14 (1990), we found that an arbitrator correctly
determined that there was no entitlement to hazard pay because Appendix
A did not list the item for which the hazard pay was sought.
For the reasons set forth above, we find that OPM regulations do not
authorize hazard pay in the circumstances presented in this case and the
Arbitrator could not properly order such payment. Consequently, to the
extent the award could be read as requiring the Agency to pay hazard
duty pay, the award is deficient.
However, the Arbitrator's alternative order, that the Agency petition
OPM to amend its regulations, to which no exception was filed, is not
deficient. 5 C.F.R. Section 550.903(b) specifically permits agencies to
file requests with OPM seeking to amend Appendix A. The Arbitrator's
order was, thus, fully consistent with the regulation. See also Veterans
Administration Medical Center, Leavenworth, Kansas and American
Federation of Government Employees, Local 85, 24 FLRA 902 (1986)
(arbitrator's order directing agency to request amendment to OPM
regulations found not deficient).
In sum, we find that the portion of the award which has been
interpreted as directing the Agency to pay hazard pay is deficient as
being inconsistent with regulations governing hazard pay. The award
will be modified to strike this portion. However, the portion of the
award directing the Agency to petition OPM to amend the regulations is
not deficient.
B. Third Exception
The Agency argues that the award is inconsistent with law by
directing the restoration of leave, reimbursement for medical expenses,
and the payment for physical examinations.
For the reasons set forth below, we conclude that the Arbitrator had
the authority to direct the Agency to restore the leave of the grievants
and that this portion of his award is not deficient. However, we find
that the portions of the award reimbursing employees for medical
expenses and providing physical examinations are contrary to law insofar
as such matters can only be provided in accordance with the FECA.
Accordingly, we will modify the award by striking the portions that are
inconsistent with law.
As noted previously, in addressing the contentions raised by the
parties as to this exception, the Authority requested an advisory
opinion from DOL concerning the applicability of the FECA to the matters
in dispute. The parties were given an opportunity to respond to DOL's
Opinion. /4/ The Opinion, and the parties' comments will now be
considered.
1. DOL Opinion
On June 21, 1990, the Authority submitted the following question to
the Secretary of Labor in accordance with section 7105(i) of the
Statute:
Does the FECA and the administrative process of the Office of
Workers' Compensation Programs (OWCP) under 20 C.F.R. chapter I
preclude the filing of grievances or the granting of remedies
under the FSLMR Statute, 5 U.S.C. Sections 7101-7135, concerning
personal injuries sustained by Federal employees during the course
of Federal employment?
On December 10, 1990, the Authority received the Opinion from DOL's
Office of Workers' Compensation Programs (OWCP), which is responsible
for interpreting and administering the FECA. As explained by OWCP, the
Secretary of Labor is vested with "complete and exclusive authority" to
decide all issues relating to whether a Federal employee can be
compensated under the FECA for injuries sustained in the performance of
duties. Opinion at 1. The OWCP stated that the FECA is a
"comprehensive statute that deals specifically with every aspect of an
employee's right to be compensated for a job-related injury." Id. at 2.
Regulations prescribed by the Secretary to effectuate the FECA are
Government-wide and controlling in all cases where injured Federal
employees seek benefits related to the injury.
The OWCP noted that the Secretary's exclusive authority to resolve
issues concerning compensability extends to all matters "relating to
medical care and treatment including the amount that will be expended
from the Employees' Compensation Fund in obtaining and paying for the
authorized services." Id. The OWCP further noted that "employing
agencies, such as the IRS, have no authority to either decide issues
arising under the FECA or issue decisions awarding or denying benefits
under that Act." Id.
The OWCP then considered whether issues similar to those reserved for
determination by the Secretary under the FECA could be considered by an
arbitrator. The OWCP expressed the view that even if an arbitrator's
consideration of such issues did not conflict with the Secretary's
statutory authority "the imposition of liability on the United States
for injury of a federal employee by any means other than the FECA would
appear to violate 5 U.S.C. 8116(c)." /5/ Id. at 3. The OWCP noted,
contrary to an argument advanced by the Union, that the FECA "does apply
to the kinds of illnesses allegedly sustained by the grievants in this
case." Id. at 4. In support of this assertion, OWCP noted that at least
two claims involving the grievants for benefits under the FECA had been
accepted by OWCP and that the FECA "is designed to compensate any
employee who sustains a disabling occupational disease resulting from
exposure at the workplace, as well as those who sustain traumatic
injuries." Id.
The OWCP further stated that section 8116(c) of the FECA was designed
to protect the Federal Government not only from suits under statutes
such as the Federal Tort Claims Act, but also from any liability imposed
on it in favor of injured employees through a direct judicial
proceeding. Id. On the other hand, OWCP also noted that "Section
8116(c) merely prohibits the imposition of liability, it does not
expressly preclude an agency from agreeing to provide additional
benefits, provided the agency has the authority to do so." Id. The OWCP
noted, in this connection, that if an agency had such authority and
entered into a valid collective bargaining agreement empowering the
arbitrator to make the award in question, "the 'liability' would not be
'imposed,' contrary to Section 8116(c), but voluntarily accepted by the
agency." Id. The OWCP also noted, however, that any matter
comprehensively dealt with in the FECA, "including medical expense
payments, made out of the Employees' Compensation Fund(,)" would not be
a subject over which an agency could bargain because such determinations
are within the Secretary's exclusive jurisdiction. Id.
The OWCP found, however, that the FECA "does not specifically govern
the actions of employing agencies with regard to either the use of leave
or the restoration of leave." Id. at 5. Consequently, the OWCP stated
that "(b)ecause the Secretary does not have final decision-making
authority with regard to this issue, we do not believe that the
arbitrator's order directing restoration of leave conflicts with the
provisions of the FECA." Id. The OWCP also found that "employing
agencies, such as the IRS, do have authority in certain circumstances,
separate from that granted to the Department of Labor under the FECA, to
conduct and pay for medical examinations where necessary for personnel
determinations." Id.
Finally, OWCP rejected the Union's assertion that the FECA is not the
exclusive remedy because other laws provide relief to employees injured
in the course of employment. The OWCP compared the remedies provided by
the other laws identified by the Union with the FECA remedies and
determined that they affirmed rather than negated the exclusivity of the
FECA. Id. at 6. The OWCP did concede, however, that other laws may
provide overlapping relief or mandate agency action and cited the OSHA
as an example.
2. Parties' Comments Concerning DOL's Opinion
The Agency agrees with the substance of DOL's Opinion as it pertains
to the exclusivity of benefits under the FECA. The Agency disagrees,
however, with OWCP's findings concerning leave restoration and medical
cost reimbursement. The Agency contends that if the Arbitrator directed
the Agency to restore leave as a make whole remedy, rather than under a
buy-back procedure set forth in the FECA, the award constitutes "an
award of back pay" and is prohibited by law. Agency Submission at 2.
In this regard, the Agency contends that because "there was no adverse
action taken against any of the grievants, . . ." the prerequisite for
an award of backpay has not been met and this portion of the award is
contrary to the Back Pay Act. Id. Finally, the Agency contends that
the provision of free medical examinations and medical cost
reimbursement also constitutes a monetary award and, as it is
unsupported by a finding of an adverse action, it is also barred by the
Back Pay Act. The Agency states that the Arbitrator did not cite to any
contract provision in which the Agency agreed to "such a benefit(,)" and
that the award "exceeds the benefits authorized by 5 U. S.C. Section
7901 which are implemented in (Federal Personnel Manual) FPM Chapter
792." Id. at 2, 3.
The Union contends that OWCP's conclusion that issues relating to the
FECA are outside the scope of the grievance procedure and collective
bargaining is erroneous. The Union argues that challenges to an
agency's violation of law fall within the statutory definition of
grievance and are subject to a negotiated grievance procedure. The
Union also notes that only matters that are specifically provided for by
law are excluded from the statutory definition of condition of
employment, but that here, "the employing agencies (sic) discretionary
decisions under FECA may be negotiated." Union Submission at 3.
Finally, it contends that the grievances in this case do not arise
solely under the FECA but rather under the parties' collective
bargaining agreement. The Union asserts that the notion of exclusivity
contained in 5 U.S.C. Section 8116(c) does not address the Government's
liability under grievance arbitration. In fact, the Union adds, DOL
found that agencies have authority, separate and apart from the FECA, to
provide the remedies of leave restoration and payment of medical
expenses. The Union contends that the Arbitrator's make whole remedy
for a contract violation is consistent with this authority and, also,
with the Back Pay Act.
3. Restoration of Leave Is Not Contrary to Law
We conclude that the portion of the Arbitrator's award directing the
Agency to restore unit employees' leave is not contrary to law.
In its exceptions to the award, the Agency argues that the FECA
provides the exclusive procedure for the restoration of leave. In its
response to DOL's Opinion, the Agency argues that the Arbitrator did not
order restoration of leave in accordance with the buy-back procedure
specified in the FECA but, rather, ordered restoration of leave as part
of a make whole remedy. The Agency characterizes the Arbitrator's make
whole remedy as an award of a monetary benefit that constitutes an award
of backpay. The Agency then argues that because no adverse action was
taken against any of the grievants, the award of backpay violates the
Back Pay Act.
This exception provides no basis for finding the award deficient.
First, we note DOL's statement that the FECA "does not specifically
govern the actions of employing agencies with regard to either the use
of leave or the restoration of leave." Opinion at 5. DOL indicated, by
way of example, that employing agencies can exercise their discretion
and allow employees to buy back any leave used in order to receive
compensation for an injury. /6/ However, DOL further found that the
Arbitrator's order directing restoration of leave did not conflict with
the FECA. To the extent the Agency argues that the FECA constitutes the
exclusive procedure for restoring leave, the Agency's exception lacks
merit. Thus, the agency that is charged with administering the
provisions of the FECA -- namely, DOL -- has determined that the FECA
does not preclude the Arbitrator's remedy in this case. We agree with
DOL and find that the Arbitrator's award directing the restoration of
leave is not contrary to the FECA.
The Agency's claim that the award violates the Back Pay Act also
lacks merit. Contrary to the Agency's assertion, restoration of leave
is an appropriate remedy under the Back Pay Act, 5 U.S.C. Section 5596,
when an employee has incurred the use of leave as the result of an
unjustified or unwarranted personnel action. See, generally, Department
of the Air Force, Kirtland Air Force Base and American Federation of
Government Employees, Local 2263, AFL-CIO, 19 FLRA 260 (1985), in which
the Authority discussed the requirements of the Back Pay Act in
connection with the use of sick leave. Moreover, it is well established
that an arbitrator's finding of a contract violation constitutes a
finding of an unwarranted or unjustified personnel action for purposes
of the Back Pay Act. See, e.g., U.S. Department of Labor, OIPA and
American Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA
368 (1987), Decision on Reconsideration, 27 FLRA 109 (1987).
In this case, the Arbitrator found that the Agency violated the
parties' agreement by failing to provide a safe and healthful workplace.
The Arbitrator further found that employees had become ill as a result
of their exposure to MEK, and that such illness necessitated the use of
leave by some of the employees. In view of the Arbitrator's findings
with regard to the contract violation, and the connection he found
between the use of leave and the basis for the contract violation, we
conclude that the Arbitrator made the requisite findings under the Back
Pay Act for an award ordering restoration of leave.
Consequently, for the reasons set forth above, this portion of the
award is not deficient.
2. Reimbursement for Medical Expenses and Payment for Medical
Examinations Is Contrary to Law
In directing the Agency to reimburse employees for medical care costs
and to pay for medical examinations, the Arbitrator relied on Section 7
of the parties' agreement. That section states, in pertinent part, that
"the arbitrator shall possess the authority to make an aggrieved
employee whole to the extent such remedy is not limited by law(.)" Award
at 15. In our view, the award of reimbursement or payment in this case
is limited by law, namely the FECA.
In this regard, the Agency asserts in its exceptions that the
portions of the award directing reimbursement for medical expenses and
the provision of physical examinations is contrary to the FECA. The
Agency argues that 5 U.S.C. Section 8116(c) provides an exclusive remedy
which precludes the use of a negotiated grievance procedure. In
support, the Agency relies on Lockheed. In its response to DOL's
Opinion, the Agency also asserts that this portion of the award is
contrary to the Back Pay Act, and exceeds the benefits authorized by 5
U.S.C. Section 7901, as implemented in FPM Chapter 792.
The Union argues that the exclusivity provision of the FECA was
designed to protect the Government from suits involving statutes that
waive the Government's sovereign immunity, and does not extend to
remedies ordered under a negotiated grievance procedure. The Union also
argues that the injuries suffered by the grievants here are not the type
of injury contemplated by the FECA. In its response to DOL's Opinion,
the Union acknowledges that DOL "is the sole authority empowered to
decide" FECA claims and that "an arbitrator cannot decide a FECA claim."
Union Submission at 4. However, the Union argues that the claim does
not arise out of the FECA but, rather, out of the parties' agreement.
In describing the authority of the Secretary of Labor to administer
the provisions of the FECA, DOL states that "(t)he Secretary's exclusive
authority extends . . . to all questions under the FECA relating to
medical care and treatment including the amount that will be expended
from the Employees' Compensation Fund in obtaining and paying for the
authorized services." Opinion at 2. More particularly with regard to
transportation expenses, DOL states that only the Secretary is
authorized to decide questions concerning such payments and that the
Authority's decision in American Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station,
Concord, California, 32 FLRA 1023 (1988) (Naval Weapons Station),
reversed as to other matters sub nom. Department of the Navy, Naval
Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir.
Feb. 7, 1989), was not in accord with such authority. DOL further
states that the Authority erred in finding, in Naval Weapons Station,
that FPM Chapter 810 authorizes agencies to pay transportation expenses.
In its Opinion, DOL also found that the particular illness alleged to
have been sustained by the grievants in this case falls within the
FECA's jurisdiction. In this regard, we note that under regulations
prescribed by the Secretary to implement the provisions of the FECA,
"(o)ccupational disease or illness" includes, among other things,
"exposure to hazardous elements such as, but not limited to, toxins,
poisons, fumes(.)" 20 C.F.R. Section 10.5(a)(16). DOL also states in
its Opinion, however, that "in certain circumstances," agencies, such as
the IRS, have authority to conduct and pay for medical examinations
"where necessary for personnel determinations." Opinion at 5. DOL
referenced 5 C.F.R. Sections 339.301-339.305 as providing authorization
separate from that contained in the FECA.
In our view, the particular items for which the Arbitrator ordered
payment or reimbursement are within the exclusive jurisdiction of the
FECA and its implementing regulations and do not pertain to matters over
which the Agency may have separate authority to grant payment. We reach
this conclusion based on an analysis of the pertinent regulatory
authorities.
The regulations implementing the FECA set forth procedures by which
an employee seeking compensation for an occupational disease or illness
can file claims for payment or reimbursement for various medical
expenses. Such procedures are contained generally in 20 C.F.R. Part 10.
Subpart E provides more specifically for the furnishing of medical
treatment. Among the items described therein are services and supplies
provided by or under the supervision of physicians and other medical
professionals. 20 C.F.R. Section 10.400(e). Claimants are entitled to
receive all medical services, appliances and supplies that are
prescribed or recommended and which are considered necessary for the
treatment of a job-related injury. 20 C.F.R. Section 10.401(a).
Reimbursement for other reasonable and necessary expenses, such as those
for transportation, are also authorized. Id. Bills for medical
services, appliances and supplies are submitted by the provider in
accordance with procedures outlined in 20 C.F.R. Section 10.411.
Employees who have paid for various services and supplies can seek
reimbursement under the procedure contained in 20 C.F.R. Section 10.412.
A review of these provisions demonstrate that they are specifically
designed to cover situations where employees believe that they have
sustained on-the-job injuries and are seeking payment or reimbursement
for expenses connected with such injuries. We find that the grievants'
claim in this case falls squarely within the scope of the regulations.
Moreover, 20 C.F.R. Section 10.22 states that "(t)he benefits provided
to employees . . . by the (FECA) constitute the exclusive remedy against
the United States for employment related injuries or deaths." In our
view, the Arbitrator was not empowered to direct the Agency to make
payments that are exclusively governed by the FECA's implementing
regulations. Our finding in this regard should not be interpreted as
holding that the Arbitrator was not empowered to hear the issues raised
in the grievance or that the issues were outside the scope of the
negotiated grievance and arbitration procedure. Rather, we simply find
that this portion of the award conflicts with law because only DOL can
authorize the payments at issue.
There are, however, occasions when an agency can pay for medical
examinations apart from the provisions of the above-cited regulations.
5 C.F.R. Sections 339.301-339.305, referenced by DOL as providing
separate authorization, outline situations where an agency orders or
offers medical examinations in connection with medical qualification
determinations. Examples of situations where an agency can order a
medical examination include preappointment examination or examination of
an employee who "is receiving continuation of pay or compensation as a
result of an on-the-job injury or disease" for the purposes of enabling
an agency to "determine medical limitations that may affect placement
decisions." 5 C.F.R. Section 339.301(a) and (c). Examples of situations
where an agency can offer a medical examination are those in which an
agency "needs additional medical documentation to make an informed
management decision(,)" and include situations where an employee
requests a change in duty status or assignment for medical reasons or
where an employee has a performance or conduct problem which may require
action by the agency. 5 C.F.R. Section 339.302.
Payment of medical examinations that are ordered or offered is
governed by 5 C.F.R. Section 339.304, which provides that:
Agencies shall pay for all examinations ordered or offered
under this subpart, whether conducted by the agency's physician or
the applicant's or employee's physician. Applicants and employees
must pay for a medical examination conducted by a private
physician (or practitioner) where the purpose of the examination
is to secure a benefit sought by the applicant or employee.
In our view, apart from the preappointment situation, medical
examinations authorized under these regulations are designed to ensure
that agencies make appropriate placement determinations following an
employee's application for or receipt of compensation as the result of
an on-the-job injury. By contrast, the Arbitrator here ordered the
Agency to pay for medical examinations that precede a claim for or
determination that an employee has suffered a compensable injury. Until
a determination is made that an employee has suffered a compensable
injury, the medical examinations can be said to be for the employee's
benefit. In other words, at a stage preliminary to the filing of a FECA
claim, the use of medical examinations to determine whether there is a
basis on which to pursue a FECA claim is personal to the employee and
for the employee's benefit. Therefore, the employee, and not the
Agency, is required to pay for examinations under these circumstances.
We recognize, of course, that exposure to hazardous substances is a
serious matter. Our finding that medical examinations at this
preliminary stage are for the employee's personal benefit does not
ignore the potential adverse consequences flowing from exposure. What
we find, however, is that the relief for injuries sustained as a result
of such exposure, including payment of or reimbursement for expenses, is
covered by the FECA and its implementing regulations. Employees are not
left without a remedy if they believe they have incurred an occupational
illness. The provisions of the FECA constitute the mechanism for
seeking such redress. Moreover, as previously indicated, employees who
have already incurred expenses may seek reimbursement for such expenses
in accordance with 20 C.F.R. Section 10.412.
Additionally, we note that the FECA's implementing regulations
prohibit an agency from authorizing examinations or medical or other
treatment "in any case already disallowed by the (OWCP)." 20 C.F.R.
Section 10.403. If the Agency were directed to pay for medical
examinations and a grievant's claim were disallowed, the Agency would be
placed in the position of acting contrary to the regulation. In fact,
the Arbitrator found that claims filed by some of the grievants had been
disallowed. To now sustain the Arbitrator's order directing payment
would be inconsistent with 20 C.F.R. Section 10.403.
In sum, we find that the payments directed by the Arbitrator in this
case -- namely, reimbursement for out-of-pocket medical care costs and
payment for medical examinations -- are covered exclusively by the FECA.
The Arbitrator was not empowered to order remedial relief that falls
within the exclusive purview of the FECA and its implementing
regulations. Accordingly, this portion of the award is inconsistent
with law.
This is not to say that all matters relating to occupational illness
are outside the scope of an arbitrator's remedial authority. For
example, in American Federation of Government Employees, National
Council of Field Labor Locals and U.S. Department of Labor, Mine Safety
and Health Administration, Denver, Colorado, 39 FLRA 546 (1991), we
sustained an arbitrator's award finding that official time and travel
expenses in connection with a grievant's OWCP hearing were authorized
under the parties' collective bargaining agreement. /7/ Also, as we
have found in this case, the Arbitrator was fully within the scope of
his remedial authority in directing the restoration of leave.
In view of our conclusion, it is unnecessary to pass on the Agency's
additional contentions concerning the applicability of Lockheed (in
which the Court held that 5 U.S.C. Section 8116(c) did not bar a
third-party indemnity action against the United States) and its claims
that the award is inconsistent with the Back Pay Act and 5 U.S.C.
Section 7901, and its implementing regulations. Additionally, although
DOL referenced OSHA as requiring an agency to take certain actions in
cases involving employee exposure to toxic fumes, the parties have not
cited to any provision of OSHA as being relevant to this case, and we
need make no further findings as to the applicability of OSHA.
Finally, in finding that the implementing regulations of the FECA
govern transportation expenses, we disavow the portion of our analysis
in Naval Weapons Station finding that agencies have the authority to
reimburse employees for transportation expenses. The references to FPM
Chapter 810, a regulation prepared by OWCP, relate to the administration
of the FECA and to reimbursement of claims by OWCP. As DOL indicates,
Chapter 810 does not authorize agencies to pay such expenses.
The portions of the award directing the payment of hazard pay,
reimbursement for medical care costs and payment for medical
examinations are deficient and are struck from the award. The Agency's
exceptions relating to those portions of the award directing the Agency
to petition OPM and to restore leave are denied.
(1) The findings made by the Arbitrator were based on a summary of
events provided by the Agency.
(2) The pertinent provisions of the agreement, relied on by the
Arbitrator, are set forth in the Appendix.
(3) The Arbitrator also noted that several unit employees had filed
FECA claims, and that as of the date of the arbitration hearing, two
claims had been allowed and several denied. Award at 15.
(4) Additionally, the Union submitted a statement to DOL that was
addressed in the Opinion.
(5) 5 U.S.C. Section 8116(c), states:
(c) The liability of the United States or an instrumentality
thereof under this subchapter or any extension thereof with
respect to the injury . . . of an employee is exclusive and
instead of all other liability of the United States or the
instrumentality to the employee, his legal representative, . . .
and any other person otherwise entitled to recover damages from
the United States or the instrumentality because of the injury .
. . in a direct judicial proceeding, in a civil action, or in
admiralty, or by an administrative or judicial proceeding under a
workmen's compensation statute or under a Federal tort liability
statute.
(6) 20 C.F.R. Section 10.310, referenced by DOL with regard to the
buy-back procedure, provides, in part:
(a) An employee who sustains a job-related disability may use sick
or annual leave or both to avoid interruption of income. If the
employee uses leave during a period of disability caused by an
occupational disease or illness, and a claim for compensation is
approved, the employee may, with the approval of the employing
agency, "buy back" the used leave and have it recredited to the
employee's account. . . . (b) If the employing agency does not
approve a repurchase of leave, then no compensation may be paid
for the period leave was used. Where the agency agrees to the
leave repurchase, the employee may elect to have the compensation
payable for the period paid directly to the employing agency to be
applied against the amount due the agency to effect the
repurchase.
(7) In contrast to transportation expenses that are specifically
enumerated in connection with the provision of medical services, travel
expenses for claimants in connection with OWCP hearings are not
specifically covered by the FECA's implementing regulations.
Article 27 provides, in relevant part, as follows:
Section 1A
The Employer will, to the extent of its authority and consistent with
the applicable requirements of Title 29 of the Code of Federal
Regulations, provide and maintain safe and healthful working conditions
for all employees and will provide places of employment which are free
from recognized hazards that are causing or are likely to cause death or
serious physical harm. The Union will cooperate to that end and will
encourage all employees to work in a safe manner.
Section 1C
In districts and regions the Employer will designate a safety
representative for each post of duty of more than ten (10) employees;
and in the National Office, a representative will be designated for each
building housing bargaining unit employees. Representatives will be
responsible for reporting to the safety officer any hazardous or unsafe
conditions which they observe or which are reported to them. The
Employer will, to the extent of its authority, initiate prompt and
appropriate action to correct any unsafe working condition so reported.
Section 2
When the Employer discovers a violation of Occupational Safety and
Health Administration (OSHA) standards, it shall immediately notify the
Union of that condition. The Employer shall also notify affected
employees of the condition.
40 FLRA 592
40 FLRA NO. 55
Veterans Administration Medical Center, Leavenworth, Kansas and AFGE,
Local 85, Case No. 7-CA-80676 (Decided April 30, 1991)
7116(a)(1) and (5)
7103(a)(14)
UNFAIR LABOR PRACTICE
UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT
REMOVING SMOKING-RELATED PRODUCTS FROM SALE AT CANTEEN
CONDITIONS OF EMPLOYMENT
PERTAINS TO
DIRECT CONNECTION
LINK
NEXUS
At issue was a charge that the Respondent violated section 7116(a)(
1) and (5) by unilaterally removing all smoking-related products from
sale at the hospital canteen without providing the Union an opportunity
to bargain over the substance, impact and implementation of the change.
The Authority's analysis first considered whether the action at issue
concerned a "condition of employment," as defined by 7103(a)(14). The
Authority found that while the matter of the availability for sale of
smoking-related products in the canteen "pertains to" unit employees,
the record did not establish that there is a "direct connection" between
the availability for sale of these products and "the work situation or
employment relationship" of unit employees. Applying the its Antilles
test to the facts of the case, the Authority agreed with the Judge that
there is no evidence that the availability for sale of tobacco products
"affects the employees' work situation or employment relationship."
Accordingly, the complaint was dismissed.
Member Talkin dissented. In her view, a sufficient nexus had been
established between the availability for sale of smoking materials at
the hospital and the work situation of the bargaining unit employees.
Accordingly, she would have found a violation on the basis of the
discontinuance of the sale without providing the Union an opportunity to
bargain over the decision.
Case No. 7-CA-80676
VETERANS ADMINISTRATION MEDICAL CENTER /1/ LEAVENWORTH, KANSAS
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 85
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz. /2/
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that the Respondent did not violate
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally removing all
smoking-related products from sale at the hospital canteen without
providing the Union an opportunity to bargain over the substance, impact
and implementation of the change.
The General Counsel filed exceptions to the Judge's Decision. The
Respondent filed an opposition to the General Counsel'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. The rulings are hereby affirmed. Upon consideration of the
Judge's decision and the entire record, we adopt the Judge's findings,
conclusions, and recommended Order only to the extent consistent with
our decision below.
The Veterans Canteen Service and Medical Center are separate
activities at the Leavenworth facility. The Canteen Officer is
responsible for the management of the canteen, reports to the Canteen
Service Management in Washington, D.C., and serves as a part of the
Medical Center's management staff. The Associate Director of the
Medical Center acts as a "coordinating contact" between the Canteen
Service and the Medical Center and his office is responsible for issuing
notices that might affect the canteen and its employees, as well as
patients, veterans and visitors to the facility. Hearing Transcript at
55-56, 88.
The Canteen Service operates two canteens at the Leavenworth
facility. One canteen is located in the hospital (Building #89) and the
other is located in Building #7, about two blocks from the hospital.
Most of the bargaining unit employees in this case work at locations
closer to the canteen in Building #7 than to the hospital canteen.
Hearing Transcript at 54, 78. The Canteen Service was created by
statute, 38 U.S.C. Sections 4201 et seq., for the "primary purpose" of
making available to patients, at reasonable prices, articles and
services essential to the patients' comfort and well-being. Employees
and visitors may also use the canteen facilities. The Veterans
Administration had been encouraging its Medical Centers to eliminate
smoking in their hospitals.
After renovation of the hospital canteen was completed, the Canteen
Officer removed all smoking-related products from sale at the hospital
canteen. Signs and bulletins announced this decision, but the Union was
not provided with advance notice and the opportunity to request
bargaining over the substance, impact and implementation of the
decision. The other canteen continued to sell smoking-related products.
The Judge stated that the Authority has established two basic factors
to consider in deciding whether a proposal involves a condition of
employment within the meaning of section 7103(a)(14) of the Statute.
Those two factors are: "(1) (w)hether the matter proposed to be
bargained pertains to bargaining unit employees; and (2) (t)he nature
and extent of the effect of the matter proposed to be bargained on
working conditions of those employees." Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA 235, 236-37
(1985) (Antilles) (emphasis in original). The Judge then reviewed
subsequent Authority decisions which have applied the Antilles criteria.
Finally, the Judge applied the Antilles criteria to the record in this
case.
The Judge noted that the Authority stated as an example of whether a
matter pertains to bargaining unit employees, that "a proposal which is
principally focused on nonbargaining unit positions or employees does
not directly affect the work situations or the employment relationship
of bargaining unit employees." Id. at 237. The Judge stated that in
this case, the Canteen Service was created by statute for the "primary
purpose" of making available to patients, at reasonable prices, articles
and services essential to the patients' comfort and well-being. Judge's
Decision at 10, citing 38 U.S.C. Section 4201.
The Judge found that smoking materials continued to be available for
sale to employees in Building No. 7, two blocks away from the hospital
canteen. Judge's Decision at 6, 10. In addition, the Judge found that
"there is no evidence that the purchase of tobacco products was
essential to work performance or affected the employees' work situation
or employment relationship." Id. at 10. The Judge concluded that the
sale of smoking materials by the Canteen Service under the circumstances
of this case is not a condition of employment within the meaning of the
Statute, and that the Respondent was under no obligation to negotiate
with the Union on the decision to discontinue such sales or the impact
and implementation of that decision. Id. at 11.
The General Counsel contends that the Judge erred in failing to find
that the sale of smoking materials by the Canteen Service at the
hospital canteen constitutes a condition of employment of bargaining
unit employees. The General Counsel also argues that the Judge erred by
failing to conclude that the Respondent violated the Statute by not
providing the Union advance notice of the decision to stop the sale of
smoking materials at the hospital canteen, and not providing the Union
an opportunity to bargain over the substance, impact and implementation
of the decision.
The General Counsel contends that the Judge should have taken
official notice, pursuant to section 2423.19(o) of the Authority's Rules
and Regulations, "that bargaining unit employees use tobacco products in
designated smoking areas during duty hours, including during scheduled
break periods. Although no evidence was presented regarding unit
employee use of tobacco products, it would be safe to assume that in a
bargaining unit of approximately 630, some employees use tobacco
products during duty hours in areas designated for that purpose."
Exceptions at 2-3.
The General Counsel states that the Authority has held that smoking
by unit employees in designated smoking areas while on duty involves a
condition of employment. The General Counsel urges the Authority to
extend the rationale concerning the designation of smoking areas to find
that the purchase of smoking materials is a substantively negotiable
condition of employment. The General Counsel contends that "the removal
of smoking materials from sale in the Building 89 Canteen 'vitally
affects' the working conditions under which unit employees are permitted
to smoke in designated smoking areas." Id. at 5. The General Counsel
argues that "(w)ithout on-site access to the purchase of smoking
materials, the use of designated smoking areas by unit employees could
be rendered meaningless." Id.
The Respondent states that the General Counsel has the burden of
proving the allegations of the complaint by a preponderance of the
evidence and claims that the General Counsel has failed to present
evidence to support the complaint. The Respondent contends that the
General Counsel had to show that the sale of smoking materials in the
hospital canteen affects bargaining unit employees' conditions of
employment. The Respondent argues that a Judge cannot base a finding on
evidence not presented, and that the General Counsel's exceptions
regarding the Judge's findings and matters to be officially noticed are
attempts "to cover (the General Counsel's) failure to present evidence
on the effect of the discontinuance of sale on even one single
employee." Respondent's Brief at 5.
We find, in agreement with the Judge, that the availability for sale
of smoking-related products in the hospital canteen has not been
established to be a condition of employment. Therefore, the Respondent
did not violate section 7116(a)(1) and (5) when it unilaterally removed
smoking-related products from sale at the hospital canteen without
advance notice to the Union and bargaining over the substance, impact
and implementation of the change.
In determining whether a management action gives rise to a duty to
bargain under the Statute, when management's exercise of its authority
involves a change, it must first be determined whether the action
concerns "conditions of employment," which are defined by section 7103(
a)(14) of the Statute as "personnel policies, practices, and matters .
. . affecting working conditions(.)" See Antilles. See also United
States Department of Justice, United States Immigration and
Naturalization Service, El Paso District Office, 34 FLRA 1035, 1040
(1990).
In deciding whether a matter involves a condition of employment of
bargaining unit employees, the Authority considers whether: (1) the
matter pertains to bargaining unit employees; and (2) the record
establishes that there is a direct connection between the matter and the
work situation or employment relationship of bargaining unit employees.
Antilles, 22 FLRA at 237.
In this case, we find that the matter of the availability for sale of
smoking-related products in the hospital canteen "pertains to"
bargaining unit employees. However, the record does not establish that
there is a "direct connection" between the availability for sale of
smoking-related products in the hospital canteen and "the work situation
or employment relationship" of unit employees. In American Federation
of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F. 2d 1443
(D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals
for the District of Columbia Circuit reviewed the Authority's
application of the second part of the Antilles test. The court noted
that under Antilles, "the Authority inquires into the extent and nature
of the effect of the practice on working conditions." AFGE, Local 2761,
866 F.2d at 1445. In determining whether the matter there in issue was
a condition of employment, the court examined whether there was a "link"
or "nexus" between that matter and the worker's employment. Id. at
1447, 1449. The court found that where a matter has "a direct effect on
the work relationship(,)" it concerns a condition of employment. Id. at
1449. In AFGE, Local 2761 the court found that the agency practice of
holding an annual picnic at which awards were presented constituted a
condition of employment. Compare American Federation of Government
Employees, Local 225 and U.S. Army Armament Research and Development
Command, Dover, New Jersey, 11 FLRA 630, 631 (1983) (proposal dealing
with employee access to picnic area found not to be a condition of
employment).
In applying Antilles to the facts in this case, we agree with the
Judge that there is no evidence that the availability for sale of
tobacco products "affected the employees' work situation or employment
relationship." Judge's Decision at 10. The General Counsel did not
establish a "link" or "nexus" between the availability for sale of
smoking products in the hospital canteen and bargaining unit employees'
work situation. The parties are responsible for creating a record upon
which a decision can be made. See National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'q
National Federation of Federal Employees, Local 1167 and Department of
the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead
Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to sustain
its burden acts at its peril. We decline to make a determination
regarding an unfair labor practice allegation based on assumptions
regarding factual matters where relevant evidence could have been, but
was not, presented.
We agree with our dissenting colleague that the fact that the case
before us is an unfair labor practice proceeding, not a negotiability
dispute, makes no difference in the applicable analysis. In cases
involving the question of whether a matter concerns a condition of
employment, the requirement that the Authority base its determination on
the record presented applies equally to negotiability disputes as well
as to unfair labor practice cases. See National Association of
Government Employees, Local R1-25 and Veterans Administration Medical
Center, Brockton, Massachusetts, 23 FLRA 266 (1986) (VAMC Brockton) (the
agency discontinued its practice of providing surplus coffee to
employees and the union proposed that the practice not be discontinued;
the Authority found in a negotiability proceeding that the union had
provided no specific information as to how the disposal of the coffee
was related to the work situation of employees or the employment
relationship and, therefore, found that the record did not demonstrate
that the proposal concerned a matter which is a condition of
employment).
While the Authority has found that the determination of "smoking
policies," including the designation of smoking and non-smoking areas,
concerns conditions of employment, the situation in this case does not
concern the determination of such a "smoking policy." See, for example,
National Association of Government Employees, Local R14-32 and
Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593, 595-96
(1987) (Fort Leonard Wood). The issue in this case has no bearing on
whether there will be designated smoking areas at the Leavenworth
facility or whether employees may smoke while on duty or during nonwork
time at the facility.
Accordingly, based on the record in this case, we conclude that no
direct connection has been shown to exist between the Respondent's
decision to remove smoking materials from sale at the hospital canteen
and the work situation or employment relationship of the bargaining unit
employees in this case. See VAMC Brockton. Compare U.S. Department of
Health and Human Services, Social Security Administration Region X,
Seattle, Washington, 37 FLRA 880, 887 (1990) (SSA) (the agency
unilaterally discontinued its practice of providing branch offices with
subscriptions to the Federal Times; the parties stipulated that copies
of the Federal Times were placed in branch offices and were read by
employees as a source of information on matters directly relevant to
Federal employment, and the Authority found that providing branch
offices with subscriptions concerns conditions of employment);
Department of the Treasury, Internal Revenue Service (Washington, D.C.);
and Internal Revenue Service Hartford District (Hartford, Connecticut),
27 FLRA 322, 325, 334 (1987) (the agency unilaterally removed a
microwave oven, a new large refrigerator and other conveniences from the
break room; the Authority found that the parties had agreed to the use
of the large refrigerator and that managers and unit employees had used
the microwave oven and the other conveniences and that the appliances
and conveniences were conditions of employment).
Finally, we note that in finding that the decision to cease the sale
of smoking materials at the hospital canteen was not a condition of
employment, the Judge stated that the hospital canteen was created by
statute for the primary purpose of serving the patients and that the
change "was not directed to employees alone but to all customers of the
Hospital Canteen." Judge's Decision at 11. However, these factors do
not affect the analysis used in determining whether the matter at issue
involves unit employees' conditions of employment. The effect on
bargaining unit employees will be examined regardless of the announced
purpose or aim of an agency's action. See SSA, 37 FLRA at 887.
In conclusion, the record does not establish that the availability
for sale of smoking-related products at the hospital canteen constitutes
a condition of employment of unit employees. Therefore, we find that
the Respondent did not have a duty to bargain over the change in the
availability of smoking-related products at the hospital canteen.
Accordingly, we conclude that the Respondent did not violate section
7116(a)(1) and (5) of the Statute as alleged.
The complaint is dismissed.
Opinion of Member Talkin, dissenting.
In my view, a sufficient nexus has been established between the
availability for sale of smoking materials at the hospital and the work
situation of the bargaining unit employees. Accordingly, I would find
that the availability for sale of tobacco products in the hospital
canteen involved a condition of employment and that the Respondent
violated section 7116(a)(1) and (5) of the Statute by deciding to
discontinue their sale without providing the Union an opportunity to
bargain over that decision.
As my colleagues acknowledge, the Authority consistently has held
that the establishment of a smoking policy at the workplace involves a
condition of employment. For example, U.S. Department of Health and
Human Services, Public Health Service, Indian Health Service, Indian
Hospital, Rapid City, South Dakota and National Federation of Federal
Employees, Local 179, 37 FLRA 972, 974 (1990). There was no evidence
introduced in this case that smoking by employees is prohibited in the
hospital and every reason to believe that the Union wishes to bargain
over the Respondent's new policy because at least some of the
approximately 630 bargaining unit employees have been affected by that
policy. I note in this regard that approximately 200 bargaining unit
employees work in the hospital building.
The canteen is open 7 days a week during the daytime working hours
and is open to Medical Center employees, apparently without restriction.
See Judge's Decision at 10. In these circumstances, it strains belief
to rely, as does the majority, on the absence of proof that any
employees in fact bought smoking materials from the canteen. Rather, it
is entirely reasonable to assume some of the bargaining unit employees
have used the canteen to buy tobacco products for use at the workplace
during working hours. On that assumption, I find a sufficient nexus
between the availability for sale of these products at the hospital
canteen and the bargaining unit employees' work situation to meet the
second prong of test set forth in Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA 235, 236-37
(1986).
In reaching this conclusion, I see no difference between the analysis
that should be used in an unfair labor practice case, such as this, and
the traditional inquiry made by the Authority in a negotiability case.
Had this been a negotiability case regarding a proposal requiring the
Agency to continue its practice of selling tobacco products at the
workplace, I have no doubt but that the Authority would have found the
proposal to involve a condition of employment. In that context, I
believe that the Authority would have determined that the proposal
concerned the conditions of employment of unit employees based on the
access of those employees to the facility selling the products and the
fact that the union was seeking to retain such sales at the workplace,
even if there had been no evidence as to the employees' smoking habits
or on-site purchasing record. Cf. National Association of Government
Employees, Local R14-32 and Department of the Army, Fort Leonard Wood,
Missouri, 26 FLRA 593 (1987) (Proposal 4, which prohibited smoking in
child care centers except for visiting adults and staff in designated
smoking areas, found to concern condition of employment based only on
evidence that unit employees worked at the child care center). In this
regard, I stress that I refer only to the issue of whether the proposal
would be found to concern a condition of employment; the issue of
negotiability would, of course, depend on other evidence in the record.
The majority cites National Association of Government Employees,
Local R1-25 and Veterans Administration Medical Center, Brockton,
Massachusetts, 23 FLRA 266 (1986) (VAMC Brockton), for the proposition
that the Authority will determine a negotiability issue on the record
presented and that if there is no demonstration in the record that a
proposal concerns a condition of employment, the Authority will not so
find. I agree with this characterization of our precedent. In my view,
however, this case is distinguishable from VAMC Brockton. In VAMC
Brockton the union presented no evidence whatsoever as to the link
between the agency's prior practice of providing surplus coffee to
employees and the work situation of those employees. 23 FLRA at 267.
In contrast, the record here indicates a number of factors that
demonstrate the importance to the unit employees of the continued
availability of smoking products in the hospital canteen. Thus, the
record establishes that unit employees have access to the canteen, that
it is open during the employees' working hours, that it would take at
least 10 minutes for employees to get to the Medical Center's other
canteen that still sells tobacco products if they "hurry, and they
wouldn't get to have any type of break." Transcript at 39. Moreover,
the other canteen is open far fewer hours than is the canteen located at
the hospital. Id. at 37. Finally, I note that there was testimony that
a Union steward served on a committee formed to designate smoking areas
at the Medical Center, thereby indicating that smoking at the workplace
was a matter of concern to the unit employees.
Thus, the evidence indicates that the employees have access to the
hospital canteen, that the canteen had, until April 1, 1988, sold
tobacco products, and that the Union has sought to retain their sale for
the benefit of the employees whom it represents. On this evidence, I
would find that the continued availability for sale of tobacco products
in the canteen concerns a condition of employment because it pertains to
unit employees and because a nexus has been shown between that continued
availability for sale and the work situation of those employees.
Further, as the Respondent has admitted that it did not provide the
Union with advance notice and the opportunity to request bargaining over
the matter, and as the Respondent has not raised any law or regulation
that would preclude it from engaging in such bargaining, I would find
that the Respondent violated section 7116(a)(1) and (5) by its failure
to afford the Union an opportunity to bargain over its decision.
Case No. 7-CA-80676
VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 85
Charging Party
Maurice D. Copp, Esq., For the Respondent
Pamela Kane, For the Charging Party
Matthew L. Jarvinen, Esq., For the General Counsel
Before: SALVATORE J. ARRIGO, Administrative Law Judge
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq. (herein the Statute).
Upon an unfair labor practice charge having been filed by the
captioned Charging Party (herein the Union) against the captioned
Respondent, the General Counsel of the Federal Labor Relations Authority
(herein the Authority), by the Regional Director for Region VII, issued
a Complaint and Notice of Hearing alleging Respondent violated the
Statute by failing to provide notice and an opportunity to bargain with
the Union over the substance and impact and implementation of the
decision to remove from sale all smoking related materials from
Respondent's Canteen.
A hearing on the Complaint was conducted in Leavenworth, Kansas at
which all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.
Upon the entire record in this case, my observation of the witnesses
and their demeanor and from my evaluation of the evidence, I make the
following:
At all times material the American Federation of Government
Employees, AFL-CIO (herein AFGE) has been the exclusive certified
collective bargaining representative of a national consolidated unit of
various Veterans Administration employees including approximately 630
employees located at the Leavenworth Kansas Veterans Administration
Medical Center (herein sometimes Respondent, VAMC or the Medical
Center), the Leavenworth and Fort Leavenworth, Kansas National
Cemeteries and Canteen Service employees situated at Respondent's
Leavenworth, Kansas facility. At all times material the Union has been
an affiliate and an agent for AFGE for the purpose of representing
employees located at Respondent's facilities in Leavenworth, Kansas,
including approximately 20 Canteen Service employees. At all times
material the Veterans Administration and AFGE have been parties to a
master national collective bargaining agreement covering the above
employees. Further, the Medical Center and the Union are parties to a
supplemental collective bargaining agreement which provides, inter alia.
"The unit for which Local 85 is recognized as the exclusive
representative includes all regular workforce employees of this VA
Medical Center, the Leavenworth and Fort Leavenworth National
Cemeteries, and Veterans Canteen Service employees except:
management officials, professional employees, employees engaged in
Federal personnel work in other than a purely clerical capacity,
and supervisors as defined in 5 USC Chapter 71."
The supplemental agreement covers various terms and conditions of
employment for employees described in the unit including: official time
for representational duties for union officers and stewards; use of
official facilities; investigations, discipline and adverse action;
overtime, time and leave; health, safety and environment; Equal
Employment Opportunity; promotion and placement; and hours of work.
In the agreement, use of the term "the employer" or "management" clearly
refers to the Medical Center and no distinction is made regarding the
applicability of the terms of the agreement to Medical Center employees
and Canteen employees.
The Veterans Canteen Service is an activity of the Veterans
Administration within the meaning of section 2421.4 of the Rules and
Regulations of the Authority. Section 4208 of Title 38, United States
Code, Chapter 75 provides, inter alia:
"Section 4201. Purpose of Veterans' Canteen Service
The Veterans' Canteen Service (hereinafter in this chapter
referred to as the "Service") in the Veterans' Administration is
an instrumentality of the United States, created for the primary
purpose of making available to veterans of the Armed Forces who
are hospitalized or domiciled in hospitals and homes of the
Veterans' Administration, at reasonable prices, articles of
merchandise and services essential to their comfort and
well-being." . . . . .
Section 4203. Operation of Service
(a) The canteens at hospitals and homes of the Veterans'
Administration shall be primarily for the use and benefits of
veterans hospitalized or domiciled at such hospitals and homes.
Service at such canteens may also be furnished to personnel of the
Veterans' Administration and recognized veterans' organizations
employed at such hospitals and homes and to other persons so
employed, to the families of all the foregoing persons who reside
at the hospital or home concerned, and to relatives and other
persons while visiting any of the persons named in this
subsection; however, service to any person not hospitalized,
domiciled, or residing at the hospital or home shall be limited to
the sale of merchandise or services for consumption or use on the
premises." . . . . .
"Section 4208. Service to be independent unit
It is the purpose of this chapter that, under control and
supervision of the Administrator, the Service shall function as an
independent unit in the Veterans' Administration and shall have
exclusive control over all its activities including sales,
procurement and supply, finance, including disbursements, and
personnel management, except as otherwise herein provided."
The highest management official at the Medical Center is the VAMC
Director. He is responsible to the Veterans Administrative Central
Office in Washington, D.C. According to the organizational chart
approved by the Veterans Administrative Associate Deputy Chief Medical
Director, the Canteen is under the jurisdiction of the Associate
Director of the Medical Center /1/ as are other functions including
building management, bargaining, fiscal, personnel, security and supply.
The Canteen Officer is responsible for the management of the Canteen
and is also part of the Medical Center's management staff and attends
staff meetings along with other Service Chiefs. According to the
Canteen Officer's Official Position Description, the Canteen Officer is
responsible to Canteen Service Management in Washington, D. C. for
operating Canteen activities and works under the general supervisor of
Canteen Service Management. However, the Position Description also
indicates the Canteen Officer is responsible to both Canteen Service
Management and the Medical Center Director for certain unspecified
"administrative phases" and keeps both informed concerning Canteen
matters. Testimony reveals that the Associate Director of the Medical
Center acts as a "coordinating contact" between the Canteen and the
Medical Center and his office is responsible for issuing notices which
might affect the Canteen and its employees as well as patients, veterans
and visitors to the facility. The Canteen Service has a separate system
from the Medical Center for grading employees and the contractual
grievance procedure for Canteen employees in the national agreement does
not involve Medical Center management. However the Medical Center does
provide technical advice and assistance to the Canteen including
personnel service such as screening applicants for employment and
processing the paper work and labor relations advice and recommendations
on grievances, discipline, contract interpretation, counseling
techniques and investigation of misconduct. The Medical Center also
provides payroll bookkeeping services for the Canteen.
The Canteen Service operates two Canteens at the Leavenworth
facility. One Canteen is located in the Hospital building (Building
#89) and another Canteen (Building #7) is located about two blocks
(about a five to ten minute walk) from the Hospital Canteen. The
Hospital Canteen is open from 7:30 a.m. to 4:30 p.m. on Monday through
Friday and from 8:30 a.m. to 4:00 on Saturday and Sunday. The Building
#7 Canteen is open from 9:00 a.m. to 1:00 p.m., Monday through Friday.
Both Canteens provide breakfast and lunch for customers and sell snacks,
clothing, jewelry and tobacco products. Both Canteens are open to
patients, Medical Center employees and visitors.
For the past approximately two years the Veterans Administration has
been encouraging VA Medical Centers to eliminate smoking in their
hospitals. In pursuit of that goal Gerald Hines, the Leavenworth
Medical Center Associate Director, met with Ralph Shalda, Leavenworth
Canteen Officer sometime in 1987 and persuaded him to remove smoking
related products from sale at the Canteen located in the Hospital
(Building #89) although Shalda was not in favor of the idea. It was
agreed that smoking related products would be removed from sale in the
Hospital Canteen when building remodeling, which was being undertaken in
Building #89, was completed. In August 1987 Janet McDonald replaced
Shalda as Canteen Officer at the Medical Center. On October 15, 1987
Associate Director Hines sent McDonald the following memoranda:
"1. I had discussed with Ralph Shalda, prior to your arrival,
the removal of tobacco products from the B-89 Retail Store. It
was discussed we would do it but not when. After our discussion,
we agreed the best time would be after the renovation of the store
in B-89, which I think we should plan for.
"2. We should let everyone know of this plenty of time in
advance and also state purchase of tobacco products can be made in
B-7 Canteen.
"3. If you have any further questions, please let me know."
On April 1, 1988 the Hospital Canteen ceased selling tobacco products
although tobacco products were still available for purchase in Building
#7. The Union was not provided with advance notice and the opportunity
to request bargaining over the substance, impact and implementation of
the decision to remove the smoking materials. /2/ Bulletins issued
during various times in March by Associate Medical Center Director Hines
had previously announced the closing to employees and patients.
Ultimate Findings, Discussion and Conclusions
The General Counsel contends the record contains sufficient indicia
of the Medical Center's control over the Canteen Service to hold
Respondent accountable for the removal of smoking materials from the
Building #89 Canteen. In any event, the General Counsel contends the
Medical Center was required to bargain with the Union to the extent of
its discretion over the matter including considering proposals that it
submit requests or recommendations to the Canteen Service that smoking
materials continue to be available for purchase in the Canteen. Further
the General Counsel argues that even if the removal of smoking materials
is not considered to be substantively negotiable, Respondent
nevertheless was obligated to bargain over the impact and implementation
of the change.
Respondent contends the Canteen is under the control of the VA
Canteen Service, not the Medical Center, and accordingly the Medical
Center is not a proper respondent in this case. Respondent further
contends the sale of smoking materials in the Canteen is not a condition
of employment over which any bargaining obligation exists in the
circumstances herein. /3/
The Medical Center as Respondent.
The record herein discloses the Canteen Officer is part of the
Medical Center Director's management staff and an official
organizational chart shows the Canteen under the authority of the
Associate Center Director. Numerous support services including
personnel, labor relations and payroll are provided by the Medical
Center to the Canteen. The record also reveals the removal of the
smoking materials for the Canteen was upon the request of the Associate
Director. Thus an identity of interest is established between the
Medical Center and the Canteen.
Such factors, standing alone, do not conclusively show the Canteen
operated at the direction and control of the Medical Center. However,
the collective bargaining unit herein, includes Canteen Services
employees and Medical Canteen employees as employees of the Veterans
Administration. The supplemental agreement between the Medical Center,
an activity of the Veterans Administration and accordingly its agent in
this regard, and the Union, an agent for AFGE, the exclusive
representative of all Veterans Administration employees including
Canteen Service employees, encompasses Leavenworth Canteen employees and
covers numerous terms and conditions of employment for those employees.
The supplemental agreement was signed by the Medical Center Director and
was approved by the "Chief Medical Director", obviously a representative
of the Veterans Administration. Nowhere in that agreement are Canteen
employees treated differently from Medical Center employees and the
terms of that agreement does not differentiate between such employees.
Thus, while the Canteen Service is a separate and independent entity
within the Veterans Administration, the Medical Center negotiated terms
and conditions of employment with the agent for AFGE covering Canteen
Service employees at the Medical Center facility and that agreement was
approved by the Veterans Administration, the parent body of both the
Medical Center and the Canteen. In these circumstances I find and
conclude the Veterans Administration authorized the Medical Center to
act on its behalf in dealing with the agent of the certified
representative to represent the interests of Canteen employees at the
facility. Accordingly in all the circumstances herein I find and
conclude the Medical Center is a proper party respondent in these
proceedings. Cf. Overseas Education Association, Inc. and Department of
Defense Dependent Schools, 27 FLRA 492 (1987) Proposal 1 at 497 and
Overseas Education Association, Inc. and Department of Defense
Dependent Schools, 22 FLRA 351 (1986) Union Proposal 5 at 361.
Smoking Materials as a Condition of Employment.
In Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA 235 (1985), the Authority stated it
considered the following two basic factors in deciding whether a
proposal involves a condition of employment within the meaning of
section 7103(a)(14) of the Statute: /4/
"(1) Whether the matters proposed to be bargained pertains to
bargaining unit employees; and (2) the nature and extent of the
effect of the matter proposal to be bargained on working
conditions of those employees."
In that case the Authority found under the second factor stated above
that the union's proposals for the creation of privileges at the
agency's retail, recreational, and medical facilities did not concern
conditions of employment because there was no showing on how the
employees' access to these facilities, off the job, related to their
working conditions.
The Authority also stated as an example of whether a matter pertains
to bargaining unit employees, that "a proposal which is principally
focused on nonbargaining unit positions or employees does not directly
affect the work situations or the employment relationship of bargaining
unit employees." (Emphasis added).
Antilles Consolidated Education Association was followed by National
Association of Government Employees, Local R 1-25 and Veterans
Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266
(1986), wherein the Authority applied the factor concerning the nature
and extent of the effect of the matter on unit employees' working
conditions to determine whether a proposal was a condition of employment
within the meaning of the Statute. That case concerned the
negotiability of a union proposal made in response to an agency
discontinuing a practice of making available to employees left-over
coffee which had been provided for consumption by patients. The union
proposed the practice not be discontinued. The Authority found
insufficient basis for concluding the matter concerned working
conditions since the union provided no specific information as to how
disposal of the coffee was related to the employees' work situation or
the employment relationship, the Authority stating as an example:
". . . there are no details as to whether consumption of the
coffee occurred when employees were on-duty or off-duty or whether
consumption was tied to their status as employees as opposed to
being a privilege afforded to any member of the public present at
the facility at the time the surplus coffee was available."
Thus, it appears that if the employees' coffee was consumed as a
privilege afforded to members of the public at the time the coffee was
available, such would be a factor against finding the privilege to be a
condition of employment.
In Department of Defense, Department of the Army, Fort Buchanan, San
Juan, Puerto Rico, 24 FLRA 971 (1986), the union alleged the respondent
therein violated the Statute by unilaterally terminating patronage
privileges for civilian employees at the Ft. Buchanan Post Exchange.
While acknowledging that unit employees lost a convenience when their
exchange privileges were terminated, the Authority found there was no
showing as to how employees' access to Exchange facilities related to
their working conditions since there existed an abundance of private
sector shopping alternatives near employees' homes and the base.
Accordingly, the Authority found insufficient facts to justify a
determination that Exchange privileges concerned conditions of
employment under the Statute. In so finding the Authority distinguished
Fort Buchanan from those cases in which similar Exchange or patronage
privileges were found to be conditions of employment since in those
cases it was determined that the privileges were necessary to enable
employees to sustain adequate living standards under the circumstances
of those cases. See, for example, Department of the Air Force, Eielson
Air Force Base, Alaska, 23 FLRA 605 (1986) and Department of the Army,
Fort Greely, Alaska, 23 FLRA 858 (1986).
In the case herein the Canteen was created by statute for the
"primary purpose" of making available to patients, at reasonable prices,
articles and services essential to the patients' comfort and well-being.
The Canteen Service therefore is charged with selecting what articles
and services are essential to patients' comfort and well-being, be it
cigarettes, coffee, snacks, articles of clothing, deodorant, jewelry or
whatever. The statute giving rise to the Canteen Service also permitted
the Canteen Service to extend Canteen availability to facility employees
and visiting members of the public and indeed employees have been
utilizing the Canteen. /5/
The record reveals that although the sale of tobacco products was
curtailed in Building #89, tobacco products continued to be sold to
employees in Building #7, two blocks away for the Hospital Canteen. /6/
In addition there is no evidence that the purchase of tobacco products
was essential to work performance or affected the employees' work
situation or employment relationship. Cf. American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 33 FLRA 335 (1988).
I conclude the sale of smoking materials by the Canteen Service under
the circumstances of this case is not a condition of employment within
the meaning of the Statute. The change herein was not directed to
employees alone but to all customers of the Hospital Canteen. Indeed if
the sale of smoking materials was found to be a condition of employment
herein, Respondent would be required to negotiate with the Union over
any change in the sale of cigarettes, or for that matter any change in
the sale of any of the other items or services provided primarily for
patients, before changing its product line. Conceivably Federal Service
Impasse procedures could ultimately determine what goods were to be sold
by the Canteen Service simply because employees were effected, although
the operation of Canteen Service was primarily designed by statute for
the comfort and well-being of patients. The very purpose of the Canteen
could be shifted from services for patients to services for employees.
Given the significant impact of determining the line of products to be
sold at the Canteen on patients as opposed to the insignificant impact
on bargaining unit employees at the facility, in all the circumstances
herein I conclude the sale of smoking products at the Canteen in
Building #89 is not a condition of employment within the meaning of the
Statute.
Having concluded the sale of smoking products in the Building #89
Canteen is not a condition of employment, I conclude Respondent was
under no obligation to negotiate with the Union on the decision to
discontinue such sales or the impact and implementation of that
decision.
Accordingly, I recommend the Authority issues the following:
IT IS HEREBY ORDERED that the Complaint in Case No. 7-CA-80676 be,
and hereby is, dismissed.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: September 21, 1989
Washington, D.C.
(1) The Associate Director of the Medical Center testified the
organizational chart is in error in this regard.
(2) Admitted in Respondent's Answer to the Complaint.
(3) At the hearing Counsel for Respondent indicated other defenses
were being raised related to contentions of non-appropriated fund status
of the Canteen and the applicability of Colorado Nurses Association v.
FLRA, 851 F.2d 1486 (D.C. Cir. 1988). However, council does not mention
either theory in his brief and it would appear that such arguments have
been abandoned.
(4) Section 7103(a)(14) states in relevant part: "(14) 'conditions
of employment' means personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, affecting working
conditions . . ."
(5) Section 4203(a) of the statute, supra, provides that Canteen
services "may" be so furnished.
(6) I believe it is safe to assume smoking products are reasonably
available to employees in Leavenworth, Kansas. In any event, there is
no contention that cigarettes or other smoking products were not readily
available to employees in the Leavenworth, Kansas area.
40 FLRA 584
40 FLRA NO. 54
AFGE, General Committee and Dept. of Health and Human Services,
Social Security Administration (Schuman, Arbitrator), Case No.
0-AR-1937 (Decided April 30, 1991)
7122(a)
ARBITRATION EXCEPTION
The Arbitrator sustained a grievance relating to the implementation
by the SSA Regional Office of a travel policy established by the HHS.
The HHS policy changed the area beyond which employees could be
reimbursed for travel from their homes or duty stations from a 30-mile
radius to a 50-mile radius. The Arbitrator found that the issuance and
implementation of the travel policy covering SSA employees violated the
agreement between SSA and the Union, and also violated the Statute. The
Arbitrator directed the Agency to (1) restore the status quo ante and
(2) reimburse unit employees who were denied travel pay under the new
travel policy, until such time as procedures or negotiated pertaining to
this matter were completed.
The Authority denied the exceptions. With regard to the Agency's
contention that there was no change in conditions of employment other
than a previously unwritten policy being reduced to writing, the
Authority found that the Agency's exceptions constitute nothing more
than mere disagreement with the Arbitrator's evaluation of the evidence
and an attempt to relitigate the merits of the case before the
Authority. Similarly, the Agency's other exceptions provided no basis
for finding the award deficient.
Case No. 0-AR-1937
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, GENERAL COMMITTEE
(Union)
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Henry Schuman 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 relating to the implementation
by the Social Security Administration (SSA), New York Regional Office
(Region) of a travel policy established by the U.S. Department of Health
and Human Services (HHS). The HHS policy changed the area beyond which
employees could be reimbursed for travel from their homes or duty
stations from a 30-mile radius to a 50-mile radius. The Arbitrator
found that the issuance and implementation of the travel policy covering
SSA employees violated the collective bargaining agreement between SSA
and the Union, and also violated the Statute. As his award, the
Arbitrator directed the Agency to (1) restore the status quo ante and
(2) reimburse unit employees who were denied travel pay under the new
travel policy, until such time as procedures or negotiations pertaining
to this matter were completed.
The Agency excepts to the award on the basis that (1) the Arbitrator
exceeded his authority by disregarding the agreement and Federal sector
law, and (2) there was no change in conditions of employment giving rise
to a bargaining obligation.
For the reasons stated below, we conclude that the Agency's
exceptions provide no basis for finding the award deficient.
Accordingly, we will deny the exceptions.
The Union is the exclusive representative of bargaining unit
employees in SSA, including employees in the Region. The level of
exclusive recognition exists at the national level of SSA. The
grievance in this case arose when the Region implemented the HHS travel
policy providing for travel reimbursement if employees traveled beyond a
50-mile radius from their homes or normal duty stations. Previously,
some employees had been partially reimbursed for travel based on a
30-mile radius.
The record indicates that at the time SSA implemented the policy in
the Region, SSA and the Union were negotiating at the national level
over the travel policy. Union's Brief to Arbitrator at 3. As explained
by the Agency, SSA and the Union were negotiating over the Agency's
desire to establish a uniform travel policy of a 50-mile radius for
reimbursement in all of SSA's regional offices. Agency's Brief to
Arbitrator at 3-4.
In addressing the grievance, the Arbitrator first responded to the
Agency's contention that the grievance was not timely and properly filed
because it was filed at the national, rather than the local level. The
Arbitrator found that the parties' agreement provided the option of
filing at either level. Consequently, he found that the grievance was
both timely and properly filed.
The Arbitrator then addressed the merits of the grievance. In the
absence of a stipulated issue, the Arbitrator framed the issue as
follows:
Whether the matter complained about is grievable and subject to
mandatory bargaining, upon the Union's request before a change can
be made and/or was the contract violated by unilaterally making
the change?
Award at 5.
The Arbitrator concluded that SSA violated the parties' agreement and
the Statute by attempting to change the practice regarding travel
reimbursement from a 30-mile radius to a 50-mile radius.
In reaching this conclusion, the Arbitrator found that the parties'
agreement "specifically requires the maintenance of benefits unless
negotiations occur." Award at 6. The Arbitrator noted that negotiations
were taking place on a nation-wide level, but that no negotiations had
occurred at the local level when the change in policy was implemented.
The Arbitrator rejected the Agency's position that it had no
obligation to bargain over the implementation of the 50-mile radius
policy because HHS had determined to use the larger area. The
Arbitrator found that "(t)here was never any administrative
determination to use the larger area, only some vague reasoning that
there was an unwritten rule that was now going to be implemented as a
written rule." Id. The Arbitrator noted that if SSA wanted to change
the travel policy, it could do so "but only after notifying the union
and following the ( ) procedure listed in 5 USC 71, as specifically
provided for in the agreement." Id. at 7. The Arbitrator found,
however, that the "attempt to change what had been the practice of 30
miles violates article 1 sub 2 and 4 of the contract and 5 USC 71." Id.
Finally, the Arbitrator rejected the Agency's argument that the Union
failed to timely invoke the negotiation process. The Arbitrator noted
that the Union invoked its rights at the appropriate time in initiating
arbitration over the instant grievance at the same time negotiations
over the travel policy were occurring at the national level.
Having found a violation of the parties' agreement and the Statute,
the Arbitrator sustained the grievance. As a remedy, he ordered the
following:
The remedy shall be to restore the status quo ante. The employees
who were denied travel pay for travel less than 50 miles but more
than 30 miles from their home or their normal duty station shall
be entitled to partial per diem within that radius. This shall
continue until the procedures and or the negotiations required by
5 USC 71 shall be completed.
Id. at 8.
A. The Agency's Exceptions
The Agency contends that the award is deficient because the
Arbitrator "exceeded his authority and violated law, rule and regulation
by disregarding the controlling language of the agreement and of
(F)ederal sector law regarding the implementation of local travel policy
in Region II." Exceptions at 1. The Agency also argues that there was
no change in conditions of employment requiring negotiations with the
Union. The Agency does not challenge the Arbitrator's finding that the
grievance was timely and properly filed.
With regard to its first exception, the Agency argues that the award
is "ultra vires" because it was ordered to "be applied to a higher level
agency which has no privity of agreement with the grieving union." Id.
The Agency argues that SSA has no authority to implement the award
because reimbursement for travel is subject to a determination of
appropriateness made by a "higher level agency official . . . ." Id. at
2. In this connection, the Agency cites two SSA regulations which,
according to the Agency, indicate that SSA recommended reimbursement for
travel exceeding 30 miles but that such recommendation was subordinate
to the actual policy of reimbursement for travel exceeding 50 miles
adopted by HHS' servicing fiscal office.
The Agency further argues that the servicing fiscal office had
determined that a 50-mile radius was the customary, reasonable, though
unwritten, official policy, although "some reimbursements had been
erroneously made." Id. at 5. Because, in the Agency's view, the effect
of the award is to "enforce contractual obligations upon the (HHS),
Region II, which is not party to the agreement(,)" the Arbitrator has
"essentially rewritten the agreement . . . ." Id. at 2, 5. The Agency
argues that the award, therefore, must be modified or set aside.
In its second exception, the Agency contends that there was no change
in conditions of employment requiring negotiations with the Union. The
Agency states that the only change that occurred was that a "previously
unwritten policy of the HHS fiscal office became a written policy . . .
." Id. at 6. The Agency contends that any past reimbursement for travel
less than a 50-mile radius was erroneous and contravened the existing
customary and reasonable policy. By finding that there was a violation
of the parties' agreement, the Agency asserts that the Arbitrator
substituted his judgment for that of the HHS official responsible for
determining the proper radius for travel reimbursement. The Agency
further argues that the award impermissibly attempts to make HHS a party
to the agreement.
B. The Union's Opposition
The Union maintains that the Agency's exceptions constitute an
attempt to relitigate the merits of the case before the Authority and
that they merely express disagreement with the Arbitrator's award. In
this regard, the Union asserts that the Arbitrator "clearly found there
was a change in terms and conditions of employment and so ordered an
appropriate remedy." Opposition at 1.
We conclude that the exceptions provide no basis for finding the
award deficient.
With regard to the Agency's contention that there was no change in
conditions of employment other than a previously unwritten policy being
reduced to writing, we find that the Agency's exception constitutes
nothing more than disagreement with the Arbitrator's evaluation of the
evidence and an attempt to relitigate the merits of the case before the
Authority. Such an exception provides no basis for finding an award
deficient. See, for example, U.S. Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees
Metal Trades Council, 39 FLRA 1103 (1991).
Contrary to the Agency's assertion that no change occurred, the
Arbitrator found that there was a change in practice that violated both
the parties' agreement and the Statute. In this connection, the
Arbitrator found that no administrative determination had been made to
use a radius larger than 30 miles for reimbursement purposes. Instead,
he found that a practice existed in the Region of providing partial
reimbursement for travel in excess of 30 miles, that the parties'
agreement required the maintenance of benefits unless negotiations
occurred, and that no negotiations had occurred at the local level. The
Arbitrator did not substitute his judgment for that of the Agency in
determining the proper radius for travel reimbursement, as argued. In
fact, the Agency concedes that some employees had been reimbursed at the
30-mile level, although it argues that such reimbursements were
improper. Additionally, the Agency acknowledges that "the local travel
reimbursement policy varied greatly among the regions of the (HHS)."
Exceptions at 2. Consequently, the Agency's assertion that no change
occurred lacks merit.
Similarly, the Agency's other exception provides no basis for finding
the award deficient. The Agency argues that SSA cannot implement the
award because reimbursement for travel is subject to a determination of
appropriateness that is made by the HHS servicing fiscal office. In
this regard, the Agency notes that the fiscal office had determined that
the customary and reasonable radius for reimbursement purposes was 50
miles. The Agency argues that the Arbitrator's award, ordering
restoration of the status quo ante, essentially enforces a contract
provision against HHS, which is not a party to the agreement.
Contrary to the Agency's assertion, we find that the Arbitrator did
not make HHS a party to the agreement between SSA and the Union; nor
did the Arbitrator expressly order HHS to take any action. The
Arbitrator's remedy was directed solely to SSA. In this regard, SSA was
the only named party in the Arbitrator's award and the Arbitrator found
that SSA violated the parties' agreement and the Statute. No such
finding was made with regard to HHS, which was not a named party.
The Agency's argument that SSA cannot implement the award also is
incorrect. Essentially, the Agency argues that SSA is precluded from
complying with the award because reimbursement at the 30-mile radius is
inconsistent with the HHS travel policy. As noted, the Agency argues
that the travel policy did not change the existing practice, but was
simply a written clarification of the existing practice in the Region.
We have previously rejected the Agency's contention that the travel
policy is simply a written affirmation of existing practice. Instead,
we have sustained the Arbitrator's finding that the HHS travel policy
changed the existing practice in the Region.
Having found that the HHS travel policy changed the existing
practice, the Agency may not now argue that the HHS travel policy
constitutes a binding regulation governing travel reimbursement for
bargaining unit employees in the Region. It is well established that
the duty to bargain under the Statute requires that, in the absence of a
clear and unmistakable waiver of bargaining rights, parties satisfy
their mutual obligation to bargain prior to implementing changes in
conditions of employment of bargaining unit employees. See National
Weather Service Employees Organization and U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Weather
Service, 37 FLRA 392, 395-96 (1990) (describing the circumstances under
which an agency is required to bargain over changes in conditions of
employment). Except for specific circumstances, an agency is required
to maintain the status quo ante during the bargaining process. Id. at
396. Examples of those circumstances are where a union has not timely
requested bargaining or timely requested the services of the Federal
Service Impasses Panel, or where implementation is consistent with the
necessary functioning of the agency. Id.
As the Arbitrator found, SSA and the Union were negotiating at the
national level concerning the travel policy. During this time, SSA
could not lawfully implement the policy unless circumstances were
present that permitted the change to be made prior to fulfillment of the
parties' bargaining obligations. The Agency has not argued or
established that any such circumstances were present here, and none are
apparent to us. Consequently, the HHS travel policy could not be
implemented or applied to the bargaining unit employees in the Region
until negotiations had been completed in accordance with the Statute.
The Arbitrator's award ordering restoration of the status quo ante and
reimbursement at the 30-mile radius "until the procedures and or the
negotiations required by 5 USC 71 shall be completed(,)" is thus fully
consistent with the parties' obligations under the Statute.
The Agency's exceptions are denied.
(*) SSA Administrative Instructions Manual System
SSA Instruction No. 14 provides as follows:
07.14.04 Eligibility Requirements
B. No overnight per diem (lodgings) will be allowed when the
traveler's residence or official station is within a reasonable
commuting distance of the assigned temporary duty station. The
minimum distance considered reasonable for commuting is 30 miles.
However, distances greater than 30 miles may be administratively
determined to be customary and reasonable by the HHS servicing
fiscal office. . . . (emphasis omitted)
SSA Instruction No. 15 provides as follows:
07.15.03 Definitions
Commuting Area: The established distance away from a duty
station or residence within which it is considered normal to
commute. The minimum commuting area is within a thirty mile
radius. The thirty mile radius applies unless the HHS Regional
Administrative Support Centers determine a wider area for their
definition of the local non-travel status area. In that case, the
larger area applies. . . .
40 FLRA 570
40 FLRA NO. 53
NTEU and Dept. of the Treasury, Customs Service, Washington, D.C.,
Case No. 0-NG-1874 (Decided April 30, 1991)
7105(a)(2)(E)
7106(a)(2)(A) and (B)
NEGOTIABILITY DETERMINATION
PERFORMANCE APPRAISAL SYSTEMS
DIRECT EMPLOYEES AND ASSIGN WORK
APPROPRIATE ARRANGEMENTS
5 U.S.C. 4302(b)
The Authority initially rejected the Agency's contention that
Proposal 1 was moot because it was superseded by a similar proposal
imposed on the parties by the interest arbitrator, noting that to the
extent that a dispute exists concerning the duty to bargain over the
proposal, that issue may be raised in other appropriate proceedings,
such as unfair labor practice procedures under the Statute.
The introductory paragraph of Proposal 1 requires the Agency to not
place Union representatives at a disadvantage in appraising performance
so as to ameliorate the adverse impact of the official time spent by
Union representatives on their responsibilities. The Authority
concluded that by requiring the Agency to modify its critical elements
and performance standards so as to accommodate an employee's use of
official time, the introductory paragraph directly interferes with the
Agency's right to direct employees and assign work. Section A, which
requires the Agency to ensure that union representatives are not
interfered with, restrained, or coerced in the exercise of the right to
serve as a Union representative through the application of performance
standards, was found to be negotiable.
Section B of Proposal 1 requires that the time spent on Union
representational activities not be considered as a negative factor in
evaluating an employee. Section C provides that the percentage of work
time spent on representational activities will be considered by the
Agency in determining an employee's performance standards. Section D
requires that frequent interruptions of an employee Union
representative's normal work be taken into account in the employee's
evaluation. Section E requires the Agency to make reasonable
accommodations in the appraisal process of Union representatives to
allow for their use of official time. The Authority concluded that
these sections of Proposal 1 directly interfere with the right to direct
employees and assign work. However, looking at the Proposal as a whole,
that is the Introductory Paragraph and Sections B through E, the
Authority concluded that it is negotiable as an appropriate arrangement.
Proposal 2 provides that in the application of standards to
individual employees, the Employer will take into account mitigating
factors such as availability of resources, lack of training, or
frequent, authorized interruptions of normal work duties. The Authority
concluded that the proposal directly interferes with the rights to
direct employees and assign work. Noting that 5 U.S.C. 4302( b)
requires the development of performance standards which will "to the
maximum extent feasible, permit the accurate evaluation of job
performance," the Authority concluded that the proposal is negotiable as
an appropriate arrangement.
Case No. 0-NG-1874
NATIONAL TREASURY EMPLOYEES UNION
(Union)
U.S. DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, WASHINGTON,
D.C.
(Agency)
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 addressing the Agency's performance
appraisal system. For the following reasons, we find that both
proposals are negotiable.
Section 10D: To ameliorate the adverse impact on a union
representative's ability to meet performance standards while
performing authorized representational activity as well as the
adverse impact on employees caused by a representative's inability
to perform representational activities without such consideration,
the employer will not place the representative at a disadvantage
in appraising performance due to this time spent performing
representational activities. A. Because service as a union
representative using official time is a statutorily protected
activity, management will ensure that Union representatives are
not interfered with, restrained, or coerced in the exercise of the
right through the application of performance standards to them. B.
Authorized time spent performing Union representational functions
will not be considered as a negative factor when evaluating any
critical or non-critical element. C. For example, if a union
representative has spent 30 percent of a work period on official
time, annual leave or LWOP performing union duties, this fact will
be considered in the application of elements and performance
standards to produce a fair and equitable result. D.
Additionally, if an employee is performing representational
functions that result in frequent interruptions of normal work,
this will also be taken into account when evaluating the employee
to produce a fair and reasonable result. E. Reasonable
accommodations will be made in the appraisal process of union
representatives to allow for their use of official time.
A. Positions of the Parties
1. The Agency
The Agency notes that after impasse was reached during negotiations
for a new collective bargaining agreement, the Federal Service Impasses
Panel directed the parties to submit remaining issues to a
mediator-arbitrator. On August 22, 1990, the mediator-arbitrator
ordered the parties to adopt certain proposals.
The Agency acknowledges that it asserted that Proposal 1 was
nonnegotiable during the parties' discussions with the interest
arbitrator on August 22, 1990. The Agency asserts, however, that the
proposal became an "irrelevancy and should be considered to have been
withdrawn by the Union" on that date because the interest arbitrator
ordered the inclusion of alternative language involving the same issue
in section 10H of the parties' agreement. Statement of Position at 5.
The Agency concludes that the Union's negotiability appeal as to
section 10D "is moot and therefore should be dismissed by the
Authority." Id.
The Agency also contends that "proposals which seek to guarantee that
employees will receive 'fair' and 'equitable' results on performance
appraisals" are nonnegotiable because they interfere with management's
rights to assign work and direct employees. Id. at 3. The Agency
further asserts that the proposal is nonnegotiable because "it would
subject the content of Agency performance standards to arbitral review."
Id.
2. The Union
The Union asserts that the interest arbitrator "specifically declined
to assert jurisdiction over the disputed language and informed the
(U)nion that it could pursue a negotiability appeal over the matter if
it were so inclined." Reply Brief at 3. The Union also asserts that it
is entitled to a negotiability determination regarding the proposal
because the Agency alleges that the proposal interferes with its rights
to direct employees and assign work under section 7106(a)(2)(A) and (B)
of the Statute.
The Union states that the introductory paragraph of the proposal
means that Union representatives "should not be placed in an unfavorable
situation or circumstance, such as an unacceptable performance
appraisal, as a result of the fact that the employee" engaged in
representational activities on official time. Id. at 4. The Union also
states that the proposal is "not intend(ed) . . . to protect a (U)nion
representative" from an unfavorable performance appraisal provided the
employee's appraisal "takes into consideration" the time spent on
representational activities. Id. (emphasis omitted). The Union asserts
that as the proposal is concerned only with the application of
performance standards and does not require management to change or
modify established standards, it is a negotiable procedure. The Union
contends, in this regard, that a Union representative's use of official
time "carves out an exception to the management rights clause of the
Statute." Id. at 6.
Finally, the Union contends that the proposal constitutes an
appropriate arrangement under section 7106(b)(3) of the Statute. The
Union argues that the impact on Union representatives of performance
appraisals which "disadvantage" them for their use of official time "is
substantial." Id. The Union also argues that the proposal "allows ample
managerial discretion as to how the performance expectations will be
adjusted so long as a 'fair and reasonable' result is achieved." Id. at
8. The Union states, in this regard, that the requirement in section
10D(E) that the Agency make "'reasonable accommodations'" in appraising
Union representatives who use official time is not intended to
"encompass job restructing or reassignment." Id. at 12.
B. Analysis and Conclusions
1. Preliminary Matter
We conclude that the Union's petition for review as to Proposal 1 is
properly before us.
Although the Agency asserts that Proposal 1 is moot because it was
superseded by a similar proposal imposed on the parties by the interest
arbitrator, the Agency also asserts that the proposal is inconsistent
with law because it interferes with the Agency's rights under section
7106(a)(2)(A) and (B) of the Statute. As the Agency asserts that
Proposal 1 is nonnegotiable, we conclude that the Union's petition meets
the requirements of section 7117 of the Statute and section 2424.1 of
the Authority's Rules and Regulations. See U.S. Department of Health
and Human Services, Social Security Administration, Northeastern Program
Service Center and American Federation of Government Employees, National
Council of Social Security Administration Payment Center Locals, Local
1760, 36 FLRA 466, 467-68 (1990) (although the agency asserted that a
proposal was inconsistent with the parties' master agreement, the
Authority resolved the negotiability appeal because the agency also
asserted that the proposal was inconsistent with law, rule or
regulation). To the extent that a dispute exists concerning the duty to
bargain over Section 10D, that issue may be raised in other appropriate
proceedings, such as unfair labor practice procedures under section 7118
of the Statute. See National Association of Government Employees, Local
R1-109 and U.S. Department of Veterans Affairs Medical Center,
Newington, Connecticut, 38 FLRA 928, 931 (1990).
2. Analytical Framework
Management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute encompass the authority to identify
critical elements and establish performance standards. For example,
National Federation of Federal Employees, Local 2096 and U.S.
Department of the Navy, Naval Facilities Engineering Command, Western
Division, 36 FLRA 834, 845 (1990) (NAFEC), and cases cited there.
Proposals which restrict an agency's authority to determine the content
of critical elements and performance standards directly interfere with
management's rights to direct employees and assign work. See id. at 845;
National Treasury Employees Union and U.S. Department of Health and
Human Services, Social Security Administration, Office of Hearings and
Appeals, Baltimore, Maryland, 39 FLRA 346, 349-50 (1991) (OHA).
On the other hand, proposals governing only the application of
performance standards and critical elements do not conflict with
management's rights to direct employees and to assign work. For
example, NAFEC, 36 FLRA at 846. Accordingly, the task in deciding the
negotiability of Proposal 1 "is primarily one of determining, based on
the record, whether (it) concern(s) substantive matters, such as the
content of performance standards and critical elements, or whether (it)
concern(s) the application of those standards and elements and other
nonsubstantive matters such as procedures." Id. (quoting Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384, 387 (1987), affirmed mem. sub nom. Patent Office
Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988)
(per curiam)).
We will first consider whether the separate sections of Proposal 1
directly interfere with management's rights. We will then consider the
Union's argument that the proposal constitutes an appropriate
arrangement.
3. The Introductory Paragraph
The introductory paragraph requires the Agency to "not place" Union
representatives "at a disadvantage in appraising performance" so as "to
ameliorate the adverse impact" of the official time spent by Union
representatives on their responsibilities. The Union states that the
intent of the paragraph is to prevent the Agency from placing an
employee representative "in an unfavorable situation or circumstance .
. . as a result of the fact that the employee used official time . . .
." Reply Brief at 4. Consistent with the Union's statement of intent,
we find that the introductory paragraph does not merely require
management to consider the time spent on Union activities in evaluating
employees' performance. Rather, the introductory paragraph would
require management to modify the levels of productivity and timeliness
established for employee Union representatives in light of the time
spent on Union activities.
We conclude that, by requiring the Agency to modify its critical
elements and performance standards so as to accommodate an employee's
use of official time, the introductory paragraph of Proposal 1 directly
interferes with the Agency's rights to direct employees and assign work
under section 7106(a)(2)(A) and (B) of the Statute. See OHA, 39 FLRA
346 at 356-57 (portion of provision requiring that time spent performing
Union representational functions not adversely affect an employee's
production or timeliness requirements found to directly interfere with
management's right to assign work and direct employees).
4. Section A
Section A requires the Agency to ensure that "union representatives
are not interfered with, restrained, or coerced" in the exercise of the
right to serve as a Union representative through the application of
performance standards. Nothing in the plain wording of this section
addresses the content of performance standards or elements and nothing
in the Union's submissions indicates that it intends the section to
apply in a manner which would affect such content. Moreover, the Agency
does not address section A in its statement of position. Accordingly,
as no basis for finding that section A either directly interferes with
the Agency's rights under section 7106 of the Statute or is otherwise
nonnegotiable is apparent to us, we conclude that this section is
negotiable.
We also note, however, the Union's assertions that Proposal 1 in its
entirety constitutes an appropriate arrangement. We will, therefore,
also address whether, assuming that this portion of the proposal
directly interferes with management's rights, it is nevertheless
negotiable as an appropriate arrangement.
5. Remaining Sections
Section B of the proposal requires that the time spent on Union
representational activities "not be considered as a negative factor" in
evaluating an employee. Section C provides that the percentage of work
time spent on representational activities "will be considered" by the
Agency in determining an employee's performance standards. Section D
requires that frequent interruptions of an employee Union
representative's normal work be "taken into account" in the employee's
evaluation. Section E requires the Agency to make "reasonable
accommodations" in the appraisal process of Union representatives "to
allow for their use of official time."
In our view, these sections, when read together, would require the
Agency to apply established elements and standards in a way that affects
the content of the standards. That is, unlike proposals which merely
require an agency to consider various matters in appraising performance,
these sections of Proposal 1 would require the Agency to modify the
content of standards and elements in light of a Union representative's
use of official time. As such, we conclude that sections B through E of
Proposal 1 directly interfere with management's rights to direct
employees and assign work. See, for example, OHA, 39 FLRA at 356-57;
NAFEC, 36 FLRA at 844-48.
6. Appropriate Arrangements
We have determined that the introductory paragraph and sections B
through E of Proposal 1 directly interfere with the Agency's rights to
direct employees and assign work. A proposal that directly interferes
with a management right under section 7106 of the Statute is,
nevertheless, negotiable if it constitutes an appropriate arrangement
under section 7106(b)(3) of the Statute. As discussed previously, the
record before us provides no basis on which to conclude that section A
of the proposal directly interferes with management's rights under
section 7106. Consistent with the Union's argument that Proposal 1, as
a whole, constitutes an appropriate arrangement, however, we will also
examine, for this part of our decision, whether section A, if it were
found to constitute such a direct interference, would constitute an
appropriate arrangement under section 7106(b)(3) of the Statute.
In determining whether a proposal is an appropriate arrangement, the
Authority first determines whether the proposal is intended to be an
"arrangement" for employees adversely affected by management's exercise
of a reserved right. This determination is made by examining "the
effects or foreseeable effects on employees which flow from the exercise
of those rights, and how those effects are adverse." National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24 (1986) (KANG). Proposals addressing "'purely
speculative or hypothetical concerns, or which are otherwise unrelated
to management's exercise of its reserved rights,'" will be excluded from
consideration as appropriate arrangements. West Point Elementary School
Teachers Association, NEA and United States Military Academy, West Point
Elementary School, 34 FLRA 1008, 1012 (1990) (quoting American
Federation of State, County and Municipal Employees, Local 3097 and
Department of Justice, 24 FLRA 453, 458 (1986)). If a proposal is
determined to be an "arrangement," the Authority determines whether the
proposed arrangement is "appropriate," or whether it is inappropriate
because it excessively interferes with management's rights. KANG, 21
FLRA at 31-33.
The Union contends that Proposal 1 is "negotiable as an appropriate
arrangement for employees under Section 7106(b)(3)" of the Statute.
Reply Brief at 8-9. In our view, it is foreseeable that an employee
Union representative's use of official time could adversely affect the
employee's ability to fulfill the requirements of his/her performance
standards, and, in turn, could result in a lower performance appraisal.
Proposal 1 seeks to ameliorate the impact on employees of time spent on
representational activities. Therefore, we conclude that Proposal 1
constitutes an arrangement, within the meaning of section 7106(b)(3) of
the Statute.
Having concluded that Proposal 1 is an arrangement, we now consider
whether it is "appropriate," within the meaning of section 7106(b)(3) of
the Statute. In KANG, 21 FLRA at 33, the Authority stated that it would
consider whether the negative impact on management's rights is
disproportionate to the benefits to be derived from the proposed
arrangement. Applying that standard, we must determine whether Proposal
1 excessively interferes with management's right to assign work and
direct employees.
In our view, the burden placed on the Agency and the Agency's
exercise of its management rights by Proposal 1 is minimal. The
proposal seeks to protect employees engaged in representational
activities against performance evaluations which fail to take into
consideration a limitation on their ability to meet the performance
standards for their position which results from use of authorized
official time, annual leave, or leave without pay. The proposal does
not seek to protect employees against the consequences of poor
performance, however. In this regard, the proposal would not affect or
inhibit the Agency's ability to assess and evaluate Union
representative's job performance and take personnel actions based on
that assessment and evaluation.
Moreover, it is not apparent to us, and the Agency does not assert,
that the Agency has an interest in evaluating performance without regard
to time authorized for representational activities. With respect to the
latter point, the proposal refers only to "authorized time," including
official time, annual leave, or leave without pay. The proposal would
not, therefore, enable an employee to evade or otherwise frustrate
application of performance standards and elements through the
unauthorized use of official time or leave.
Similarly, the proposal does not dictate or mandate that employee
Union representatives receive any particular performance rating. The
proposal only requires that the Agency evaluate job performance in light
of the amount of time authorized to be spent by employees on
representational activities. Provided the Agency does so, the Agency is
free to assign any performance rating to those employees.
In addition, the specific constraints imposed by the proposal do not
appear to be unreasonable or difficult to administer. The introductory
paragraph and section A require, respectively, only that the Agency not
place Union representatives at a disadvantage as a result of time spent
performing representational duties and ensure that those representatives
are not interfered with, restrained, or coerced in the exercise of their
rights through the application of performance standards. Consistent
with these principles, section E requires "reasonable accommodations,"
which, according to the Union, are not intended to encompass or require
job restructuring. Sections B, C, and D, when read together, provide
that the performance of representational activities, including the
amount of and frequency with which authorized time is used, will be
taken into account in appraisals so as to avoid any negative impact on
performance ratings resulting from the performance of representational
activities. We find nothing in these provisions which would
unreasonably burden the exercise of the Agency's rights.
On the other hand, by ensuring that employees engaged in
representational activities will not be penalized because of such
activity, Proposal 1 offers a significant benefit to such employees and
to all other employees. In particular, Union representatives may engage
in representational activities without fear that so doing will endanger
their performance evaluations. Moreover, under section A, Union
representatives would have a contractual guarantee that they may
exercise their protected statutory rights without interference,
restraint, or coercion. These effects should also positively impact
upon all other employees, who benefit from such representation.
Moreover, we note that section 7101 of the Statute provides that
employees' rights to organize, bargain collectively, and participate in
labor organizations both safeguards the public interest and contributes
to the effective conduct of public business. Therefore, Proposal 1,
which offers protection to employees who use official time, would
benefit the Agency as a whole.
On balance, we find that the benefits afforded employees by Proposal
1 outweigh the effect on management's rights to direct employees and
assign work. Accordingly, we conclude that Proposal 1 does not
excessively interfere with management's rights and constitutes an
appropriate arrangement negotiable under section 7106(b)(3) of the
Statute.
Finally, we reject the Agency's contention that the proposal is
nonnegotiable on the basis that its inclusion in a collective bargaining
agreement would subject the content of performance standards to arbitral
review. The Agency's assertion that an arbitrator's judgment may be
substituted for its own is not a basis for finding a proposal to be
nonnegotiable. See OHA, 39 FLRA at 350.
In sum, we conclude that although the introductory paragraph and
sections B through E of Proposal 1 directly interfere with the Agency's
rights to direct employees and assign work, they do not excessively
interfere with the exercise of these rights. Moreover, although we find
that section A does not directly interfere with the exercise of
management's rights under section 7106 of the Statute, we conclude that
even if that section were found to so interfere, it would not do so to
an excessive degree. Accordingly, Proposal 1 is negotiable.
Section 10E- In the application of standards to individual
employees, the Employer will take into account mitigating factors
such as availability of resources, lack of training, or frequent,
authorized interruptions of normal work duties.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 2 would restrict management's
authority to establish performance standards. The Agency contends that
the proposal would insulate employees from consequences attributed to
the factors set forth in the proposal. The Agency concludes that the
proposal is outside the scope of bargaining because it interferes with
management's rights under section 7106(a)(2)(A) and (B) of the Statute
to assign work and direct employees.
The Agency asserts that the proposal is not an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute
because it does not concern employees affected by the exercise of
management rights and it excessively interferes with management's rights
to assign work and direct employees under section 7106(a)(2)(A) and (B)
of the Statute.
2. The Union
The Union asserts that the proposal "does not violate management's
rights to assign and direct since . . . it does not preclude the
development of standards" which account for "the mitigating factors."
Reply Brief at 13. The Union notes that the "effect of the proposal
would be to modify the level of work required of an employee to achieve
a given performance rating." Id. The Union argues, however, that the
proposal "does not insulate employees from accountability for their
performance." Id.
The Union also asserts that the proposal constitutes a negotiable
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. The Union contends that performance ratings have an impact on
employees because they "are used as the basis to award employees,
promote, train and remove or downgrade them for unacceptable
performance" and they are the basis for determining "RIF retention
standing . . . ." Id. at 14. The Union argues that any interference
with management rights "is minimal" because the mitigating circumstances
outlined in the proposal "are completely outside the control of the
employee." Id.
B. Analysis and Conclusions
1. Direct Interference With Management's Rights
As noted previously, proposals restricting an agency's right to
determine the content of performance standards and critical elements
directly interfere with management's rights to direct employees and to
assign work under section 7106(a)(2)(A) and (B) of the Statute. See,
for example, American Federation of Government Employees, AFL-CIO,
Department of Education Council of AFGE Locals and Department of
Education, 34 FLRA 1114, 1115-18 (1990) (Proposal 1). Proposals
concerning the application of performance standards, however, do not
conflict with management's rights to direct employees and assign work.
See, for example, American Federation of Government Employees, Local
3172 and U.S. Department of Health and Human Services, Social Security
Administration, Vallejo District Office, 35 FLRA 1276, 1281 (1990).
Proposal 2 requires the Agency to "take into account" such mitigating
factors as the availability of resources, lack of training, or frequent,
authorized interruptions of normal work duties, in determining an
employee's performance evaluation. The Union states that the "effect of
the proposal would be to modify the level of work required of" employee
Union representatives. Reply Brief at 13.
In National Treasury Employees Union and Department of Health and
Human Services, Social Security Administration, Office of Hearings and
Appeals, 34 FLRA 1000, 1006 (1990), we held that the "phrase 'to take
into account' . . . connotes that management's decision will be based,
at least in part, on the specified factors." Consistent with the Union's
statement of intent, Proposal 2 also would require the Agency to change
or adjust its performance expectations in light of the factors specified
in the proposal. That is, the proposal's requirement that the Agency
"take into account mitigating factors" encompasses more than
consideration of those factors. The proposal also would require the
Agency, in applying performance standards, to modify its performance
expectations in light of those factors. Consequently, we conclude that
Proposal 2 directly interferes with the Agency's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute.
We reject, however, the Agency's assertion that "(t)here are a myriad
of factual situations involving possible 'mitigating factors,' which
could arise under proposal 10E, which would . . . interfere with the
exercise of other reserved management rights, e.g., to determine the
budget and allocate funds for Agency facilities, to discipline etc."
Statement of Position at 8. To the extent that the Agency intends this
statement to constitute an assertion that the proposal directly
interferes with its rights to determine its budget and to discipline
employees, the Agency makes no attempt to support its assertions with
evidence or argument. Moreover, consistent with the plain wording of
Proposal 2, we find no basis on which to conclude that the proposal
directly interferes with these rights. Instead, the proposal is
clearly, and solely, concerned with the performance appraisal process.
2. Appropriate Arrangement
As a threshold matter, we find that the proposal establishes an
arrangement for employees adversely affected by the exercise of
management's rights. The Union contends that the intent of the proposal
is to ensure that employees' performance evaluations are not affected by
"mitigating factors" which are "completely outside the control of the
employee." Reply Brief at 14. In our view, it is foreseeable that
employees could be adversely affected by performance evaluations which
are based, even in part, on performance which is affected by matters
over which the employees have no control. Moreover, the Agency does not
dispute that the mitigating factors enumerated in the proposal are
beyond an employee's control. We conclude, therefore, that Proposal 2
is an arrangement, within the meaning of section 7106( b)(3) of the
Statute.
Having concluded that Proposal 2 is an arrangement, we now consider
whether it is appropriate within the meaning of section 7106(b)(3) of
the Statute. See NAFEC Western Division, 36 FLRA at 841. In KANG, 21
FLRA at 33, the Authority stated that it would consider whether the
negative impact on management's rights is disproportionate to the
benefits to be derived from the proposed arrangement. Applying that
standard, we must determine whether Proposal 2 excessively interferes
with management's right to assign work and direct employees.
We find that the burden placed on the exercise of the Agency's rights
to direct employees and assign work by Proposal 2 is minimal. The
proposal applies only to matters over which an employee has no control
and only to the extent that the mitigating factors are involved in an
employee's performance. Management has, and retains, the prerogative to
ensure that resources are available to employees, that adequate training
is provided to them, and that employees are not confronted with
authorized interruptions of their work duties. Moreover, the proposal
does not dictate to the Agency what its performance standards, critical
elements, or performance ratings should be. Instead, the proposal only
requires the Agency to "take into account" the specified factors when
evaluating employees against their performance standards. If the Agency
does so, the Agency is free to reach any conclusion which is otherwise
justified in evaluating an employee.
Although the burden imposed by Proposal 2 on the Agency is minimal,
the proposal offers significant benefits to employees. By requiring
that Agency management "take into account" mitigating factors such as
the availability of resources, training, and authorized interruptions of
work over which the employee has no control, Proposal 2 helps to ensure
that employees' evaluations will be based, as nearly as possible, on
those elements of an employee's performance over which the employee has
control. Therefore, the proposal provides both employees and the Agency
with some assurance that performance evaluations accurately reflect
actual performance. We note, in this regard, that 5 U.S.C. Section
4302(b) requires the development of performance standards which will "to
the maximum extent feasible, permit the accurate evaluation of job
performance . . . ."
On balance, we find that the benefits afforded employees by Proposal
2 outweigh the effect on management's rights to direct employees and
assign work. Accordingly, we conclude that Proposal 2 does not
excessively interfere with management's rights and is an appropriate
arrangement negotiable under section 7106(b)(3) of the Statute.
The Agency shall, upon request, or as otherwise agreed to by parties,
bargain over Proposals 1 and 2. /*/
(*) In finding these proposals to be negotiable, we make no judgment
as to their merits.
40 FLRA 558
40 FLRA NO. 52
Dept. of the Army, Army Soldier Support Center, Fort Benjamin
Harrison, Indiana and AFGE, Local 1141, Case No. 5-CA-90465 (Decided
April 30, 1991)
7116(a)(1)
UNFAIR LABOR PRACTICE
INFORMATIONAL PICKETING
The Authority adopted the Judge's recommendation that the Respondent
violated section 7116(a)(1) by refusing to allow employees to engage in
informational picketing within the confines of Fort Benjamin Harrison.
The Authority specifically rejected the Charging Party's exception
contending that the Notice should be signed by the Secretary of the Army
and posted Army-wide, noting that the complaint was filed against the
Commander of the base, the highest level of agency management at the
installation, and the record reflects that the violation occurred at the
base only.
Case No. 5-CA-90465
DEPARTMENT OF THE ARMY U.S. ARMY SOLDIER SUPPORT CENTER FORT BENJAMIN
HARRISON, INDIANA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1141, AFL-CIO
(Charging Party/Union)
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) of the Federal Service Labor-Management Relations Statute
(the Statute). The complaint alleged that the Respondent violated
section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute) by refusing to allow employees to engage in
informational picketing within the confines of Fort Benjamin Harrison.
The Charging Party and the Respondent filed exceptions to the Judge's
decision. The Respondent filed an opposition to the Charging Party'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 and the entire record, we adopt the Judge's findings,
conclusions, and recommended 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 Department of the Army, U.S. Army Soldier Support Center,
Fort Benjamin Harrison, Indianapolis, shall:
1. Cease and desist from:
(a) Interfering with the rights of its employees to engage in
activity protected by the Federal Service Labor-Management Relations
Statute by refusing to allow the American Federation of Government
Employees, Local 1141, AFL-CIO, the exclusive representative of its
employees, to conduct informational picketing at Coleman Circle related
to their terms and conditions of employment.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them 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) Post at Army facilities at Fort Benjamin Harrison, 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
Commander of Fort Benjamin Harrison, and shall be posted in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. Reasonable steps shall be taken to ensure
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, Chicago 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 interfere with the rights of our employees to engage in
activity protected by the Federal Service Labor-Management Relations
Statute by refusing to allow the American Federation of Government
Employees, Local 1141, AFL-CIO, the exclusive representative of our
employees, to conduct informational picketing at Coleman Circle related
to their terms and conditions of employment.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them 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 its provisions, they may communicate directly with the Regional
Director, Chicago Regional Office, Federal Labor Relations Authority,
whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL.
60604 and whose telephone number is: (312) 353-6306.
Case No. 5-CA-90465
DEPARTMENT OF THE ARMY, U.S. ARMY SOLDIER SUPPORT CENTER, FORT
BENJAMIN HARRISON, INDIANA
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1411, AFL-CIO
Charging Party
Sharon A. Bauer, Esquire, For the General Counsel
Lieutenant Colonel Terry E. Thomason, Esquire, For the Respondent
Before: JESSE ETELSON, Administrative Law Judge
The U.S. Army Soldier Support Center at Fort Benjamin Harrison,
Indiana (hereafter "the Army") refused to permit the union representing
its employees to conduct informational picketing outside the main office
building at the fort to protest certain employment practices. This case
presents the issue of whether the requested picketing was a protected
activity under section 7102 of the Federal Service Labor-Management
Relations Statute (the Statute), and whether, therefore, the Army
violated section 7116(a)(1) of the Statute, by interfering with its
employees' right to engage in a protected activity, when it refused to
permit such picketing.
The case was heard in Indianapolis, Indiana, on November 29, 1989.
Based on the record, the briefs, and my evaluation of the evidence, I
conclude that a violation occurred.
The Charging Party (the Union) represents employees in three
bargaining units at Fort Benjamin Harrison (Harrison). The largest unit
includes approximately 2,200 employees of the U.S. Army Finance and
Accounting Center (USAFAC). USAFAC occupies a large office building
called Building 1.
On May 19, 1989, after giving advance notice to the Chief of Staff of
USAFAC, the Union wrote a request to Major General Woods, the Commander
of U.S. Army Soldier Support Center, at Harrison, for permission to
picket USAFAC at Coleman Circle, located outside of Building 1. General
Woods was the individual responsible for the administration of Harrison.
Harrison is an open facility, with no restrictions on the public's
driving through its streets. Coleman Circle is a non-work area located
between Building 1 and the street closest to that building.
The Union's request specified that permission was sought for the week
of July 17-21, during the hours of 6:30-8:00 a.m., 11:00 a.m.-1:00 p.m.,
and 3:30-5:00 p.m. The Union claimed the right to engage in
informational picketing under the Statute, provided that it did not
disrupt the activities of the agency. Previously, the Union had
informed William Shultz, the labor relations officer for Harrison, that
its purpose in picketing was to protest changes in conditions of
employment that USAFAC (allegedly) had implemented without bargaining.
Shultz ws consulted in the Army's process of responding to the Union's
request.
The president of the Union is an employee at Harrison, and there is
no evidence that any Union members are nonemployees. I infer that it
was understood that the request contemplated picketing only by
employees, presumably off duty. At least, no claim has been made that
the Army acted under any other assumption, nor did it distinguish in its
response between employee and nonemployee picketers.
On June 1, the Adjutant General, for the Commander, denied the
Union's request. He provided the following rationale:
In accordance with Department of the Army policy, it has been
determined that informational picketing outside the installation
will not result in a traffic hazard or endanger the safety of the
employees.
In so responding, the Adjutant General relied on an Army
"Clarification of . . . Policy" which stated in relevant part:
1. It is the policy of the Department of the Army that no form
of picketing is permitted on military reservations. This includes
informational picketing conducted by civilian employees and their
unions, even though these employees are in an off-duty status.
2. It is acknowledged that there may be rare instances where
certain informational picketing could be permitted on a military
reservation if the Commander concludes that other factors (e.g.,
safety of employees, impact on community relations, traffic
hazard, etc.) militate against picketing an installation gate or
elsewhere outside the post. Such situations are considered to be
the rare exception rather than the rule.
The Union conducted informational picketing outside two of Harrison's
entrances, after filing the original unfair labor practice charge that
initiated this proceeding. /1/
The right to publicize a union's position with respect to matters
affecting employees' conditions of employment is protected by section
7102. This right includes handbilling on quasi-public, non-work areas
of a military base, absent a substantiated claim that the handbilling
would disrupt the agency's mission. Department of the Air Force, 3rd
Combat Support Group, Clark Air Base, Republic of the Philippines, 29
FLRA 1044, 1048-50 (1987) (3rd Combat Support Group). The Army does not
assert that, for the purposes of this case, a distinction should be
drawn between handbilling and informational picketing, and I see no
basis for affording informational picketing any less protection under
the Statute. See Veterans Administration, Washington, D.C., and
Veterans Administration Medical and Regional Office Center, Fargo, North
Dakota, Case No. 7-CA-40435 (1985), ALJ Decision Reports, No. 50 (Aug.
2, 1985).
In defense of the prohibition that occurred here, and of the Army's
policy of restricting picketing to special and exceptional situations,
the Army urges the Authority to adopt the balancing test adopted by the
National Labor Relations Board in Jean Country, 291 NLRB No. 4, 129 LRRM
1201 (1988). There, the Board decided that in all "access" cases it
would regard the availability of "reasonably effective alternative means
as especially significant in the balancing process." Unfortunately for
the Army, however, the instant case is not what the Board would regard
as an "access" case, nor would it apply that balancing test to
situations like this one. This was made clear in NLRB v. Ohio Masonic
Home, 892 F.2d 1153 (6th Cir. 1989), enforcing 290 NLRB No. 122 (1988),
where the court held that the Board had properly applied its traditional
rules concerning employee activities on company property rather than the
Jean Country rules, because Ohio Masonic Home concerned the right of
employees to picket on the property of their own employer and Jean
Country involved access to someone else's property. /2/
Stated otherwise, the Board uses a more lenient standard for
affording employees the right to conduct otherwise protected activities
on their own employer's property than for subjecting another's property
-- typically the owner of a shopping center in which the employer's
store is located -- to access by nonemployees of the owner. Thus, in
Ohio Masonic Home, the Board applied the standards it had established in
Tri-County Medical Center, 222 NLRB 1089 (1976) for determining the
validity of a an employer's rule that restricted access to its property
by off-duty employees. The Board stated that it would find such a rule
valid only if it:
(1) limits access solely with respect to the interior of the plant
and other working areas; (2) is clearly disseminated to all
employees; and (3) applies to off-duty employees seeking access
to the plant for any purpose and not just to those employees
engaging in union activities. Finally, except where justified by
business reasons, a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas will be
found invalid.
No detailed analysis is necessary to conclude that the restriction
the Army applied here would not pass muster under the standards that the
National Labor Relations Board would most likely apply to a situation
such as this -- the Tri-County Medical Center standards. The Army still
urges, however, that the Jean Country balancing test, with its emphasis
on alternative means, is most appropriate because, as stated in a letter
supplementing its brief, "the unique circumstances present on military
installations" warrants such an accomodation. But the Authority
rejected a similar request for special status for military bases in 3rd
Combat Support Group, supra, at 1050, a case which controls here.
To review, one essential teaching of 3rd Combat Support Group is that
employees covered by the Statute, including those employed on military
bases, have a right to conduct union activities concerning unit
employees' conditons of employment in appropriate locations within the
Government property of their employing agency or activity, subject only
to restrictions necessary to avoid disruption of the agency's mission.
The requested location here was appropriate. The Army's restriction was
not supported by any such showing of necessity and was therefore
unlawful. I conclude that the Army violated section 7116(a)( 1) by
interfering with its employees' protected right to conduct informational
picketing within Fort Benjamin Harrison. 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 Department of the Army, U.S. Army Soldier Support Center,
Fort Benjamin Harrison, Indianapolis, Indiana, shall:
1. Cease and desist from:
(a) Interfering with the rights of its employees to engage in
activity protected by the Federal Service Labor-Management Relations
Statute by refusing to allow the American Federation of Government
Employees, Local 1411, AFL-CIO, the exclusive representative of its
employees, to conduct informational picketing at Coleman Circle related
to their terms and conditions of employment.
(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 Army facilities at Fort Benjamin Harrison 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
Commander of Fort Benjamin Harrison 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.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, 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, D.C., August 31, 1990.
/s/ JESSE ETELSON
JESSE ETELSON
Administrative Law Judge
(*) We specifically reject the Charging Party's exception contending
that the Notice should be signed by the Secretary of the Army and posted
Army-wide. The unfair labor practice complaint was filed against the
Commander, Fort Benjamin Harrison, the highest level of agency
management at the installation, and the record reflects that the
violation occurred at Fort Benjamin Harrison only. The record also
reflects that the Commander exercised independent authority and
discretion in refusing to allow employees to engage in informational
picketing within the confines of the military installation. Thus,
consistent with the Authority's findings in similar situations, we find
that requiring the Notice to be signed by the Commander of Fort Benjamin
Harrison and posted at the Army facilities at Fort Benjamin Harrison
will best effectuate the purposes and policies of the Statute. See,
U.S. Department of the Air Force, Space Systems Divsion, Los Angeles Air
Force Base, California, 38 FLRA 1485, 1487-88 (1991). See also, for
example, Department of the Air Force, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 35 FLRA 1230, 1231-32 (1990);
United States Department of Transportation, Federal Aviation
Administration, 19 FLRA 732, 736-37 (1985).
(1) Over the objection of Counsel for the General Counsel, I admitted
evidence concerning the adequacy of alternative means available to the
Union, including its picketing at the entrances, to publicize its labor
dispute. With the benefit of the briefs on the merits and further
reflection (as explained under "Discussion and Conclusions," below) I
have concluded that alternative means have no bearing on the case.
Further, the Union adequately explained to the Army the purpose of the
picketing, and it is unnecessary to pursue the Union's additional
explanation of its purpose through testimony at the hearing.
(2) I commend counsel for the Army for his professional integrity in
calling this case to my attention. Nor did his client suffer, as I was
aware of the case anyway.
WE WILL NOT interfer with the rights of our employees to engage in
activity protected by the Federal Service Labor-Management Relations
Statute by refusing to allow the American Federation of Government
Employees, Local 1141, AFL-CIO, the exclusive representative of its
employees, to conduct informational picketing at Coleman Circle related
to their terms and conditions of employment.
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, Region V,
whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL
60604, and whose telephone number is: (312) 353-6303.
40 FLRA 521
40 FLRA NO. 51
AFGE, National Border Patrol Council and National Immigration and
Naturalization Service Council and Dept. of Justice, Immigration and
Naturalization Service, Case No. 0-NG-1781 (Decided April 30, 1991)
7105(a)(2)(E)
7106(a)(2)(A)
7106(a)(2)(B)
7106(a)(1)
7106(b)(3)
NEGOTIABILITY DETERMINATION
PROCEDURAL ISSUES
TIMELINESS OF PETITION FOLLOWING FSIP DISMISSAL
APPROPRIATE ARRANGEMENTS TEST
PROPOSALS IDENTICAL TO AGENCY POLICY
FIREARMS POLICY
RIGHT TO REMOVE AND DISCIPLINE
RIGHT TO ASSIGN EMPLOYEES
RIGHT TO ASSIGN WORK
INTERNAL SECURITY PRACTICES
APPROPRIATE ARRANGEMENTS
"WEINGARTEN" REQUIREMENTS
The Authority preliminarily ruled on three procedural issues raised
by the Agency. The Authority determined that a second petition was
properly before it. The first petition, which the Union sought to
withdraw, was untimely filed because it was not filed within 15 days of
the Agency's unsolicited allegation of nonnegotiability made before the
FSIP. In so concluding, the Authority rejected the Agency's assertion
that the 15-day time period was tolled by the issuance of the Panel's
dismissal of the Unions' request for assistance. The Unions' second
petition was timely filed.
The second preliminary ruling was a rejection of the Agency's
requests that the Authority reconsider its decision in KANG addressing
the standard for determining whether a proposal constitutes an
appropriate arrangement. Accordingly, based on KANG, the Authority
rejected the Agency's assertion that any proposal found to interfere
with a reserved right is nonnegotiable even if the proposal is intended
as an appropriate arrangement. Thirdly, the Authority concluded that
the entire wording of the proposals submitted by the Union is subject to
review, whether the proposals include language taken from the Agency's
revised firearms policy or whether the proposals include additions or
deletions to the policy. The fact that wording of the proposals is, in
part, identical to the language of the Agency's policy or regulations
does not, by itself, make the proposals nonnegotiable.
The proposals at issue were offered by the Unions in response to a
revised firearms policy proposed by the Agency. Proposal 1 concerns the
Agency's withdrawal of authority granted to employees to carry firearms.
The first sentence, which provided that the authority to carry a
firearm may be withdrawn by the Agency when the action is in the best
interest of the Service and/or employee, was found to interfere with
management's right to assign employees. The second sentence, which
requires the Agency to serve a written notice of the withdrawal of the
authority to carry firearms of the affected employee, was found to be
negotiable. The third sentence, which would require management to make
a reasonable effort to find work not requiring the use of a firearm for
an employee whose authority to carry a firearm has been withdrawn or
restricted, was found to interfere with the right to assign work, but to
be a negotiable appropriate arrangement.
The first four sentences of Proposal 2, would limit the Agency's
discretion to determine whether employees who are required or designated
to carry firearms should (1) qualify quarterly, (2) qualify on a course
designated by the Agency, (3) demonstrate a specific level of
proficiency determined by the Agency, and (4) have their authority to
carry firearms withdrawn if proficiency is not demonstrated. The
Authority determined that these sentences directly interfere with the
right to assign work. The last sentence of the proposal, which contains
the same wording as the last sentence of Proposal 1, was found to be a
negotiable appropriate arrangement.
Proposals 3 and 4, which define the firearms which the Agency will
authorize for use by its employees during both on-duty and off-duty
assignments, were found to be nonnegotiable because they interfere with
management's right to determine its internal security practices, and to
not be negotiable appropriate arrangements.
Proposal 5 provides that all employees involved in a shooting
incident are entitled to Union representation and they will have up to
48 hours in which to consult with a Union representative. The Authority
concluded that the proposal does not directly interfere with the
Agency's rights under 7106 and, also, if it does so interfere, that
interference is so slight that the benefits afforded to unit employees
outweigh that interference, thereby constituting an appropriate
arrangement.
Proposal 6 provides that employees currently carrying certain kinds
of privately-owned firearms will continue to carry them until they are
replaced by Agency-issued firearms. The Authority concluded that the
proposal directly interferes with the Agency's right to determine its
internal security practices. Further, as the Union has failed to
demonstrate that employees would be adversely affected by the Agency's
decision to no longer authorize the use of privately-owned single-action
semi-automatic pistols, the Authority concluded that the proposal does
not constitute an appropriate arrangement.
Case No. 0-NG-1781
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL BORDER PATROL
COUNCIL AND NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL
(Union)
U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on a negotiability appeal filed on
behalf of the Unions by the President of the National Border Patrol
Council under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeal concerns
six proposals offered by the Unions in response to a revised firearms
policy proposed by the Agency. /1/
For the following reasons, we conclude that the first sentence of
Proposal 1, which concerns the Agency's withdrawal of authority granted
to employees to carry firearms, is nonnegotiable because it directly
interferes with the Agency's right to assign employees under section
7106(a)(2)(A) of the Statute. The second sentence of Proposal 1, which
requires that the Agency serve a written notice of the withdrawal of the
authority to carry a firearm on the affected employee, is negotiable.
The last sentence of Proposal 1, which addresses the assignment of
duties to employees whose authorization to carry a firearm has been
withdrawn, is a negotiable appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.
The first four sentences of Proposal 2, which concern necessary
qualifications for employees to carry firearms, are nonnegotiable. The
last sentence of Proposal 2, which addresses the assignment of duties to
employees whose authorization to carry a firearm has been withdrawn, is
a negotiable appropriate arrangement within the meaning of section
7106(b)(3) of the Statute. Proposals 3 and 4, which define the firearms
which the Agency will authorize for use by its employees during both
on-duty and off-duty assignments, are nonnegotiable because they
excessively interfere with the Agency's right to determine its internal
security practices under section 7106(a)(1) of the Statute.
Proposal 5, which provides that all employees involved in a shooting
incident are entitled to Union representation and that they will have up
to 48 hours in which to consult with a Union representative, is
negotiable. Proposal 6, which provides that employees currently
carrying certain kinds of privately-owned firearms will continue to be
authorized to carry them until they are replaced by Agency-issued
firearms, is nonnegotiable because it excessively interferes with the
Agency's right to determine its internal security practices under
section 7106(a)(1) of the Statute.
A. The Unions' Second Petition is Properly Before the Authority
The Unions offered proposals in response to the Agency's proposed
changes in its Administrative Manual Chapter 4210, which sets forth the
Agency's firearms policy. The Unions sought the assistance of the
Federal Service Impasses Panel (the Panel). On November 9, 1989, the
Agency asserted to the Panel that the Unions' proposals were
nonnegotiable. The Agency's letter also stated that the Panel's
"dismissal of the request for consideration of the alleged impasse . .
. will start the (15) day period . . . for appeal of the (A)gency's
allegation of nonnegotiability." Unnumbered Attachment at 1 to the
Unions' January 30, 1989 Petition for Review. On December 12, 1989, the
Panel dismissed the Union's request for consideration.
On December 23, 1989, the Unions filed the first petition for review
in this case, which was docketed as 0-NG-1781. The Unions noted the
Agency's position that dismissal of the Unions' request by the Panel
would trigger the time limit for filing a petition for review under
7117(c)(2) of the Statute. The Unions asserted that they did not agree
with the Agency's position, but that they were filing the Petition for
Review with the Authority "as a protective measure." December 23, 1989,
Petition for Review at 1.
On December 23, 1989, the Unions also filed a request for a statement
of nonnegotiability with the Agency. On January 12, 1990, the Agency
submitted a copy of its November 9, 1989 letter to the Panel to the
Unions as its statement of nonnegotiability. In a cover letter, the
Agency reiterated its position that the Panel's dismissal of the Unions'
request to the Panel triggered the 15-day appeal period.
On January 30, 1990, the Unions filed a second petition for review in
response to the Agency's January 12 declaration of nonnegotiability.
That petition was originally docketed as 0-NG-1790 but, on February 27,
1990, the Authority issued an Errata stating that the Unions' second
petition should have been included in the file for case number
0-NG-1781.
The Agency contends that only the Unions' first petition for review
should be considered by the Authority. The Agency asserts that the
Unions had "15 days in which to file an appeal from the date of the
alleged declaration of nonnegotiability" and that "this time limit is
necessarily tolled by the issuance of a dismissal by the (Panel.)"
Agency's February 9, 1990, Statement of Position at 2. The Agency
asserts that as the Unions in this case were "already timely notified of
the (Agency's) position" on negotiability, the Unions "no longer needed
the tactical protection of . . . a separate, pro forma request for a
formal, written, declaration of nonnegotiability in order to file an
appeal." Id. at 3, 4. The Agency concludes that the Unions' second
petition "should be ignored, or at the most, should be consolidated with
the earlier filing and considered as a supplemental statement." Id. at
4.
The Unions "urge the Authority to dismiss (their) earlier Request .
. . on procedural grounds, leaving the resolution of the negotiability
issues to" the second petition for review. February 27, 1990, Reply
Brief at 2.
We conclude that the Unions' second petition for review, dated
January 30, 1990, was timely filed and that it is properly before the
Authority.
Section 7117(c) of the Statute provides that, when an agency "alleges
that the duty to bargain in good faith does not extend to any matter," a
union may appeal that determination within 15 days. A union has two
options when it receives an unsolicited allegation of nonnegotiability,
including one made by an agency during Panel proceedings. The union's
first option is to respond to the unsolicited allegation of
nonnegotiability and timely file a petition for review with the
Authority pursuant to section 2424.3 of the Authority's Rules and
Regulations. The union's second option is to ignore the unsolicited
allegation of nonnegotiability made before the Panel, make a written
request for a written allegation of nonnegotiability from the agency,
and timely file its petition for review within the time limits
established in section 2424.3. See National Federation of Federal
Employees, Local 422 and U.S. Department of the Interior, Bureau of
Indian Affairs, Colorado River Agency, 34 FLRA 721 (1990).
The Agency made an unsolicited allegation of nonnegotiability to the
Panel on November 9, 1989. The Unions did not file a timely petition
for review subsequent to that allegation. The Unions waited until the
Panel declined to assert jurisdiction over the parties' dispute before
they filed their first petition for review on December 23, 1989.
Although the Unions contended that this petition was "filed
prematurely," they filed it consistent with the Agency's view that the
15-day appeal period began when the Panel declined jurisdiction over the
parties' dispute. Union's February 26, 1990, Reply Brief at 1. Before
the Authority took any action on their first petition for review, the
Unions timely filed their second petition for review with the Authority.
We conclude that the Unions' first petition for review was untimely
filed because it was not filed within 15 days of the Agency's
unsolicited allegation of nonnegotiability before the Panel. In so
concluding, we reject the Agency's assertion that the 15-day time period
in which to file a petition for review was tolled by the issuance of the
Panel's dismissal of the Unions' request for assistance. However, we
construe the Unions' request to dismiss their first petition "on
procedural grounds" as a request to withdraw that petition. Unions'
February 27, 1990, Reply Brief at 2. As the Unions filed the first
petition as a protective measure only, we will grant the Unions' request
to withdraw it.
The Unions' second petition for review, also docketed as Case No.
0-NG-1781, was timely filed and is properly before the Authority in this
case. See Laborers' International Union of North America, AFL-CIO-CLC,
Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy,
California, 14 FLRA 686 n.1 (1984). We will consider the positions of
the parties submitted in connection with the second petition for review
in resolving the issues in this case. We note, however, that both
parties incorporated their earlier positions into the statements
submitted in connection with the second petition and that the proposals
in both petitions are identical.
B. Appropriate Arrangements
The Agency requests the Authority to reconsider its decision in
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24 (1986) (KANG), addressing the standard
for determining whether a proposal constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute. The Agency argues
that any proposal found to interfere with a management right is
nonnegotiable even if the proposal is intended to be an appropriate
arrangement.
In KANG, the Authority established the test for determining whether
proposals are negotiable as "appropriate arrangements" under section
7106(b)(3) of the Statute. The Authority referenced the decision of the
United States Court of Appeals for the District of Columbia Circuit in
American Federation of Government Employees, AFL-CIO, Local 2782 v.
Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), and
stated that the court "enunciated a standard which requires an analysis
of whether 'excessive interference' with a right reserved to management
would result from the implementation of the proposal." KANG, 21 FLRA at
25.
We decline the Agency's request that we reconsider KANG.
Accordingly, based on KANG, we reject the Agency's assertion that any
proposal found to interfere with a reserved right is nonnegotiable even
if the proposal is intended to be an appropriate arrangement. Instead,
to determine whether a proposal is negotiable as an appropriate
arrangement, we will determine whether the proposal constitutes an
arrangement and, if it does, whether it excessively interferes with a
management right under section 7106 of the Statute. See, for example,
American Federation of Government Employees, National Border Patrol
Council and U.S. Department of Justice, Immigration and Naturalization
Service, U.S. Border Patrol Western Region, 39 FLRA No. 55, slip op. at
7-8 (1991); National Federation of Federal Employees, Local 2096 and
U.S. Department of the Navy, Naval Facilities Engineering Command,
Western Division, 36 FLRA 834, 835 (1990) (Provision 1) (Naval
Facilities Engineering Command); National Federation of Federal
Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618,
622 (1990) (Proposal 1).
C. All of the Wording in the Proposals Is Subject to Negotiability
Determinations by the Authority
The Unions' proposals consisted of additions to, and deletions from,
the wording of the Agency's revised firearms policy. The Agency states
that "the fact that a Union proposal merely reiterates management's own
decision on how to exercise a reserved right does not make the proposal
negotiable . . . (and) proposals which impose an independent contractual
limitation on how management will exercise a particular right are not
negotiable merely because they faithfully repeat the language of
management's own policy statements." Statement of Position at 6. The
Agency further contends that the inclusion of various parts of its
revised policy in a collective bargaining agreement would improperly
subject the exercise of the management right involved in the policy to
arbitral review.
The Unions assert that the "Agency has mistakenly classified all of
the language" in the proposals at issue herein as "Union 'proposals'"
and that only the highlighted portions of the proposals "represent Union
proposals." Reply Brief at 4. The Unions contend that the "balance of
the language was proffered by the Agency, and was included solely for
the purpose of putting the Unions' proposals into proper context, and is
therefore not at issue in the instant proceeding before the Authority."
Id.
We conclude that the entire wording of the proposals submitted by the
Unions is subject to review by the Authority, whether the proposals
include language taken from the Agency's revised firearms policy or
whether the proposals include additions or deletions to the policy. The
Unions' proposals are framed in the context of the Agency's revised
policy, include language from the Agency's policy, and severing the
wording of the Unions' additions or deletions from the context of the
Agency's revised policy would make the proposals meaningless. Moreover,
the Unions seek to have the entire proposals included in the parties'
collective bargaining agreements.
The fact that the wording of the proposals is, in part, identical to
the language of the Agency's policy or regulation does not, by itself,
make the proposals negotiable. See National Treasury Employees Union
and Nuclear Regulatory Commission, 31 FLRA 566, 581 (1988) reversed in
part and enforced in part as to other matters sub nom. U.S. Nuclear
Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). Instead,
to the extend that a portion of the Agency's policy constituted, and
resulted from, the exercise of a management right under section 7106 of
the Statute, proposals incorporating the policy would be nonnegotiable
as an independent contractual limitation on management's rights. See
id.; Compare American Federation of Government Employees, AFL-CIO,
Council of Marine Corps Locals, Council 240 and Department of the Navy,
United States Marine Corps, 35 FLRA 108, 111-12 (1990) (proposal did not
establish a separate contractual limitation on management's right to
take disciplinary action). Under these circumstances, we will review
the entire proposals in order to determine whether they are negotiable.
Finally, we reject the Agency's contention that certain proposals or
portions of proposals are nonnegotiable on the basis that inclusion of
them in a collective bargaining agreement would subject them to arbitral
review. The Agency's assertion that an arbitrator's judgment may be
substituted for its own is not a basis for finding a proposal to be
nonnegotiable. See National Treasury Employees Union and U.S.
Department of Health and Human Services, Social Security Administration,
Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA No. 25,
slip op. at 5 (1991). As we noted above, the negotiability of each of
the proposals before us must be decided on its own merits. Those
proposals which we determine are within the duty to bargain may be
included in any agreement reached by the parties. The question as to
whether any subsequent arbitral award based on these proposals
constitutes an impermissible interference with management's rights must
be directed to the merits of such an award. We will not address this
argument further.
Section 4C- Carrying Firearms
The authority granted to an individual (or) a group of employees
to carry a firearm during duty or non-duty hours may be withdrawn
or restricted by an Authorizing Official when the withdrawal or
restriction is in the best interests of the Service and/or the
employee(s). A written notification, including justification for
revocation, will be served (upon the employee(s)) and may either
precede or follow the action. In all cases where the authority of
an individual to carry a firearm in the performance of duty is
withdrawn or restricted, management will (make reasonable efforts
to assign duties which do not require the carrying of a firearm,
in order that the safety of the employee(s) and co-workers is not
jeopardized). (The bracketed, bold-type portions of the proposal
represent wording added by the Unions to the language of the
Agency's revised policy.)
A. Positions of the Parties
1. The Agency
The Agency contends that the first sentence of Proposal 1, "is
clearly nonnegotiable . . . (because it) deals with management's
determinations as to who will be authorized to carry firearms."
Statement of Position at 15. The Agency asserts that such
determinations constitute exercises of management's right to determine
its internal security practices under section 7106(a)(1) of the Statute.
The Agency also contends that the sentence interferes with management's
rights to assign work, assign employees, and to determine the personnel
by which Agency operations will be conducted because the proposal "deals
with management's determinations as to who is qualified to use certain
equipment." Id. at 15-16.
The Agency contends that the first sentence of the proposal does not
constitute an appropriate arrangement because "it would 'totally
abrogate' management's discretion" as to whether employees "should be
allowed to carry a firearm(.)" Id. at 17. In this regard, the Agency
contends that the proposal "would affect management's initial exercise
of the right to determine who can use firearms, rather than interfering
with any subsequent exercise of some other right in an effort to
accommodate employees adversely affected by the initial exercise of the
right." Id. (citation omitted). The Agency concludes that if the
proposal is found to be an arrangement, it is nonnegotiable because the
excessively interferes with its "right to determine who can use a
firearm . . . ." Id.
The Agency contends that the second sentence of the proposal is
nonnegotiable because it "would subject the decision to revoke the
authorization to use a firearm to arbitral review." Id. at 18. The
Agency argues that if the proposal "were merely to require notice of
revocation on the employee before or after the fact without making the
justification for revocation subject to arbitral review (or further
negotiation with the Union), the proposal would be a negotiable
procedure." Id. at 18-19 (emphasis in original).
The Agency asserts that the last sentence of Proposal 1 is
nonnegotiable because it would interfere with management's right to
assign work and it "would subject to arbitral review management's
determination that the duties assigned do not present a situation where
the employee needs to be armed." Id. at 19-20 (footnote omitted). The
Agency also asserts that the proposal would interfere with management's
right to assign work because it "would preclude management from placing
the employee on administrative leave" so as to give the Agency "time to
investigate a firearms discharge" "by requiring the assignment of
nonhazardous duty." Id. at 25. Moreover, according to the Agency, the
last sentence of Proposal 1 "interferes with management's right to
remove and discipline employees under section 7106(a)(2)(A)" because it
could be interpreted "as requiring the assignment of other duties
insofar as it would preclude the assignment of hazardous duties." Id.
at 24 (emphasis in original). The Agency notes that "(i)f the proposal
only required that management not assign such hazardous duties . . .
when management itself has determined that the duties are truly
hazardous . . . (and that) determination would not be subject to
arbitral review, the proposal would be negotiable." Id. at 20 n.5
(emphasis in original).
The Agency maintains that the last sentence of the proposal does not
constitute an appropriate arrangement because "(n)ot authorizing the use
of a firearm does not in any way adversely affect an employee, in and of
itself." Id. at 21. The Agency contends that the proposal is "intended
to deal with the potentially adverse effects if, after withdrawing an
employee's authorization to carry a weapon, management decides to assign
hazardous work to that employee." Id. at 22. The Agency concludes that
the proposal constitutes "a prohibition against making the assignment ab
initio" rather than being an "arrangement for employees who could or
would be adversely affected by such an assignment." Id.
2. The Unions
The Unions assert that the "disputed language 'upon the employee'" in
the second sentence of Proposal 1 "is purely procedural(,)" and that
"the exercise of a management right of withdrawing the authority to
carry a firearm is not affected by that language." Reply Brief at 6.
The Unions assert that the last sentence of Proposal 1 "would merely
require the Agency to make reasonable efforts to protect the safety and
well-being of employees by not unnecessarily subjecting disarmed
employees to potentially dangerous situations." Id. at 7. The Unions
contend that the proposal "in no way mandate(s) the assignment of
employees to any type of duty, and (is) not intended to prevent
management from taking actions which would relieve employees of all
duties, including suspensions or removals." Id. (emphasis in original).
The Unions also assert that the last sentence of Proposal 1 is
"clearly an appropriate arrangement for employees adversely affected by
the Agency's exercise of its right to determine which employees are
qualified to carry firearms in the course of their duties." Id. The
Unions contend that the "adverse effects" ameliorated by the proposals
relate "to the requirement to perform normally dangerous law enforcement
duties without a firearm." Id. at 7-8. The Unions conclude that the
proposal "would not require the Agency to arm any employees, nor would
it prohibit the Agency from assigning work which might be considered
hazardous to unarmed employees(,)" but that it would require
"'reasonable efforts' on the Agency's part to assign duties which do not
require the carrying of firearms." Id.
B. Analysis and Conclusions
1. The First Sentence
Management's right to assign employees encompasses both the right to
determine the requirements and qualifications necessary to perform a
particular job task and the right to determine which employees meet
those qualifications. Proposals which deprive management of this
discretion directly interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute. See National
Federation of Federal Employees, Local 1437 and United States Army
Armament Research, Development and Engineering Center, Picatinny
Arsenal, New Jersey, 35 FLRA 1052, 1057-61 (1990) (Proposal 2).
The first sentence of Proposal 1 provides that the authority to carry
a firearm may be withdrawn by the Agency when the action is "in the best
interests of the Service and/or the employee(s)." As plainly worded, the
sentence establishes a standard by which Agency determinations as to the
qualifications necessary to carry a firearm, and the application of
those determinations so as to withdraw or restrict the carrying of
firearms, are to be measured. Although the proposed standard is broad,
it would nevertheless constitute a substantive limitation on the
Agency's discretion to determine the qualifications necessary to carry a
firearm. Consequently, we conclude that the first sentence of Proposal
1 directly interferes with management's right to assign employees.
Because we find that the first sentence of Proposal 1 directly
interferes with management's right to assign employees, we do not
address the Agency's additional arguments. Consistent with its position
that the first sentence does not constitute a proposal, the Union did
not assert that it constituted an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute. Moreover, as the Union
did not address any aspects of that sentence, we have no record on which
to determine whether the proposal excessively interferes with the
Agency's right. We are constrained to conclude, therefore, that the
first sentence of Proposal 1 is nonnegotiable.
2. The Second Sentence
The second sentence of Proposal 1 requires the Agency to serve a
written notice of the withdrawal of the authority to carry a firearm on
the affected employee. The Agency's only argument concerning this
sentence is that it would improperly subject the Agency's determination
as to the justification for its withdrawal of the right to carry a
firearm to arbitral review. The Agency asserts, in this regard, that
the second sentence of Proposal 1 would constitute a negotiable
procedure if the Agency's justification for the revocation of the
authority to carry a firearm were not subject to arbitral review.
As we discussed earlier, the mere assertion by the Agency that the
inclusion of a proposal in a collective bargaining agreement will
subject its actions regarding the proposal to arbitral review is not a
basis for finding a proposal to be nonnegotiable. As the Agency offers
no other argument that this portion of Proposal 1 is nonnegotiable, and
as no basis for so concluding is otherwise apparent, we conclude that
the second sentence of Proposal 1 is negotiable.
3. The Last Sentence
Management's right to assign work under section 7106(a)(2)(B) of the
Statute includes the right to determine what duties will be assigned.
Proposals which require an agency to assign particular work to an
employee directly interfere with management's right to assign work.
See, 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, 36-38 (1990)
(Portsmouth Naval Shipyard) (provision requiring agency to make every
effort to (1) place the employee in a different position at the same pay
and grade level which the employee is qualified to perform or, if
practicable, (2) waive qualifications standards and place the employee
in a "closely related occupation" held to directly interfere with
management's rights to assign employees and work).
The last sentence of Proposal 1 would require management to make a
reasonable effort to find work not requiring the use of a firearm for an
employee whose authority to carry a firearm has been withdrawn or
restricted. According to the Unions, the last sentence of Proposal 1
would "in no way mandate the assignment of employees to any type of
duty." Reply Brief at 7 (emphasis in original). We agree that, by
requiring the Agency to make a reasonable effort, the sentence does not
impose an absolute requirement that the Agency assign particular work to
employees. The inclusion of such qualifying language does not remove
the limitation placed on management's exercise of its right to assign
work, however. See, for example, Portsmouth Naval Shipyard, 35 FLRA at
38; National Treasury Employees Union and U.S. Department of the
Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27,
38 (1991) (provision requiring agency to make a reasonable effort to
find work for an employee removed from a work area where conditions
threaten the employee's health or physical safety directly interfered
with management's right to assign work). We conclude, therefore, that
by requiring the Agency to make a reasonable effort to exercise its
right to assign work in a particular way, the sentence directly
interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute.
We also conclude, however, that the last sentence of Proposal 1 does
not directly interfere with the Agency's rights to remove and discipline
employees. Nothing in the plain workding of the sentence, or the
Unions' statement of intent, supports a conclusion that the sentence
would affect in any way the Agency's discretion to propose or effect
disciplinary or removal actions under whatever standards and criteria
are applicable to those actions. As we noted in American Federation of
Government Employees, AFL-CIO, Local 3732 and U.S. Department of
Transportation, United States Merchant Marine Academy, Kings Point, New
York, 39 FLRA 187, 206 (1991) (Merchant Marine Academy), "the obvious
and necessary consequence of a removal of an employee is the cessation
of the assignment of work to that employee." We held, however, that
notwithstanding that connection, a requirement that an agency provide
notice of a decision concerning a removal action did not directly
interfere with the agency's right to assign work. The Agency here makes
the same claim we rejected in Merchant Marine Academy, albeit in
reverse, by claiming that the assignment of work interferes with its
rights to discipline and remove employees. For the same reasons we
rejected this argument in Merchant Marine Academy, we reject it here.
Although the last sentence of Proposal 1 directly interferes with
management's right to assign work, it is negotiable if it is an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. In determining whether a proposal is an appropriate
arrangement for adversely affected employees, the Authority first
determines whether the proposal is intended to be an "arrangement" for
employees adversely affected by management's exercise of a reserved
right. This determination is made by examining "the effects or
foreseeable effects on employees which flow from the exercise of those
rights, and how those effects are adverse." KANG, 21 FLRA at 31.
Proposals addressing "'purely speculative or hypothetical concerns, or
which are otherwise unrelated to management's exercise of its reserved
rights,'" will be excluded from consideration as appropriate
arrangements. West Point Elementary School Teachers Association, NEA
and United States Military Academy, West Point Elementary School, 34
FLRA 1008, 1012 (1990) (quoting American Federation of State, County,
and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA
453, 458 (1986)). If a proposal is determined to be an "arrangement,"
the Authority determines whether the proposed arrangement is
"appropriate," or whether it is inappropriate because it excessively
interferes with management's rights. KANG, 21 FLRA at 31-33.
It is foreseeable that an employee whose authority to carry a firearm
has been withdrawn will be a danger to himself and to his colleagues if
he remains in a position where the carrying of a firearm is required.
Placing such an employee in a position where the carrying of a firearm
is not required would minimize, or eliminate, this danger. Therefore,
we conclude that the last sentence of Proposal 1 is an "arrangement,"
within the meaning of section 7106(b)(3) of the Statute, because it
would ameliorate the adverse effect on an employee of management's
exercise of its right under section 7106(a)(2)(A) of the Statute to
decide that the employee is no longer qualified to carry a firearm.
Having concluded that the last sentence of Proposal 1 is an
"arrangement," we now consider whether it is "appropriate" within the
meaning of section 7106(b)(3) of the Statute. See Naval Facilities
Engineering Command, 36 FLRA at 841 ("Where an adverse effect is
reasonably foreseeable, and the disputed provision or proposal is
intended to be an arrangement for employees adversely affected, we will
proceed to examine whether the provision or proposal excessively
interferes with management's rights."). In KANG, 21 FLRA at 33, the
Authority stated that it would consider whether the negative impact on
management's rights is disproportionate to the benefits to be derived
from the proposed arrangement. Applying that standard, we must
determine whether the last sentence of Proposal 1 excessively interferes
with management's right to assign work.
We find that the burden placed on the Agency by the last sentence of
Proposal 1 is minimal. Nothing in the last sentence would require the
Agency to assign work to an employee if work was not available or the
employee was not qualified to perform it. Furthermore, the proposal
provides only that the Agency make a "reasonable effort" to reassign
employees whose authority to carry firearms has been withdrawn to
positions where the carrying of firearms is not necessary. As noted
previously, the proposal does not place an absolute requirement on the
Agency.
On the other hand, by requiring that the Agency make reasonable
efforts to reassign employees whose authority to carry firearms has been
withdrawn, the proposal offers a significant benefit to both the
affected employees and other employees with whom they might be assigned.
The proposal would facilitate placement of the affected employees in
positions where their inability to carry a firearm would not pose a
danger to themselves or to their colleagues. On balance, we find that
the benefits afforded employees by the last sentence far outweigh the
minimal impact on management's right to assign work. Accordingly, we
conclude that the last sentence of Proposal 1 does not excessively
interfere with management's rights and is an appropriate arrangement
negotiable under section 7106(b)(3) of the Statute.
Section 21- Firearms Qualifications
All officers required or designated to carry firearms shall
attend quarterly qualification with handguns. All officers
authorized to carry handguns shall be required to qualify on the
standard Service handgun qualification course (see Exhibit IV).
Officers who demonstrate an acceptable level of competence with
handguns by firing a 70% or more on the prescribed courses, and by
demonstrating safe operating techniques and proper execution of
immediate action drills will be certified proficient by the
Firearms Instructor on Form G-109. Those who are considered
deficient will not be authorized to carry a handgun until the
deficiencies have been corrected. (In all cases where the
authority of an individual to carry a firearm in the performance
of duty is withdrawn or restricted, management will make
reasonable efforts to assign duties which do not require the
carrying of a firearm, in order that the safety of the employee(
s) and co-workers is not jeopardized.)
(The bracketed, bold-type sentence in the proposal is wording
proposed by the Unions to be added to the Agency's revised policy.
The underscored portion of Sentence 3 is wording which the Unions
seek to delete from the Agency's policy.)
A. Positions of the Parties
1. The Agency
The Agency asserts that the first four sentences of Proposal 2 are
nonnegotiable because management "must retain its discretion under
section 7106(a)(2)(B) to determine the qualifications necessary to be
authorized to handle certain equipment." Statement of Position at 25-26.
The Agency also asserts that the first sentence of Proposal 2 "violates
the right to assign work . . . by requiring the assignment of particular
work . . . at specific times." Id. at 27. The Agency makes the same
arguments regarding the last sentence of Proposal 2 as it made in
connection with the last sentence of Proposal 1.
2. The Unions
The Unions took no specific position regarding the first four
sentences of Proposal 2. The Unions' position regarding the last
sentence of Proposal 2 is the same as their position concerning the last
sentence of Proposal 1.
B. Analysis and Conclusions
1. First Four Sentences
We agree with the Agency that the first four sentences of this
proposal would place substantive limitations on its right, under section
7106(a)(2)(A) of the Statute, to assign employees by determining the
qualifications necessary for employees to carry firearms.
In Proposal 1, we found that a general limitation on the Agency's
discretion to withdraw the authority to carry firearms directly
interfered with management's right to assign employees under section
7106(a)(2)(A) of the Statute. The first four sentences of Proposal 2
would limit the Agency's discretion to determine whether employees who
are required or designated to carry firearms should (1) qualify
quarterly, (2) qualify on a course designated by the Agency, (3)
demonstrate a specific level of proficiency determined by the Agency,
and (4) have their authority to carry firearms withdrawn if such
proficiency is not demonstrated. By placing substantive limitations on
the Agency's discretion to establish the criteria by which it will
decide whether to withdraw the authority to carry firearms, as well as
placing limitations on the Agency's discretion to withdraw the authority
to carry firearms, the effect of the first four sentences of Proposal 2
is the same as the effect of the first sentence in Proposal 1.
Consequently, for the reasons set forth in our discussion of the first
sentence of Proposal 1, we conclude that the first four sentences of
Proposal 2 directly interfere with management's right to assign
employees.
As noted with respect to Proposal 1, the Unions did not contend that
the first four sentences of Proposal 2 constitute an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute and
did not otherwise provide a record on which to determine that the
proposal constitutes an appropriate arrangement. Therefore, as the
first four sentences of Proposal 2 directly interfere with management's
right to assign work, we are constrained to conclude that they are
nonnegotiable.
2. The Last Sentence
The last sentence of Proposal 2 contains the same wording as the last
sentence of Proposal 1, and the parties made the same arguments
regarding both sentences. Therefore, we conclude, for the reasons set
forth in our discussion of the last sentence of Proposal 1, that the
last sentence of Proposal 2 is a negotiable appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute.
Proposal 3
Section 4F- Carrying Firearms
(Service) authorization to carry personally-owned handguns during
duty and non-duty hours shall be limited specifically to
Service-approved revolvers and semi-automatic pistols (meeting the
criteria outlined in sub-sections 12 and 14).
Proposal 4
Section 12- Approved Personally-owned Firearms
A. Handguns -- Authorization to carry personally-owned handguns
during duty hours, or (during) non-duty hours (pursuant to AM 4210,
sub-section 4B), shall be limited specifically to Service-approved
revolvers and semi-automatic pistols as follows:
(Revolvers)
(On-duty) -- Personally-owned revolvers authorized for carry shall be
double-action, in caliber .357 Magnum. Revolvers with a barrel length
of not less than 2-1/2 inches, nor more than four inches, may be
approved for use by officers who are required to work in civilian
clothes, assigned to inspectional duties, and for aircraft pilots.
Revolvers with a barrel length of not less than 3-1/2 inches nor more
than 4 inches may be approved for duty by other uniformed officers.
(Off-duty -- Personally-owned revolvers for carry shall have a steel
frame, and a minimum capacity of five shots. They must also be
double-action, in caliber .38 Special or .357 Magnum.)
(Semi-automatic Pistols)
(On-duty) -- Personally-owned semi-automatic pistols authorized for
carry will be double-action or safe-action semi-automatic pistols, in
caliber 9mm Luger or greater, equipped with a firing pin lock but
without an external, manually operated safety or a magazine
disconnector. The maximum barrel length is 5 inches. The following
semi-automatic pistols meet the Service-approved criteria, and are the
only pistols currently authroized for carry:
Sig-Sauer P220, P225 and P226
Glock 17 and 19
Heckler and Koch P7 M8 and M13
Walther P5 and P88
NOTE: This list will be periodically updated by the Firearms
Review Board through the Office of the Deputy Commissioner to
include new developments once formal testing and evaluation on new
handguns has been accomplished.
(Off-duty -- Personally-owned semi-automatic pistols authorized
for carry will be double-action or safe-action semi-automatic
pistols, in caliber .380 ACP or greater.)
(The bracketed, bold-type portions of the proposals represent
wording added by the Unions to the language of the Agency's
revised policy.)
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposals 3 and 4 "specifically list required
characteristics and even the brands of privately-owned firearms which
the (Agency) will authorize employees to use on- and off-duty." Agency's
Position at 28. The Agency argues that insofar as these proposals
define the particular weapons to be used while on duty, the proposals
interfere with management's right under section 7106(b)( 1) of the
Statute to determine the methods, means, and technology of performing
work. The Agency also argues that as the proposals "deal with lethal
weapons(,) . . . management's determinations as to which weapons can be
used" involve its right to determine internal security under section
7106(a)(1) of the Statute. Id. at 30. The Agency asserts that the
Authority "cannot substitute its judgment for that of the agency with
respect to whether (the agency) is making correct internal security
determinations." Id.
The Agency contends that its argument concerning the nonnegotiability
of proposals specifying the firearms which may be used during duty hours
"applies with respect to off-duty use of firearms." Id. at 31. The
Agency asserts that its right to determine its internal security
practices and the methods, means, and technology of performing its work,
means "that it is solely up to management to determine whether it will
authorize the off-duty use of low-powered, concealable weapons." Id.
The Agency notes, in this regard, that the Unions' proposals concern
"what firearms the (Agency) will authorize its employees to use off-duty
because of their status as (Agency) employees, and not with what they
are permitted to carry under state laws as private citizens." Id. at 32
(emphasis in original).
2. The Unions
The Unions assert that the wording of those portions of the proposals
they sought to modify "deal(s) exclusively with the types of weapons
that may be carried during non-duty hours by (employees) otherwise
authorized to carry firearms." Reply Brief at 10 (emphasis in original).
The Unions assert that in a prior decision involving the same parties,
United States Department of Justice, Immigration and Naturalization
Service and American Federation of Government Employees, National Border
Patrol Council, 31 FLRA 1123 (1988) (INS I), the Authority held that "it
is negotiable to restrict employer activities that have no relationship
to the employment of the employees." Id. at 10. The Unions conclude,
therefore, that the "lawful carrying of weapons during non-duty hours,
is not, in itself, related to employment." Id. at 11 (emphasis in
original).
The Unions contend taht if "it is a management right to determine
which types of weapons are appropriate for off-duty use," their
proposals "represent appropriate arrangements for employees adversely
affected by the exercise of that right." Id. at 13-14. The Unions
assert that the "adverse effect upon employees" of management's policy
of limiting the use of off-duty weapons "is the compromising of
(employees') safety and well-being . . . ." Id. at 14. The Unions note
that concealable weapons are authorized for undercover assignments, and
they assert that off-duty situations "are perfectly analogous" to
undercover assignments. Id. The Unions conclude that their proposals
would result in a "minimal" interference with management rights which
would be "greatly outweighed by the increased employee safety afforded
by expanding the choice of off-duty weapons . . . ." Id.
B. Analysis and Conclusions
1. Proposals 3 and 4 Directly Interfere With the Agency's Right to
Determine Its Internal Security Practices
Under section 7106(a)(1) of the Statute, an agency's right to
determine its internal security practices includes the right to
determine the policies and practices that are necessary to safeguard its
operations, personnel and physical property against internal or external
risks. See, for example, National Federation of Federal Employees,
Local 2050, and U.S. Environmental Protection Agency, 35 FLRA 706, 708
(1990) (EPA). In International Federation of Professional and Technical
Engineers, Local 25 and Department of the Navy, Mare Island Naval
Shipyard, Vallejo, California, 33 FLRA 304, 306-08 (1988) (Mare Island
Naval Shipyard), the Authority held that an agency's determination as to
whether, and to what extent, its security personnel should be armed is a
decision concerning the agency's internal security practices.
We reject, at the outset, the Unions' assertion that the proposals
concern only off-duty use of firearms. The proposals, as plainly worded
to encompass the Unions' proposed modifications to the Agency's policy,
identify certain portions of the policy as applying to on-duty use of
firearms and other portions as applying solely to off-duty use. As
such, the proposal clearly addresses both on-duty and off-duty use of
firearms.
In Fraternal Order of Police, Lodge 1F (R.I) Federal and Veterans
Administration, Veterans Administration Medical Center, Providence,
Rhode Island, 32 FLRA 944, 957 (1988) (Proposals 6 and 7) (VAMC
Providence), the Authority held that the "determination of the practices
and policies which are necessary to the accomplishment of the security
function of an agency, including the equipment to be used and the
assignment of personnel, is directly related to the determination of an
agency's internal security practices." We conclude that, in the
circumstances of this case, the Agency's determination as to the
categories of firearms which safely may be used by its employees in
performing their law enforcement responsibilities constitutes the
Agency's determination of the policies and practices necessary to
safeguard its operations and personnel. Accordingly, the Agency's
determination as to what firearms its employees may be authorized to
carry constitutes the exercise of the Agency's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
As the Agency's determinations regarding the categories of firearms
that safely may be used by its employees during the performance of their
duties constitute exercises of its right to determine its internal
security practices, Proposals 3 and 4, which restrict the Agency's
ability to modify its determinations by establishing substantive
criteria governing those determinations, directly interfere with that
right. See Mare Island Naval Shipyard (determination as to whether, and
to what extent, personnel providing security are to be armed involved an
internal security question); see also VAMC Providence, 32 FLRA at
955-58 (proposals which required an agency to provide particular
equipment and staffing patterns for its police officers, interfered with
the Agency's right to determine internal security practices).
Accordingly, we conclude, as to the portions of Proposals 3 and 4
addressing on-duty use of firearms, that the proposals directly
interfere with the Agency's right to determine its internal security
practices.
As for the off-duty use of firearms, the Unions assert that a prior
decision by the Authority involving the same parties, INS I, established
the principle "that it is negotiable to restrict employer activities
that have no relationship to the employment of the employees." Reply
Brief at 10. The Unions conclude that the "lawful carrying of weapons
during non-duty hours, is not, in itself, related to employment." Id. at
11 (emphasis in original).
The Unions' arguments are not clear. First, arguments regarding the
effects of matters or proposals on the work situation or employment
relationship are relevant to determining whether such proposals or
matters relate to conditions of employment. See generally, Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA 235 (1986). A proposal which does not relate to a
condition of employment is not within the duty to bargain under the
Statute. Id. at 236. The Agency does not assert that Proposals 3 and 4
do not relate to conditions of employment, however. Accordingly, as the
Unions assert that the proposals are negotiable, there appears to be no
dispute that Proposals 3 and 4 concern conditions of employment.
Second, as the Agency concedes, an employee may, as a private
citizen, carry any weapon during his or her off-duty hours, whether or
not authorized by the Agency, provided that the employee complies with
applicable laws. The presence or absence of Agency authorization to
carry certain firearms off-duty, therefore, does not affect an
employee's rights to carry lawful weapons. There is no basis on which
to conclude that the Agency seeks to control, or limit, an employee's
existing rights to carry firearms off-duty.
Finally, the proposals would modify the existing authorization for
employees to carry firearms off-duty by requiring the Agency to
authorize the off-duty use of certain additional firearms. That is, the
Unions are seeking Agency action with respect to employees' off-duty
activities. The effect of Proposals 3 and 4, in this regard, is to
extend the existing employment relationship between the Agency and
employees beyond those employees' duty hours by allowing employees to
carry, with Agency approval, certain weapons off-duty. As such, the
proposals flow solely from that employment relationship. Moreover, in
view of the purpose and intent of Proposals 3 and 4, the Union's
reliance on INS I is misplaced. The portion of that decision relied on
by the Union addressed the negotiability of a provision seeking to limit
the agency's right to conduct investigations regarding alleged
misconduct off-duty.
The Agency states that it authorizes the off-duty use of firearms by
its employees (1) "to allow for the carrying of firearms to and from
duty assignments(;)" (2) "to allow for additional voluntary training and
practice when the employee is away from his or her regular duties(;)"
and (3) "to promote the personal security of officers who must perform
law enforcement functions and may be subject to challenge away from
the(ir) official duty station . . . ." Statement of Position at 32. The
Agency states that it has determined that "the carrying off-duty of
handguns which differ from . . . approved on-duty guns may be hazardous
to an employee." Id. at 34.
We conclude that Agency determinations regarding the categories of
weapons to be authorized for off-duty use by employees constitute
exercises of the Agency's right to determine its internal security
practices. The Agency, for the reasons enumerated above, has authorized
employees to carry firearms outside of their normal tours of duty. One
of the stated reasons for such an authorization is to provide for the
personal security of its employees. Indeed, the essence of the parties'
dispute regarding Proposals 3 and 4 is their disagreement over which
weapons may most safely be used. The Unions assert, in this regard,
that the proposals would allow the employees to carry more concealable
weapons which are "more likely to be carried and available if needed."
Reply Brief at 13. The Agency asserts that the "relative power (ability
to incapacitate) offered" by the firearms authorized by the Agency "is
significantly greater" than that offered by the concealable weapons for
which the Union seeks authorization. Statement of Position at 33. The
Agency contends that "concealability is either unnecessary or
undesirable with respect to any of the purposes for which off-duty
carrying of a firearm is authorized." Id. at 34.
Proposals 3 and 4 would require the Agency to authorize the use of
weapons which the Agency has determined are inappropriate and unsafe.
The Agency's determinations as to which weapons will be authorized for
off-duty use, like its determinations regarding on-duty use of weapons,
constitute determinations of the policies and practices necessary to
safeguard its operations and personnel. Consistent with our conclusion
regarding on-duty use of firearms, therefore, we conclude that Proposals
3 and 4, insofar as they deal with the nature of the firearms which the
Agency will authorize for off-duty use by its employees, directly
interfere with the Agency's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
Having concluded that Proposals 3 and 4 directly interfere with the
Agency's right to determine its internal security practices, we do not
address the Agency's additional arguments, including its argument that
the proposals directly interfere with its right to determine the
methods, means, and technology of performing work. Accordingly, as the
Union does not assert that the portions of Proposals 3 and 4 addressing
on-duty use of firearms constitute appropriate arrangements, or
otherwise provide a record on which we could determine whether these
portions excessively interfere with the Agency's right, we are
constrained to conclude that these portions of the proposals are
nonnegotiable.
2. Proposals 3 and 4 Are Not Appropriate Arrangements
As we noted earlier, to determine whether the proposals constitute an
appropriate arrangement, we determine whether the proposals are (1)
intended to be an arrangement for employees adversely affected by the
exercise of a management right, and (2) appropriate because they do not
excessively interfere with the exercise of management's right. KANG.
More particularly, in determining, as a threshold matter, whether a
proposal is an "arrangement" for adversely affected employees, we
examine "the effects or foreseeable effects which flow from the exercise
of" management's rights, "and how those effects are adverse. KANG, 21
FLRA at 31. See also Naval Facilities Engineering Command, 36 FLRA 834,
841. Proposals that address "purely speculative or hypothetical
concerns, or that are otherwise unrelated to management's exercise of
its reserved rights," will be excluded from consideration as appropriate
arrangements. See Naval Facilities Engineering Command, 36 FLRA at 841.
However, where an adverse effect is reasonably foreseeable, and the
proposal at issue is intended to be an arrangement for those employees
adversely affected, we will consider whether the proposal excessively
interferes with management's rights.
The Unions contend that Proposals 3 and 4 are intended to protect
employees. The Unions contend that the adverse effects on employees of
the Agency's determination as to which weapons are appropriate for
authorized off-duty use "is the compromising of (the employees') safety
and well-being by limiting their choices of off-duty armament." Reply
Brief at 14. As noted previously, the Agency contends that
"concealability is either unnecessary or undesirable . . . ." Statement
of Position at 34.
We conclude that the Unions have failed to establish that employees
are or would be adversely affected by the Agency's decision to limit the
authorization for use of off-duty firearms to certain weapons. As noted
above, the Agency's policy does not affect an employees's rights as a
private citizen to carry lawful weapons. Employees may, therefore,
exercise those rights to carry or continue to carry any lawful weapons.
As such, contrary to the Union's argument, we are unable to determine
how the Agency's limitations on the weapons that are authorized for
off-duty use adversely affects employees' safety and well-being. As no
other adverse effect is asserted by the Union or apparent to us, we
conclude that Proposals 3 and 4 do not constitute arrangements for
adversely affected employees and are, therefore, nonnegotiable.
Moreover, even if we assumed that the proposals constituted
arrangements for employees who were adversely affected by the Agency's
decision to limit its authorizations for off-duty weapons, we would not
find the proposals to be appropriate arrangements. The proposals would
effectively negate the Agency's determinations as to the weapons, or
categories of weapons, that safely may be used by employees. As such,
the proposals would significantly affect the Agency's right to determine
its internal security practices. Moreover, as affected employees retain
existing rights to carry weapons off-duty, we are unable to conclude
that the proposals would provide significant benefits to employees. It
is clear, in this regard, that the parties disagree strongly over
whether employees are better protected off-duty by concealable weapons.
The Union has not asserted, however, that employees would be unable to
carry such weapons without Agency authorization. Applying the balancing
test set forth in KANG, the burden imposed by Proposals 3 and 4 on the
exercise of management's rights to determine its internal security
practices under section 7106( a)(1) outweighs the benefits provided
employees under the proposals. As a result, the proposals excessively
interfere with the exercise of management's right to determine its
internal security practices and are nonnegotiable.
Section 8A(6) (Shooting Incidents)
Employees directly or indirectly involved in a reportable shooting
incident or firearms discharge will be afforded the opportunity to
consult with a union representative prior to being required to
provide a written report or oral statement, other than the initial
verbal notification. Absent unusual circumstances, such
consultations will not delay the report or statement for more than
forty-eight (48) hours, consistent with the appropriate Collective
Bargaining Agreement provisions. (The record is not clear as to
whether any of the wording in this proposal was in the Agency's
revised policy, or whether this proposal consists entirely of
language submitted by the Unions.)
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 5 "is not a reiteration of the
'Weingarten' requirement contained in section 7114(a)(2)(B)" of the
Statute. Statement of Position at 38. The Agency contends that the
proposal would allow an employee entitled to rights pursuant to section
7114(a)(2)(B) "to delay being questioned for more than 48 hours even if
the representative is immediately available and the amount of
preparation time needed is minimal." Id. The Agency contends that the
proposal applies to all employees involved in an incident, even if they
have no rights pursuant to section 7114(a)(2)(B), and to any interview,
not just those conducted by Agency representatives. With respect to the
latter point, the Agency argues that the proposal does not concern a
condition of employment because the Agency cannot "enter into an
agreement . . . which would delay for 48 hours or more the investigation
into a potential crime by state or local police or by Federal
investigators." Id. at 44. Finally, the Agency argues that the proposal
would "require letting an employee consult with a union representative
before making a written statement, which is manifestly not an
investigatory interview, and the policy reasons for allowing union
representation at investigatory interviews under (section) 7114(
a)(2)(B) do not pertain to providing written statements." Id. at 39.
Because, in the Agency's view, the proposal "requires more than the
Statute requires," the proposal directly interferes with its rights,
under section 7106 of the Statute, to discipline employees, assign work,
determine its internal security practices, and take actions in an
emergency. With respect to its rights to discipline employees and
assign work, the Agency asserts that, "except in degree," this proposal
is no different from proposals giving employees "the right to remain
silent when being interviewed . . . ." Id. at 41-42. As for the right
to determine internal security practices, the Agency argues that the
proposal would prevent the Agency from "protecting internal security
during the 48-hours period" encompassed by the proposal. Id. at 42.
The Agency concludes that the proposal inhibits its ability "to obtain
information immediately" in situations where the delay inherent in the
proposal "could imperil ongoing operations, evidence, other employees,
and the public" and, thereby, prevent management from taking actions "to
carry out and maintain the security of (Agency) personnel, equipment,
and law enforcement operations." Id. at 42-43. Finally, the Agency
contends that shooting incidents constitute "inherent emergenc( ies)"
and, as such, the proposal directly interferes with its right to take
actions in an emergency. Id. at 43.
The Agency contends that the proposal "is also clearly not intended
to be an arrangement for employees adversely affected by the exercise of
a management right" because "(p)roviding a right to consult with a
representative before management does anything clearly does not satisfy
the temporal requirements of (section) 7106(b)(3) (of the Statute.)" Id.
at 43-44 (emphasis in original).
Finally, the Agency asserts that "the Union's allegations that the
proposal is consistent with existing provisions in the (parties')
collective bargaining agreements is irrelevant." Id. at 37. The Agency
asserts that having "agreed to nonnegotiable provisions in the past does
not bind an agency to continue to do so . . . ." Id. at 38. The Agency
concludes that the Union's assertion is not only irrelevant, but that it
is "inaccurate" because neither of the parties' agreements "addresses
any right of any bargaining unit employee to 'consult' with anyone(,)"
and because "a reporting procedure which is inconsistent with both
contracts and is consistent with the reporting procedures in (its new)
firearms policy . . . has been in effect since 1986." Id. at 38 n.10.
2. The Unions
The Unions contend that Proposal 5 is consistent with provisions of
the parties' existing collective bargaining agreements. Both agreements
provide, according to the Union, that "prior to taking a written or
sworn statement from an employee . . . he will be advised of his right
to be represented by the Union" and that the "failure to obtain
representation will not delay the interrogation for more than 48 hours .
. . ." Reply Brief at 15.
The Unions assert that the proposal "does not contemplate the right
to remain silent during investigative interviews, nor does it interfere
with management's ability to conduct an investigation into any matter."
Id. at 20. Rather, the Unions contend, their proposal "attempts to
ensure that employees are given the opportunity to be properly
represented prior to cooperating in investigations . . . ." Id. The
Unions assert that the proposal "does not contemplate Union
representation for non-Agency investigations of a potential criminal
nature." Id. at 22.
The Unions argues that the proposal would not preclude the Agency
from requiring employees to provide "basic information" necessary when a
firearms discharge incident has occurred. Id. at 19. The Unions point
out, in this regard, that the proposal would not, and is not intended,
to affect Section 8A(4) of the Agency's firearms policy, which provides:
Any employee who discharges a firearm, or is involved in or
observes a reportable shooting incident, shall verbally notify the
first-line supervisor as soon as time and circumstances permit,
but before the officer goes off duty. This may be accomplished by
radio or telephone and will include the following information:
The date, time, and location of the shooting incident. The
individual(s) involved in the shooting. Any injuries or deaths.
The type of weapon(s) and ammunition used and the number of shots
fired, if known. A brief description of the shooting incident,
including any unusual circumstances. (This is not intended to be
a comprehensive account of the incident. A more detailed written
report of the incident will be completed and submitted within the
time frames outlined below.)
Id. at 19-20.
The Unions assert that the proposal "attempts to mitigate the adverse
effects of the Agency's right to conduct investigations into the
job-related activities of its employees." Id. at 22. The Unions contend
that the Agency has used such investigations as a basis "to impose
disciplinary actions, including termination of employment," and, that
the "adverse effects of such disciplinary actions are incontrovertible."
Id. at 23. The Unions assert that their proposal is "procedural" and
that it "would not prevent the Agency from acting at all." Id. The
Unions conclude that if "a delay of up to 48 hours to conduct an
investigative interview would constitute interference with a management
right, any such interference would not be excessive, and would be far
outweighed by the benefit to both employer and employee of having a
knowledgeable Union representative present during the investigative
interview." Id. at 23-24.
B. Analysis and Conclusions
For the following reasons, we conclude that Proposal 5 does not
directly interfere with the Agency's rights under section 7106 of the
Statute. We conclude also that, even if it does so interfere, that
interference is so slight that the benefits afforded to unit employees
by the proposal strongly outweigh that interference and, as a result,
the proposal constitutes an appropriate arrangement. At the outset, we
note four things.
First, it is clear that, as asserted by the Agency, Proposal 5 does
not constitute a restatement of employee rights under section 7114(a)(
2) of the Statute. The proposal would, in this regard, apply to
employees both directly and indirectly involved in shooting incidents
and the right to Union representation encompassed by the proposal would
not depend on an affected employee's belief that he or she was subject
to discipline. It is clear also, however, that nothing in section
7114(a)(2) of the Statute prevents unions from negotiating contractual
rights to union representation which exceed the rights set forth in that
section of the Statute. See American Federation of Government
Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture,
Farmers Home Administration, Finance Office, St. Louis, Missouri, 34
FLRA 919, 924 (1990) (Farmers Home Administration) (provision requiring
union representation during discussion of "opportunity to improve
performance" letter held to be negotiable). See also American Federation
of Government Employees, Department of Education Council of AFGE Locals
and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1089
(1990) (portion of proposal requiring management to inform employees
that they have a right to union representation at any point in the drug
testing process held to be negotiable). Accordingly, we reject the
Agency's assertion that the proposal is nonnegotiable merely because it
is not a reiteration of the rights granted employees pursuant to section
7114(a)(2) of the Statute.
Second, we reject also the Agency's assertion that the proposal does
not constitute a condition of employment because it seeks to bind
entities other than the Agency to its terms. Nothing in the proposal,
as plainly worded, would bind non-Agency entities. The Union
acknowledges as much. Reply Brief at 22. The Agency has not
demonstrated that, consistent with its plain wording and the Unions'
statement of intent, the proposal does not concern conditions of
employment. Moreover, the investigations encompassed, and the Union
representation required, by the proposal clearly pertain to unit
employee's working conditions and, indeed, flow solely from the
employer-employee relationship. We conclude, therefore, that the
proposal concerns conditions of employment.
Third, we reject the Agency's assertion that the proposal would
provide employees with a "right to delay being questioned for more than
48 hours even if the representative is immediately available and the
amount of preparation time needed is minimal." Statement of Position at
38. The Agency's assertion reflects a fundamental misunderstanding of
the proposal, in our view. The proposal, by its plain terms, provides
employees "the opportunity to consult with a union representative prior
to being required to provide a written report or oral statement, other
than the initial verbal notification." Although the proposal also
provides that such consultation "will not delay the report or statement
for more than . . . 48 hours," it is clear that purpose of the proposal
is to facilitate union representation, not to delay the Agency's
investigation. In fact, as stated by the Union, "the maximum (except in
unusual circumstances) 48 hour period is to obtain a representative" and
"(o)nce a representative arrives, the clock stops." Reply Brief at 21
(emphasis in original). The Unions acknowledge, in this regard, that
"(i)n most situations, (the) delay would be minimal." Id. at 23.
Moreover, the Union states that the proposal would apply only if (1) the
Agency required a statement and (2) the affected employee requested
representation. Id. at 17. Stated simply, the proposal, as plainly
worded and consistent with the Unions' stated intent, facilitates union
representation and would not guarantee employees a 48-hour delay before
participating in Agency investigations.
Fourth and finally, we reject the Agency's assertion that the
proposal is "no different, except in degree, from union proposals which
would give employees the right to remain silent . . . ." Statement of
Position at 41-42. Nothing in the proposal would enable an employee to
refuse to answer Agency inquiries, whether orally or in writing. The
Unions specifically concede, in this regard, that the proposal "does not
contemplate the right to remain silent during investigative interview .
. . ." Reply Brief at 20. Moreover, as the Agency acknowledges, the
proposal would not affect the Agency's rights to enforce compliance with
section 8(A)(4) of its firearms policy. As such, the Agency would be
entitled to information which, by its terms, includes the date time and
location of the shooting incident, the individuals involved, information
concerning injuries, deaths, and types of weapons and ammunition used,
and a brief description of the incident, including any unusual
circumstances. Id. at 19-20. There is, quite simply, no basis on which
to conclude that the proposal would enable an employee to remain silent
in such a circumstance and, more importantly, the proposal would not
interfere with the Agency's ability to require all employees immediately
to provide information concerning the incident.
Interpreted in light of the foregoing, we conclude that the proposal
would not directly interfere with the Agency's rights to discipline
employees, assign work, determine its internal security practices, and
take actions in emergencies. As stated previously, the proposal would
only provide employees with an opportunity to consult with a union
representative before providing a written report or oral statement. The
proposal would not provide employees with a right to remain silent, and
would require only such delay in the Agency's investigation as was
necessary, up to 48 hours except in unusual circumstances, to facilitate
that representation. Moreover, the proposal would not affect the
Agency's enforcement of its regulatory requirement that employees
immediately provide information concerning a shooting incident.
The Agency has not demonstrated that, in view of its plain wording
and the Union's statement of intent, providing employees with Union
representation, including time necessary to effect that representation,
directly interferes with its rights under section 7106 of the Statute.
In particular, the Agency has not demonstrated, and it is not otherwise
apparent to us, that the proposal would preclude the Agency from
disciplining employees (for the underlying conduct or for failure to
cooperate in an investigation), or for requiring employees to cooperate
in such an investigation, including the requirement that employees
respond to Agency inquiries. Moreover, the Agency has not asserted or
demonstrated that, in veiw of the Union's interpretation of the
proposal, the proposal would directly interfere with its rights to
determine its internal security practices or to take action in an
emergency. Indeed, common sense dictates that there is some delay
between the occurrence of a shooting incident and the Agency's conduct
of an investigation. The Agency does not assert otherwise. As the
proposal encompasses only such time as necessary to facilitate Union
representation, we have no basis on which to conclude that, as a
practical matter, the proposal directly interferes with the Agency's
rights. We conclude, therefore, that the proposal is negotiable.
Moreover, even if Proposal 5 did, in some circumstances, directly
interfere with the Agency's rights, the proposal does not excessively
interfere with the rights. The proposal would only facilitate Union
representation. After consultation with a Union representative, if
requested by an employee, the Agency could require employees to
participate fully and completely in any investigation it conducted.
Indeed, even before such consultation occurred, the Agency would be
privileged to require affected employees to provide information
regarding a shooting incident. The proposal would not, in this regard,
significantly affect the Agency's rights to investigate shooting
incidents and take actions resulting from its investigations. As such,
the benefits to employees, which in our view include the facilitation of
consultation with the employees' recognized bargaining representative as
well as the ability to use a minimal amount of time to do so, strongly
and clearly outweigh such minimal affects on the Agency's rights.
Accordingly, even if the proposal were held to directly interfere with
the Agency's rights, it would constitute a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
Accordingly, we conclude that Proposal 5 is negotiable.
Section 12- (Approved Personally-owned Firearms)
NOTE: Officers who are currently carrying previously authorized
personally-owned double-action handguns which do not meet the
above criteria may continue to carry those handguns until such
time as a Service-issued semi-automatic handgun is actually made
available. Effective immediately, previous authorizations to
carry personally-owned single-action semi-automatic pistols are
rescinded. Under no circumstances will a single action
semi-automatic be authorized for carry. (The Unions propose to
delete the underscored portions from the Agency's revised policy.)
A. Positions of the Parties
1. The Agency
The Agency asserts that its revised firearms policy "would have
applied only to double-action handguns and therefore would not have
allowed the continued authorized carrying of single-action handguns
off-duty." Statement of Position at 46 (emphasis in original).
According to the Agency, its objection to single-action handguns "rests
upon the possibility of accidental discharges when the weapon is carried
for use." Id. at 48. The Agency asserts, in this regard, that similar
to Proposals 3 and 4, this proposal directly interferes with its rights
to determine its internal security practices and its right to determine
the methods, means, and technology of performing work.
The Agency states that as part of the implementation of the
prohibition on single-action handguns, it is "making a double(-)action .
. . a standard . . . handgun and will be procuring these weapons for
employees as well as authorizing employees to continue carrying such
handguns which are personally owned." Id. at 49. The Agency argues
that, as employees are not required to carry privately-owned weapons,
its rescission of authority to carry single-action handguns, both on-
and off-duty, does not adversely affect employees.
2. The Unions
The Unions assert that they seek to delete the underscored portion of
the proposal in an "attempt() to ameliorate the adverse effects of the
rescission of authorization to carry single-action semi-automatic
pistols." Reply Brief at 24. The Unions contend that the proposal
"merely seeks to have the Agency replace the unauthorized semi-automatic
pistol with an authorized semi-automatic pistol." Id. at 25. The Unions
contend that the Agency has agreed to allow employees currently
authorized to carry personally-owned double-action semi-automatic
firearms not meeting the Agency's new standards for firearms to continue
the authorized use of those weapons until such time as they are replaced
by an Agency-issued firearm meeting the Agency's new standards. The
Unions argue that the Agency should extend the same prerogatives to
those employees using privately-owned single-action semi-automatic
firearms.
The Unions concede that the proposal "interferes with management's
right to determine (the) technology, methods, and means of performing
work," but contend that "the degree of interference is not excessive."
Id. The Unions conclude that the benefit to employees of having the
Agency replace their firearm at the Agency's expense "far outweighs any
temporary inconvenience that the Agency might experience." Id.
Additionally, the Unions argue that "the balance weighs heavily in favor
of allowing employees to continue carrying such weapons until such time
as the Agency is able to offer suitable replacement weapons." Id.
B. Analysis and Conclusions
Based on the record as a whole, we conclude that Proposal 6 addresses
privately-owned weapons used by employees both on- and off-duty. That
is, it appears that, in addition to off-duty use, employees have been
authorized by the Agency to use privately-owned weapons during their
regular duty time. The Agency's revised firearms policy rescinds
authorization for use, both on- and off-duty, of all single-action
handguns. It appears also, from the plain wording of the Agency's
revised policy, that some personally-owned double-action handguns are no
longer authorized. Consistent with the policy, however, employees who
carry such privately-owned double-action handguns are authorized to
continue to carry them until such time as Agency-issued weapons are made
available. The Unions' proposal would, in this regard, extend the same
authorization to owners of the now-prohibited single-action handguns.
As so interpreted, the practical effect of Proposal 6 is the same as
the effects of Proposals 3 and 4. That is, Proposal 6 would, like those
proposals, require the Agency to authorize the use of certain weapons
(single-action handguns) which it has determined are unsafe and
unsuitable for its operations. For the reasons expressed fully in
connection with Proposals 3 and 4, therefore, we conclude that Proposal
6 directly interferes with the Agency's right to determine its internal
security practices under section 7106(a)(1) of the Statute. In view of
our conclusion, we do not address the Agency's additional arguments.
The Unions assert that the proposal constitutes an appropriate
arrangement for employees who are adversely affected by the Agency's
rescission of their authorization to carry a privately owned
single-action semi-automatic firearm. Therefore, we turn to the
question as to whether Proposal 6 constitutes an appropriate arrangement
under section 7106(b)(3) of the Statute.
As we discussed earlier, we apply the KANG standards to determine
whether the proposal constitutes an appropriate arrangement. More
particularly, in determining, as a threshold matter, whether a proposal
is an "arrangement" for adversely affected employees, we examine "the
effects or foreseeable effects which flow from the exercise of"
management's rights, "and how those effects are adverse." KANG, 21 FLRA
at 31. See also Naval Facilities Engineering Command, 36 FLRA 834, 841.
Proposals that address "purely speculative or hypothetical concerns, or
that are otherwise unrelated to management's exercise of its reserved
rights," will be excluded from consideration as appropriate
arrangements. See Naval Facilities Engineering Command, 36 FLRA at 841.
However, where an adverse effect is reasonably foreseeable, and the
proposal at issue is intended to be an arrangement for those employees
adversely affected, we will consider whether the proposal excessively
interferes with management's rights.
The Unions contend that the Agency's decision to rescind
authorization to carry single-action semi-automatic pistols "would
impose a severe financial hardship for those employees currently
authorized to carry such weapons, as the Agency is unwilling to provide
replacement semi-automatic pistols of any type." Reply Brief at 24. The
Unions further assert, in this regard, that the Agency "currently does
not have any replacement semi-automatic pistols to offer." Id.
We conclude that the Unions have failed to establish that employees
would be adversely affected by the Agency's decision to no longer
authorize the use of privately-owned single-action handguns. It is
undisputed in the record before us that employees are not required to
purchase or use privately-owned handguns. Although it appears that some
employees desire to carry a privately-owned weapon, and that the Agency
recognizes the practice by authorizing the use of such weapons, the
Unions have failed to demonstrate that the continued authority to use a
privately-owned weapon of their choice is a necessity in order for
employees to fulfill their job requirements. Moreover, consistent with
our discussion of Proposals 3 and 4 insofar as they related to off-duty
use of handguns, nothing in the Agency's policy would affect employees'
rights to carry single-action handguns off-duty. Put simply, the Unions
have not supported their assertion that rescission of authority to use
privately-owned single-action handguns would result in financial
hardship to employees or otherwise would affect them adversely.
As the Unions have failed to demonstrate that employees would be
adversely affected by the Agency's decision to no longer authorize the
use of privately-owned single-action semi-automatic pistols, we conclude
that Proposal 6 does not constitute an "arrangement" within the meaning
of section 7106(b)(3) of the Statute. Accordingly, Proposal 6 is
nonnegotiable.
Moreover, we conclude that, even if it could be demonstrated that the
Agency's decision to no longer authorize the use of privately-owned
single-action handguns has an adverse effect, or reasonably foreseeable
adverse effect, on employees, Proposal 6 is not an appropriate
arrangement. Like Proposals 3 and 4, Proposal 6 would require the
Agency to allow employees to continue to use weapons which the Agency
has decided are no longer appropriate or safe. As there is no
indication that employees are required to carry privately-owned handguns
on duty, and as employees would retain all existing rights to carry such
handguns off duty, we conclude that the minimal benefits to employees
are offset by the negative impact on management's right to determine its
internal security practices. As such, Proposal 6 excessively interferes
with management's right to determine its internal security practices
under section 7106(a)(1) of the Statute.
The petition for review is dismissed insofar as it pertains to the
first sentence of Proposal 1, the first four sentences of Proposal 2,
and Proposals 3, 4, and 6. The Agency shall, upon request, or as
otherwise agreed to by the parties, bargain over the balance of
Proposals 1 and 2, and over Proposal 5. /2/
(1) Although the Agency does not dispute the Authority's jurisdiction
over the petition for review, the Agency asserts that this case requires
two separate case numbers because the petition for review was filed on
behalf of two separate exclusive representatives. We reject the
Agency's assertion. The Border Patrol is a subsidiary of the
Immigration and Naturalization Service (INS). In addition, the INS'
revision of its firearms policy was applicable to both units and the
parties jointly negotiated over the proposed changes. Finally, although
the Agency asserts that there are conditions specific to each unit which
might require different conclusions as to the negotiability of the
disputed proposals, neither party makes any arguments in this case which
are specific to either unit. Therefore, we conclude that it is
appropriate to issue one decision covering both units.
(2) In finding these proposals and portions of proposals to be
negotiable, we make no judgment as to their merits.
40 FLRA 519
40 FLRA NO. 50
Dept. of the Air Force, Space Systems Division, and Air Force
Contract Management Division, Los Angeles Air Force Base, CA and AFGE,
Local 2429, Case No. 8-CA-90241 and 90248 (Decided April 30, 1991)
REQUEST FOR WAIVER OF EXPIRED TIME LIMITS AND MOTION FOR
RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
The Respondent asserted that the Authority should waive its expired
time limit applicable to the filing of motions for reconsideration
because: (1) questions had arisen as to whether Respondent had complied
with the Authority's order in an earlier case; and (2) bargaining
occurring subsequent to the Authority's order had resulted in an impasse
which is now pending before the FSIP. The Authority denied the request
because the Respondent had not established extraordinary circumstances.
Case No. 8-CA-90241, 8-CA-90248 (38 FLRA 1485 (1991))
U.S. DEPARTMENT OF THE AIR FORCE SPACE SYSTEMS DIVISION LOS ANGELES
AIR FORCE BASE, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2429, AFL-CIO
(Charging Party/Union)
U.S. DEPARTMENT OF THE AIR FORCE AIR FORCE CONTRACT MANAGEMENT
DIVISION LOS ANGELES AIR FORCE BASE, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2429, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority pursuant to the Respondent's
April 24, 1991, motion for reconsideration of the Authority's January
15, 1991, Decision and Order in the above-referenced case. The
Respondent acknowledges that its motion is untimely and requests waiver
of the expired time limit. No oppositions were filed to the
Respondent's request and motion.
For the following reasons, we deny the Respondent's request for
waiver of the expired time limit.
For the reasons set forth in 38 FLRA 1485, the Authority concluded
that the Respondent violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute by unlawfully implementing
changes in certain conditions of employment of bargaining unit
employees. The Authority ordered the Respondent, among other things, to
rescind the unlawful changes.
Limits
The Respondent asserts, in essence, that the Authority should waive
the time limit applicable to the filing of motions for reconsideration
because: (1) questions have arisen as to whether the Respondent has
complied with the Authority's order in 38 FLRA 1485; and (2) bargaining
occurring subsequent to the Authority's Order has resulted in an impasse
which is now pending before the Federal Service Impasses Panel.
Section 2429.17 of the Authority's Regulations provides that a
request for reconsideration of a final order of the Authority must be
filed within 10 days after service of the order. As acknowledged by the
Respondent, its motion for reconsideration is untimely.
Section 2429.23(b) provides that the Authority may waive expired time
limits "in extraordinary circumstances." The Respondent has not
established such extraordinary circumstances. Accordingly, without
addressing the motion for reconsideration, the Respondent's request for
waiver of the expired time limit is denied.
The Respondent's request for waiver of the expired time limit is
denied.
40 FLRA 515
40 FLRA NO. 49
Dept. of the Navy, Navy Resale Activity, Guam and AFGE, Local 1689,
Case No. 0-AR-2025 (40 FLRA 30) (Decided April 30, 1991)
REQUEST FOR RECONSIDERATION
ARBITRATION EXCEPTION
AUTHORITY JURISDICTION
NONAPPROPRIATED FUND EMPLOYEES
5 U.S.C. 7512
The Authority denied the motion for reconsideration of its earlier
decision in which it held that they were without jurisdiction under
7121(f) to review the Agency's exceptions because the award related to
the grievant's removal. However, the Authority took the opportunity to
clarify that it lacks jurisdiction over the Agency's exceptions because
the award concerned the removal of a nonappropriated fund employee.
Because the grievance in this case concerns the removal of a
nonappropriated fund employee, which is an action similar to one covered
by section 7512 arising under another personnel system, the award
relates to a matter described in 7121(f) and the Authority is without
jurisdiction to review the Agency's exceptions.
Case No. 0-AR-2025 (40 FLRA 30 (1991))
U.S. DEPARTMENT OF THE NAVY, NAVY RESALE ACTIVITY, GUAM
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1689
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on the Agency's motion for
reconsideration of our order dismissing exceptions in 40 FLRA 30 (1991).
The Union did not file an opposition to the Agency's motion.
Our order in 40 FLRA 30 dismissed the Agency's exceptions to an award
of Arbitrator Thomas Q. Gilson. The award related to the removal of a
nonappropriated fund employee. We held that we were without
jurisdiction under section 7121(f) of the Statute to review the Agency's
exceptions because the award related to the grievant's removal. For the
reasons that follow, we will deny the Agency's motion for
reconsideration. However, we will clarify our order to reflect that the
Agency's exceptions are dismissed on the ground that the ARbitrator's
award concerning the grievant's removal relates to a matter described in
section 7121(f) which arose under another personnel system and we are
without jurisdiction to review the Agency's exceptions.
In 40 FLRA 30 we concluded that the Agency's exceptions must be
dismissed because the Arbitrator's award concerned the removal of a
nonappropriated fund employee. In his award, the Arbitrator dismissed
the grievance over the grievant's removal, rescinded the Agency's action
barring the grievant from the U.S. Naval Station, Guam, and ordered the
Agency to pay the grievant $500 in lieu of damages for lost wages from a
job at a civilian fast food restaurant located on the Naval Station.
The Agency filed exceptions to the portion of the Arbitrator's award
rescinding the order that the grievant be barred from the Naval Station
and awarding $500 in lieu of damages for loss of the job at the
restaurant. The Agency maintained that that portion of the Arbitrator's
award exceeded the Arbitrator's authority and was contrary to law. We
held that because the Arbitrator's award related to the removal of the
grievant and concerned a matter under section 7121(f) of the Statute,
the Authority was without jurisdiction under section 7122(a) to review
the Agency's exceptions.
The Agency contends that extraordinary circumstances exist to warrant
reconsideration of the order in 40 FLRA 30. The Agency asserts that it
did not seek "review of any aspects of the removal action," and
acknowledges that the Authority does not have jurisdiction to review the
Arbitrator's decision concerning the removal of the grievant from his
position. Agency Brief at 2. In this regard, the Agency states that
because the grievant was a nonappropriated fund employee who was not
covered by 5 U.S.C. Section 7512, he had no right to judicial review
under 5 U.S.C. Section 7703, which provides for judicial review of
decisions of the Merit Systems Protection Board.
However, the Agency contends that the Authority erred by failing to
address issues which were unrelated to the grievant's removal. The
Agency maintains that the Arbitrator exceeded his authority by ordering
the rescission of the order barring the grievant from the U.S. Naval
Station, Guam, because at the time the order was issued the grievant was
no longer an employee of the Agency. The Agency also claims that the
Authority erred by noting that the Arbitrator found that the Agency
violated its own rules and regulations when it barred the grievant from
the Naval Station. The Agency states that the Arbitrator found only
that the Agency committed a technical violation of its regulations
dealing with employee interviews.
The Agency also contends that the Authority failed to address the
Agency's exceptions to the Arbitrator's award of $500 in lieu of damages
to the grievant for loss of wages at a fast food restaurant on the Naval
Base. The Agency claims that that issue is not related to the
grievant's removal because the grievant was not an employee at the time
he was barred from the Base. The Agency states that there is no
"express statutory authorization which would permit payment of the
'penalty' assessed by the (A)rbitrator." Id. at 4.
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 order
in 40 FLRA 30. In this regard, we find that the Agency's arguments
concerning our failure to address its exceptions relating to the order
barring the grievant from the Naval Base and to the award of $500 in
lieu of damages constitute nothing more than disagreement with and an
attempt to relitigate our finding in 40 FLRA 30 that the Arbitrator's
award related to the grievant's removal. Consequently, the Agency fails
to demonstrate the extraordinary circumstances necessary for
reconsideration of our order. See U.S. Department of the Navy, Norfolk
Naval Shipyard, Portsmouth, Virginia and National Association of
Government Employees, Local R4-19, 39 FLRA 1238 (1991).
However, we take this opportunity to clarify that the Authority lacks
jurisdiction over the Agency's exceptions because the Arbitrator's award
concerns the removal of a nonappropriated fund employee. Although
nonappropriated fund employees are not covered by 5 U.S.C. Section 7512,
the Authority has held that section 7121(f) includes actions similar to
those covered by section 7512 which arise under other personnel systems.
See Army and Air Force Exchange Service and American Federation of
Government Employees, Region Council 236, 33 FLRA 815, 817-18 (1988).
Further, the Authority has held that nonappropriated fund employees are
under another personnel system within the meaning of section 7121(f).
Id. Therefore, because the grievance in this case concerns the removal
of a nonappropriated fund employee, which is an action similar to one
covered by section 7512 arising under another personnel system, the
award relates to a matter described in section 7121(f) of the Statute
and we are without jurisdiction to review the Agency's exceptions to the
award.
Accordingly, we will deny the Agency's motion for reconsideration.
However, we will clarify our order consistent with the discussion set
forth above.
The Agency's motion for reconsideration is denied. The third
paragraph on page 3 of the order dismissing exceptions in 40 FLRA 30 is
modified to read as follows:
The Arbitrator's award in this case relates to the removal of
the grievant, a nonappropriated fund employee. Nonappropriated
fund employees are under another personnel system within the
meaning of section 7121(f) of the Statute. Because the
Arbitrator's award concerning the grievant's removal relates to a
matter described in section 7121(f) which arose under another
personnel system, the Authority is without jurisdiction to review
the Agency's exceptions and the exceptions will be dismissed.
40 FLRA 504
40 FLRA NO. 48
NAGE, Local R5-66 and Dept. of Veterans Affairs Medical Center,
Memphis, Tennessee (Maxwell, Arbitrator), Case No. 0-AR-1858 (Decided
April 30, 1991)
7122(a)
ARBITRATION EXCEPTION
AGENCY FAILED TO PROVE ELEMENTS OF CHARGE
AWARD TAINTED BY DELAY IN DISCIPLINE
ARBITRATOR FAILED TO CONSIDER ALL ARGUMENTS
TAINTED BY REPRISAL FOR WHISTLEBLOWER ACTIVITY
WHISTLEBLOWER PROTECTION ACT
5 U.S.C. 2302(b)(8)
PROHIBITED PERSONNEL PRACTICE
The Arbitrator denied the grievance over the 14-day suspension of the
grievant. The Union's first three exceptions were that the award was
deficient because: (1) the Agency failed to prove every element of all
the four charges against the grievant; (2) the award is "tainted" by
the Agency's delay in proposing discipline; and (3) the Arbitrator
erred by failing to consider all arguments as to all the charges against
the grievant. The Authority concluded that these exceptions provide no
basis for finding the award deficient, describing these exceptions as
constituting nothing more than disagreement with the findings and
conclusions of the Arbitrator and an attempt to relitigate the
grievance.
The Union's fourth exception was a contention that the Agency's
discipline is "tainted" by the Agency's reprisal for whistleblower
activities. Reviewing it's applicable precedent, the Authority noted
that when exceptions to an award raise the question of whether an agency
has committed a prohibited personnel practice by taking a personnel
action in reprisal for, or because of, a protected disclosure under the
Whistleblower Protection Act, the Authority will review the record in
the case to determine whether the award is consistent with law. In the
instant case, the Authority concluded that it could not determine
whether the award was deficient because the Arbitrator sustained
discipline that was in reprisal for disclosures protected under the Act.
Accordingly, the Authority vacated the denial of the grievance and
remanded the case to the parties for further proceedings.
With respect to the remand, the Authority stated that, absent
settlement, the parties may submit the matter of whether the suspension
was an impermissible reprisal to an arbitrator of their choice for
resolution. Because the Authority otherwise denied the Union's
exceptions, the merits of the Agency's case are not subject to
relitigation. If an arbitrator determines that the suspension was not
an impermissible reprisal, the suspension must be sustained. Finally,
the Authority noted that because the disciplinary action was pending
before the effective date of the Whistleblower Protection Act, the
matter of whether the suspension constitutes a prohibited personnel
practice must be resolved without regard to the Act.
Case No. 0-AR-1858
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R5-66
(Union)
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER MEMPHIS, TENNESSEE
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator John J. Maxwell. The Arbitrator denied the grievance over
the 14-day suspension of the grievant.
The Union filed exceptions to the award 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.
For the reasons that follow, we will remand this case to the parties
for further processing.
On April 27, 1987, the Agency's security police received a report
that an unauthorized person was using one of the medical center's rooms.
After investigating, a security police officer found a woman in the
room who "appeared in a dazed or drugged condition" and who was only
partially clothed. Award at 2. The woman was taken to the emergency
room for evaluation, but refused examination. The woman had been given
permission to sleep in the room by one of the Agency's resident
physicians, who had no authority to grant permission to the woman to use
the room. The resident was questioned by the security police who
confiscated the keys to the room from the resident "along with six
'Monoject' needles." Id. The woman was given a citation for loitering
and was released in the custody of the resident physician. As a result
of the incident, the Agency requested that the physician be removed from
the residency program. The physician was dismissed from the residency
program in November 1987.
Subsequently, the University of Tennessee, through whose residency
program the physician had been assigned to the Agency's medical center,
conducted a hearing on the incident, and Agency security policy officers
were requested to testify. One of the officers requested that he be
furnished with a copy of the investigation file to refresh his memory.
The officer was provided with a copy of the uniform officer's report, a
copy of the medical record dealing with the examination of the woman
found on the Agency's premises, and copies of two statements provided by
witnesses.
Those documents were obtained by the grievant, the local Union
president, apparently from the police officer who had requested a copy
of the file. They were then delivered by the grievant to an Assistant
U.S. Attorney for the Western District of Tennessee. According to the
Arbitrator, in providing these documents, the grievant inferred that the
resident physician was sexually assaulting the woman and supplying her
with drugs in order to continue his assaults and that the grievant
feared a cover-up by the Agency's security police.
As a result of the grievant's actions, on December 28, 1988, the
Agency proposed the grievant's removal on four charges: (1) release and
disclosure, without proper authorization, of information obtained as a
result of employment, which is of a confidential nature; (2) making
false or unfounded statements against government officials which tend to
damage the reputation or undermine the authority of those concerned;
(3) unauthorized possession of government property; and (4) intentional
concealment of material fact in connection with an investigation. The
Director of the medical center upheld the proposed discipline based on
all four charges, but reduced the penalty to a 14-day suspension. The
grievant filed a grievance over the suspension. The grievance was not
resolved and was submitted to arbitration.
With respect to the first charge, the Arbitrator noted that the
grievant admitted that he was in possession of the documents involved
and that he had delivered them to an Assistant U.S. Attorney. The
Arbitrator found that "(t)here is not doubt . . . that (the grievant)
did do the act he is charged with." Id. at 5. The Arbitrator also found
that these documents "were part of a system of records protected by the
Privacy Act and should not be disclosed to anyone without proper request
or authority." Id. at 3.
The Arbitrator stated that it appeared that the grievant was very
unhappy with the Agency's security police and welcomed any opportunity
to embarrass the Agency. In the Arbitrator's view, the documents
involved, along with a few personal allegations of the grievant, which
the Arbitrator found to be unsupported by any evidence, provided the
grievant with the opportunity he was seeking to embarrass the Agency.
The Arbitrator ruled that the grievant knew, or was charged with
knowing, that the documents were part of the Agency's office records
system and protected by the Privacy Act, which precluded their
disclosure to anyone, including an Assistant U.S. Attorney, unless there
were urgent reasons that would make such an action mandatory. The
Arbitrator found no such circumstances in this case that would permit
the grievant to circumvent the requirements of the Privacy Act.
For these reasons, the Arbitrator found that the grievant was guilty
of disclosure and release, without proper authorization, of information
obtained as a result of his employment, which was of a confidential
nature, as alleged by the Agency. The Arbitrator further found that the
14-day suspension for such charge was not "cruel or excessive" and that
the additional charges against the grievant encompassed the same charge.
Id. at 7. Consequently, the Arbitrator ruled that he did not need to
rule on the additional charges separately and that the 14-day suspension
was warranted. Accordingly, the Arbitrator denied the grievance.
A. Positions of the Parties
The Union contends that the award is deficient because: (1) the
Agency failed to prove every element of all the four charges against the
grievant; (2) the award is "tainted" by the Agency's delay in proposing
discipline, Exceptions at 23; and (3) the Arbitrator erred by failing
to consider all arguments as to all the charges against the grievant.
The Union argues that the award is contrary to law because the Agency
failed to prove all the elements of all four of the charges brought
against the grievant. The Union maintains that the Agency had the
burden of proof and failed to meet it. The Union asserts that the
Arbitrator ignored the Union's arguments and that the award is totally
devoid of any reasoning.
The Union also argues that the discipline was untimely under Article
11, section 4 of the parties' collective bargaining agreement. The
Union claims that the delay in proposing discipline constituted harmful
error and that, consequently, the Arbitrator should have reduced or
overturned the discipline.
The Union also argues that the Arbitrator erred by failing to
consider the arguments as to all four charges. The Union maintains that
the discipline was based on all four charges and that, consequently, the
Arbitrator should have considered all four charges and decided whether
the discipline was appropriate on the basis of a full consideration of
the charges. The Union claims that, by sustaining the discipline based
on only one charge, the Arbitrator deprived the grievant of due process
because he was suspended for 14 days based on all four charges.
The Agency disputes the Union's contentions. The Agency first
disputes the Union's contention that the Arbitrator ignored the Union's
arguments. The Agency notes that the award clearly states that the
Arbitrator studied the briefs of both parties. The Agency further
argues that the Arbitrator appropriately found that the grievant was
guilty of the unauthorized disclosure, as alleged, and that under
Authority precedent, an arbitrator is not required to discuss particular
items of evidence and an award is not deficient for failing to do so.
The Agency maintains that the Union's contentions about the asserted
failure to prove the charges constitutes nothing more than disagreement
with the Arbitrator's findings of fact and evaluation of the evidence
and testimony.
The Agency also asserts that the Arbitrator properly denied the
grievance based on the first charge. The Agency maintains that because
the Arbitrator found that the first charge was sustained and that a
14-day suspension was proper and appropriate, there was no need for the
Arbitrator to discuss the remaining charges.
The Agency further asserts that, contrary to the claim of the Union,
the discipline was not untimely. The Agency maintains that the Union's
exception constitutes disagreement with the Arbitrator's evaluation of
the evidence in failing to find that the discipline was untimely.
B. Analysis and Conclusions
We conclude that these exceptions provide no basis for finding the
award deficient.
The Union's claim that the Arbitrator erred by failing to consider
the arguments as to all four charges against the grievant fails to
establish that the award is deficient. We find that the Arbitrator's
conclusion that the 14-day suspension was appropriate based solely on
his finding that the grievant was guilty of unauthorized disclosure, as
alleged in the first charge, does not render the award deficient. The
Arbitrator reviewed the appropriateness of the penalty in view of the
considerations of the first charge, which he found encompassed the
additional charges, and found that the penalty was appropriate. Award
at 7. The Union fails to establish otherwise and its contentions
provide no basis for finding the award deficient. See Veterans
Administration Medical Center, Birmingham, Alabama and American
Federation of Government Employees, Local 2207, 35 FLRA 553, 559 (1990).
As we have acknowledged, for example, Department of Justice, Federal
Prisons Systems, El Reno Federal Correctional Institution, El Reno,
Oklahoma and American Federation of Government Employees, Council of
Prisons Locals, Local No. 171, 35 FLRA 329, 336 (1990) (El Reno FCI),
the Authority noted in Social Security Administration and American
Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1162 (1988):
"(A)rbitrators routinely resolve under the Statute and the Civil Service
Reform Act grievances over whether disciplinary action was warranted
and, if so, whether the penalty assessed was appropriate." Indeed, as
the Authority indicated in Newark Air Force Station and American
Federation of Government Employees, Local 2221, 30 FLRA 616, 636 (1987),
this is precisely one of the functions that arbitrators perform, and
that Congress intended that arbitrators perform, under the Statute.
Accord El Reno FCI, 35 FLRA at 336. In our view, consistent with this
arbitral authority, an arbitrator may determine that the assessed
penalty is appropriate and warranted based on one or more of the charges
in multiple charge cases and may sustain the discipline based on such
misconduct.
We also find that the Union's claim that the award is deficient
because the Agency failed to meet its burden of proof fails to establish
that the award is deficient. As decided above, the Arbitrator did not
err by resolving the grievance based on the misconduct established for
the first charge. Consequently, we conclude that the Union's contention
that the award is deficient because the Arbitrator considered only the
first charge against the grievant constitutes nothing more than
disagreement with the Arbitrator's evaluation of the evidence and
testimony, his reasoning and conclusions, and his findings of fact and
an attempt to relitigate the merits of this case before the Authority.
As such, this exception provides no basis for finding the award
deficient. For example, U.S. Department of Defense, Defense Logistics
Agency and American Federation of Government Employees, Local 2144, 39
FLRA 269, 273 (1991); U.S. Department of the Air Force, Warner Robins
Air Logistics Center, Robins Air Force Base, Georgia, 34 FLRA 315, 318
(1990).
Similarly, the Union's contentions that the Arbitrator failed to
consider the Union's arguments and that the award is devoid of any
reasoning provide no basis for finding the award deficient. In view of
the Arbitrator's statement that he had carefully examined the testimony,
the exhibits, and the parties' briefs, the Union's contentions
constitute mere disagreement with the findings and conclusions of the
Arbitrator based on the testimony and evidence presented at the
arbitration hearing. See U.S. Department of Defense, Defense Mapping
Agency, Hydrographic/Topographic Center, Washington, D. C. and American
Federation of Government Employees, Local 3407, 35 FLRA 929, 930 (1990).
Furthermore, we reject the implication of the Union's contentions that,
in the circumstances of this case, the Arbitrator was obligated to set
forth specific findings or a rationale more extensive than he did to
support the award denying the grievance. See U.S. Department of the Air
Force, McClellan Air Force Base, California and American Federation of
Government Employees, Local 1857, 35 FLRA 1295, 1296-97 (1990);
American Federation of Government Employees, Local 171 and Federal
Correctional Institution, 32 FLRA 965 (1988) (rejecting contention that
the arbitrator was obligated to set forth specific findings and a
rationale to support the award denying the grievance and citing Wissman
v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988), in
which the court indicated that there is no general statutory obligation
that an arbitrator set forth specific findings).
For similar reasons, we conclude that the Union fails to establish
that the award "is tainted" by the Agency's delay in processing the
discipline. Exceptions at 23. Just as the Arbitrator was not obligated
to set forth specific findings and a rationale to support the award
denying the grievance, as discussed above, he was not obligated to set
forth specific findings and a rationale to support the failure to find
the discipline to be untimely, as was asserted by the Union.
Consequently, we view the Union's contention to constitute nothing more
than disagreement with the finding and conclusion of the Arbitrator not
to sustain the grievance because of the alleged delay by the Agency in
processing the discipline. As such, the Union's contention provides no
basis for finding the award deficient. See U.S. Department of Veterans
Affairs Medical Center, Memphis, Tennessee and National Association of
Government Employees, Local R5-66, 34 FLRA 893, 896 (1990).
Accordingly, we deny these exceptions.
A. Positions of the Parties
The Union contends that the Agency's discipline of the grievant is
"tainted" by the Agency's reprisal for whistleblowing activities.
Exceptions at 23. The Union argues that the award is deficient because
it sustained discipline that constituted a reprisal for whistleblowing
activities that were protected from reprisal under 5 U.S.C. Section
2302(b)(8). The Union claims that the grievant reasonably believed that
criminal activity had occurred and was being covered up and that such
actions could endanger the health and safety of employees and others who
came in contact with the physician involved. The Union asserts that in
his capacity as a concerned individual and as Union president, the
grievant went to law enforcement officials to report what he perceived
as the problem and for that he was disciplined.
The Agency contends that the whistleblower claims have no relevance
in an arbitration proceeding. The Agency maintains that such claims
must be raised by filing a claim with the Office of Special Counsel,
which the grievant did not do.
B. Analysis and Conclusions
For the following reasons, we will remand this case to the parties
for further proceedings.
Prohibited personnel practices are set forth at 5 U.S.C. Section
2302(b). At the time this case arose, section 2302(b)(8) /1/ prohibited
an agency from taking a personnel action in reprisal for:
(A) a disclosure of information by an employee or applicant
which the employee or applicant reasonably believes evidences --
(i) a violation of any law, rule, or regulation, or
(ii) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health
or safety,
if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive order
to be kept secret in the interest of national defense or the
conduct of foreign affairs(.)
Because a personnel action, such as a suspension, that is taken in
reprisal for a protected disclosure constitutes a prohibited personnel
practice, such a personnel action is not in accordance with law and
cannot be sustained. See U.S. Department of the Treasury, Customs
Service, Dallas, Texas and National Treasury Employees Union, Chapter
140, 37 FLRA 1022 (1990) (Customs Service) (arbitrator revoked the
grievants' change in work status because the change was in reprisal for
disclosures protected under section 2302(b)(8); the Authority denied
the agency's exception, which contended that the award was contrary to
section 2302(b)(8)); Sowers v. Department of Agriculture, 24 MSPR 492
(1984) (Sowers) (employee's removal was reversed because the agency
action was primarily caused by its desire to retaliate against the
employee for his whistleblowing activities). Before the Merit Systems
Protection Board in cases involving serious adverse actions covered
under 5 U.S.C. Section 7512, the agency must prove that: (1) the
employee committed the act of misconduct for which the employee was
disciplined; (2) the discipline is for "such cause as will promote the
efficiency of the service," 5 U.S.C. Section 7513(a); and (3) the
assessed penalty is appropriate. See Sowers, 24 MSPR at 493-94. Prior
to the Whistleblowers Protection Act, if the agency established the
merits of its case against the employee, the employee could raise the
affirmative defense that the adverse action was not in accordance with
law because the action was in reprisal for /2/ protected disclosures
under section 2302(b)(8) and could not be sustained. See, for example,
Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986). In
Customs Service, we recognized that, in order to find that a disclosure
of information is protected against impermissible actions under section
2302(b)(8), it must be established that the employee is protected by the
statute and that: (1) a protected disclosure was made; (2) the
official accused of taking the retaliatory action knew of the
disclosure; (3) the challenged action against the employee could have
been retaliation; and (4) a nexus is established between the adverse
action and the motive. 37 FLRA at 1033 (citing Christopher v. Defense
Logistics Agency, 44 MSPR 264, 271 (1990)).
As indicated by Customs Service, when exceptions to an arbitration
award raise the question of whether an agency has committed a prohibited
personnel practice by taking a personnel action in reprisal for, or
because of, a protected disclosure under section 2302(b)(8), we will
review the record in the case to determine whether the award is
consistent with law. In this case, the issue of whether the grievant
was suspended in reprisal for protected disclosures under section 2302(
b)(8) was raised as an affirmative defense to the suspension by the
grievant before the Arbitrator, but was not addressed or resolved by the
Arbitrator in his award sustaining the suspension and denying the
grievance. The award contains no findings, conclusions, or discussion
on whether the suspension was not in accordance with law or whether it
was an impermissible reprisal under section 2302(b)(8). The Union
contends that the suspension cannot be sustained because it constituted
an impermissible reprisal under section 2302(b)(8). The Agency in its
opposition does not address this specific issue. The Agency argues only
that whistleblower claims have no relevance in arbitration proceedings,
a claim that we reject as totally without support.
Based on the record presented, we cannot determine whether the award
is deficient because the Arbitrator sustained discipline that was in
reprisal for disclosures protected under section 2302(b)(8). See
Sowers, 24 MSPR at 495 (noting that the determination of whether there
was a reprisal for whistleblowing must be made after a complete analysis
and weighing of testimonial evidence, particularly evidence regarding
the motivation and intent of the agency in taking the action).
Accordingly, we will vacate the denial of the grievance and remand the
case to the parties for further proceedings.
On remand, absent settlement, the parties may submit the matter of
whether the suspension was an impermissible reprisal under section
2302(b)(8) to an arbitrator of their choice for resolution. Because we
have otherwise denied the Union's exceptions, the merits of the Agency's
case are not subject to relitigation. If an arbitrator determines that
the suspension was not an impermissible reprisal, the 14-day suspension
must be sustained in accordance with the Arbitrator's award. Therefore,
the sole purpose of this remand is to have addressed and resolved the
matter of whether the suspension constitutes a prohibited personnel
practice under section 2302(b)(8) that, consequently, cannot be
sustained. We note that because the disciplinary action against the
grievant was pending before the effective date of the Whistleblower
Protection Act, the matter of whether the suspension constitutes a
prohibited personnel practice under section 2302(b)(8) must be resolved
without regard to the Act.
The award is vacated to the extent that the award denied the
grievance. The case is remanded to the parties for further processing
in accordance with this decision.
(1) The Whistleblowers Protection Act, Pub. L. No. 101-12, 103 Stat.
16 (1989), subsequently amended section 2302(b)(8), effective July 9,
1989, to provide as follows:
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not, with
respect to such authority --
(8) take or fail to take, or threaten to take or fail to take,
a personnel action with respect to any employee or applicant for
employment because of --
(A) any disclosure of information by any employee or applicant
which the employee or applicant reasonably believes evidences --
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health
or safety,
if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive order
to be kept secret in the interest of national defense or the
conduct of foreign affairs(.)
(2) As a result of the Whistleblowers Protection Act, an employee
must show that the action was "because of" protected disclosures rather
than "in reprisal for" such disclosures.
40 FLRA 498
40 FLRA NO. 47
AFGE, Council of Prison Locals, Local 1612 and Dept. of Justice,
Federal Bureau of Prisons, Medical Center for Federal Prisoners,
Springfield, Missouri (Zerboni, Arbitrator), Case No. 0-AR-2019 (Decided
April 29, 1991)
7122(a)
ARBITRATION EXCEPTION
FAILS TO DRAW ESSENCE
FEDERAL PERSONNEL MANUAL
MERIT SYSTEM PROTECTION BOARD
DOUGLAS FACTORS
The Arbitrator denied a grievance over the 14-day suspension of an
employee. The Authority denied the Union's exceptions. The Authority
construed the Union's exception that the award violates a provision of
the agreement as a contention that the award fails to draw its essence
from the agreement and concluded that the Union had not demonstrated
that the award was deficient under any of the tests for this contention.
The Authority also rejected the contention that the award is consistent
with the FPM, noting that nothing in the FPM requires an agency to
refrain from suspending an employee for even a "minor" offense.
Finally, the Authority rejected the contention that the award was
inconsistent with MSPB decisions, noting that the Arbitrator was not
required to consider the Douglas factors enunciated by MSPB.
Case No. 0-AR-2019
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF PRISON LOCALS
LOCAL 1612
(Union)
U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS MEDICAL CENTER
FOR FEDERAL PRISONERS SPRINGFIELD, MISSOURI
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on exceptions to an award of
Arbitrator John A. Zerboni 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 exceptions.
The Arbitrator denied a grievance over the 14-day suspension of a
correctional officer employed by the Agency. For the following reasons,
we find that the Union's exceptions do not establish that the award is
deficient. Accordingly, we will deny the exceptions.
There are six towers at the Agency's facility, each staffed by one
correctional officer or guard whose duties are to watch for unauthorized
people in the courtyard below and generally to maintain constant
surveillance. The towers are all connected by intercom to a control
center with open telephone lines running to each tower and to each
guard. Each correctional officer can leave the lines open and talk with
each and every other guard. General conversation is encouraged by the
Agency so that the guards will remain awake and alert to the happenings
in the yard below. The ongoing conversations generally relate to
personal experiences, talk about hunting or fishing and discussions of
family matters, current affairs and matters of local interest.
During the evening watch on January 31, 1990, the grievant, a senior
correctional officer, was talking over the intercom circuit to all of
the other towers about equal employment opportunity, the NAACP, and
black people, in general. His conversation was negative and he
complained about lack of support for white males. The grievant then
"selected as a target of racial abuse a fellow (s)enior (c)orrectional
(o)fficer" who was on duty that night in one of the towers. Award at 3.
The grievant "proceeded to harass this victim by calling him a 'nigger'
on more than one occasion." Id. The grievant continued to make racially
derogatory statements to and about the other guard.
The Agency conducted an investigation of the incident. The grievant
was interviewed as part of the investigation. The grievant admitted
that he did call the other guard a "nigger" once. He stated that he was
surprised at the matter being investigated because he had apologized,
and he and the other guard were friends and "all was forgiven." Id. at
4.
The grievant received a 14-day suspension for his conduct. The
suspension was grieved. The grievance was not resolved and was
submitted to arbitration. The issue before the Arbitrator was framed
as: "Was the two week suspension imposed on the grievant for just and
sufficient cause?" Id.
The Arbitrator determined that Article 30 of the parties' collective
bargaining agreement governed the matter in dispute. Article 30,
entitled Disciplinary and Adverse Actions, provides:
Section a. The Employer and the Union recognize that the
public interest requires the maintenance of the highest standards
of employee conduct. Maintenance of these standards may require
the initiation of disciplinary or adverse action against
employees. Such action will be taken only for just and sufficient
cause and to promote the efficiency of the service.
Section b. Disciplinary actions are defined as written
reprimands or suspensions of fourteen (14) days or less. Adverse
actions are defined as removals, suspensions for more than
fourteen (14) days, reductions in grade or pay, or
furloughs of thirty (30) days of less.
Section c. The parties endorse the concept of progressive
discipline designed primarily to correct and improve employee
behavior, except that the parties recognize that there are
offenses so egregious as to warrant severe sanctions for the first
offense up to and including removal.
The Arbitrator noted that Section a. of Article 30 expresses the
parties' acknowledgement that employees are required to display the
highest standards of conduct. The Arbitrator also noted that the
Agency, in its notice to the grievant of his suspension, stated that the
evidence submitted fully supported the grievant's suspension and was in
the interest of the efficiency of the service.
The Arbitrator found that although the Agency considered the Union's
request for progressive discipline in accordance with Article 30,
Section c., the Agency believed that the conduct of the grievant
"clearly fell within the exception (in Article 30, Section c) because
his offense was so egregious as to warrant the severity of a fourteen
(14) day suspension." Id. at 6. The Arbitrator concluded that the
grievant's acts were not isolated incidents but that the grievant
engaged in on-going racial slurs and comments about blacks being
"niggers" and that such conduct "was certainly not in the best interest
of the service." Id. The Arbitrator fully acknowledged that "the '(t)
ower (t)alk' as described by the five or six witnesses was a far cry
from polite parlor talk." Id. at 7. However, the Arbitrator noted that
witnesses had never heard a derogatory or racial remark made by another
officer.
In conclusion, the Arbitrator explained that the quality of the guard
service is dependent upon the relationship of the individuals and that
there is no place in the service for an employee who offends or provokes
another because such acts would cause dissension and, therefore, would
be detrimental to the service.
In summary, the Arbitrator found that the grievant "by his own
admission, called (a fellow guard) a 'nigger' on one occasion.
Testimony of all of the (c)orrectional (o)fficers on duty that night
declared that they heard him more than the one time and even further,
some had heard him at times other than on January 31, 1990. (The
grievant) is obviously an uncontrolled bigot and must be punished in
order to deter this type of action from being committed by him again.
And, further, as a determent (sic) to all others that this type of
action will not be tolerated." Id. at 8.
Accordingly, the Arbitrator denied the grievance.
The Union argues that the Arbitrator's award is deficient "because it
does not consider the negotiated Master Agreement, Federal Personnel
Manual or Douglas factors." Exceptions at 1. The Union contends that
the award "violates" Article 30 of the collective bargaining agreement
because, although the Arbitrator found that progressive discipline "was
not considered" because of the egregious nature of the grievant's
offense, in his "findings" the Arbitrator stated that the suspension was
necessary as a deterrent. Id. at 2. The Union states that the
"concepts of punishment and example are contrary to the provisions of .
. . Article (30)." Id.
Similarly, the Union argues that the award is contrary to FPM Letter
751-2 entitled "Taking Action on the Problem Employee." The Union
maintains that this letter suggests that the remedy for rudeness to a
fellow employee should be an informal discussion or a warning and that
disciplinary action is recommended only if the misconduct continues.
Finally, the Union contends that the award is deficient because the
Arbitrator failed to consider the "so-called Douglas Factors" which are
"generally recognized as relevant in determining the appropriateness of
a penalty." Id.
The Agency argues that the Union's exceptions fail to establish that
the Arbitrator's award is deficient. The Agency contends that the
Arbitrator appropriately found that the Agency had not violated the
parties' agreement. The Agency maintains that the Agency's actions and
the Arbitrator's award are consistent with the FPM because racial
epithets are not the sort of minor acts of misconduct discussed in FPM
Letter 751-2. Finally, the Agency asserts that it considered the
factors set forth by the Merit Systems Protection Board (MSPB) in
Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas) when the
Agency determined the appropriate penalty for the grievant's misconduct.
The Agency maintains that the evidence adduced at the arbitration
hearing made it clear that the Agency had complied with the Douglas
factors.
We construe the Union's arguments that the award "violates" Article
30 of the collective bargaining agreement as a contention that the award
fails to draw its essence from the parties' agreement. To establish
that an award is deficient because it does not draw its essence from an
agreement, the party making the allegation must demonstrate 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 purposes of the agreement, as to manifest an infidelity to
the obligation of the arbitrator; (3) evidences a manifest disregard to
the agreement; or (4) does not represent a plausible interpretation of
the agreement. For example, U. S. Department of Transportation,
Maritime Administration, James River Reserve Fleet and National
Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216
(1990).
The Union has not demonstrated that the award is deficient under any
of these tests. Instead, we conclude that the Union's argument is an
attempt to relitigate the merits of the grievance before the Authority
and constitutes mere disagreement with the Arbitrator's decision that
the Agency did not violate the agreement when it suspended the grievant
because of the egregious nature of his misconduct. Disagreement with an
arbitrator's evaluation of evidence and findings and conclusions based
thereon provides no basis for finding an award deficient. U.S.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and American Federation of Government Employees,
Local 1336, 37 FLRA 766, 774 (1990). Accordingly, this exception does
not establish that the award is deficient.
The Union's contentions regarding FPM letter 751-2 are similarly
without merit. The Union is apparently claiming that Section IV.A. of
the letter relating to employee "conduct requiring lesser disciplinary
action" requires progressive discipline. FPM Letter 751-2, Section IV.
A. provides in pertinent part: "Many incidents of conduct are
relatively minor, such as tardiness, rudeness to a fellow employee, . .
. etc. They may require no more than informal discussion with an
employee, . . . or a warning. . . . If misconduct continues, (the
Agency) should consider some disciplinary action such as . . . a
suspension of 14 days or less."
Nothing in the FPM letter requires an Agency to refrain from
suspending an employee for even a "minor" offense. Rather, it is
suggested that such offenses may require less severe discipline.
Moreover, in this case, the Arbitrator concluded that the grievant's
conduct was egregious, not merely minor rudeness, and was part of an
ongoing pattern of similar behavior. Accordingly, it is clear that the
Arbitrator's award is not contrary to FPM letter 751-2, and the Union's
exception does not provide a basis for finding the award deficient.
Finally, contrary to the Union's assertion, the Arbitrator was not
required in this case to consider the Douglas factors enunciated by the
MSPB. We have repeatedly held that arbitrators are not bound by the
same substantive standards as the MSPB when resolving grievances over
actions not covered by 5 U.S.C. Sections 4303 and 7512. For example,
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, 932 (1990).
Furthermore, although he did not consider expressly and specifically the
so-called Douglas factors, the Arbitrator did specifically consider the
appropriateness of the penalty assessed and found that the 14-day
suspension was warranted. The Union fails to establish otherwise, and
its contentions provide no basis for finding the award deficient. See
Veterans Administration Medical Center, Birmingham, Alabama and American
Federation of Government Employees, Local 2207, 35 FLRA 553, 559 (1990).
Accordingly, we will deny the Union's exceptions.
The Union's exceptions are denied.
40 FLRA 492
40 FLRA NO. 46
Naval Hospital, San Diego, California and AFGE, Case No. 8-CA-90627
(Decided April 29, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by refusing to provide to the Union the names and home
addresses of bargaining unit employees. The Authority found irrelevant
the Respondent's argument that OPM's routine use notice does not apply
to the system of records that will be used to supply the Union with the
requested information.
Case No. 8-CA-90627
NAVAL HOSPITAL SAN DIEGO, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(Charging Party)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The Respondent and the General Counsel filed
briefs with the Authority.
The complaint alleges that the Respondent 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 Charging
Party (the Union) with the names and home addresses of bargaining unit
employees represented by the American Federation of Government
Employees, AFL-CIO, Local 1214 (the Local).
For the following reasons, we find that the Respondent committed the
unfair labor practice as alleged.
The Local is the exclusive representative of a unit of employees
employed by the Respondent. On August 3, 1989, the Union, on behalf of
the Local, requested the names and home addresses of bargaining unit
employees. By letter dated September 5, 1989, the Respondent denied the
Union's request.
The parties stipulated that, within the meaning of section 7114(b)(
4) of the Statute, the requested names and home addresses are normally
maintained by the Respondent in the regular course of business, are
reasonably available, and do not constitute guidance, counsel or
training provided to management officials or supervisors relating to
collective bargaining.
A. Respondent
The Respondent contends that the disclosure of the employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 552a, and
that the information requested has not been established to be necessary,
within the meaning of section 7114(b)(4) of the Statute, for discharge
of the Union's representational responsibilities.
The Respondent asserts that release of the requested information is
not a permitted routine use of that information under its regulations or
under Office of Personnel Management (OPM) regulations. The Respondent
claims that the system of records that will be used to supply the Union
with the requested information "is a Navy system of records(,) not an
OPM system(.)" Respondent's Brief at 1. The Respondent argues that "the
routine use disclosure provisions of the applicable Navy system of
records (do) not permit, but rather preclude(), the disclosure of
employee home addresses to unions, especially if there are alternative
means of communications available to the labor organizations." Id.
The Respondent incorporated in, and attached to, its statement a
brief filed by the U.S. Department of Justice in the U.S. Court of
Appeals for the First Circuit in U.S. Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990)
(Portsmouth Naval Shipyard), application for enforcement filed sub nom.
FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990). In that
brief, the Department of Justice argues that (1) employee home addresses
may not be disclosed from official personnel files pursuant to the
routine use notice published by OPM, and (2) the OPM routine use notice
does not apply to "the Department of the Navy payroll system of records,
which would probably be the most accurate source of employees' current
home addresses." Attachment to Respondent's Brief at 44 n.38.
B. General Counsel
The General Counsel argues that the Authority's decisions in
Portsmouth Naval Shipyard and Farmers Home Administration Finance
Office, St. Louis, Missouri, 23 FLRA 788 (1986) (Farmers Home) are
dispositive of the issue in the case. Noting that the Respondent
concedes that the requested information is normally maintained by the
Respondent in the regular course of business, is reasonably available,
and does not constitute guidance, advice, counsel or training provided
for management officials or supervisors, within the meaning of section
7114(b)(4), the General Counsel asserts that the Respondent's admitted
failure to furnish the Union with the requested information violates
section 7116(a)(1), (5), and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available to the Respondent, and does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining. Accordingly, based on
the Authority's decision in Portsmouth Naval Shipyard, we conclude that
the Respondent violated section 7116(a)(1), (5), and (8) of the Statute
by failing to furnish the Union with the names and home addresses of
unit employees represented by the Union.
We note, in this regard, the Respondent's argument that OPM's routine
use notice does not apply to the "system of records that will be used to
supply the union with the requested information . . . ." Respondent's
Brief at 1. The Respondent does not specify the system of records to
which it refers. Read in light of the Department of Justice brief
attached to, and incorporated in, the Respondent's brief, however, we
construe the Respondent's argument to be that the requested information
would be supplied from the Respondent's payroll records because official
personnel files, which are subject to the OPM's routine use notice, are
not the most accurate source of current home addresses.
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice. See U.S. Naval
Ordnance Station, 40 FLRA No. 34 (1991), slip op. at 3-4.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Hospital, San Diego, California shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, the names and home addresses of all
employees in the bargaining unit represented by the American Federation
of Government Employees, AFL-CIO, Local 1214.
(b) 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) Furnish the American Federation of Government Employees, AFL-CIO,
the names and home addresses of all employees in the bargaining unit
represented by the American Federation of Government Employees, AFL-CIO,
Local 1214.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO,
Local 1214 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 Commanding Officer and shall be
posted in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, the names and home
addresses of all employees in the bargaining unit represented by the
American Federation of Government Employees, AFL-CIO, Local 1214.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, the names and home addresses of all employees in the bargaining
unit represented by the American Federation of Government Employees,
AFL-CIO, Local 1214.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
40 FLRA 479
40 FLRA NO. 45
NAGE, Local R12-33 and Dept. of the Navy, Pacific Missile Test
Center, Point Mugu, California, Case No. 0-NG-1761 (Decided April 26,
1991)
7105(a)(2)(E)
7106(b)(1)
7106(a)(2)(B)
7106(b)(2)
7106(b)(3)
NEGOTIABILITY DETERMINATION
TOUR OF DUTY
PLACE OF DUTY STATUS
GOVERNMENT VEHICLES TO OBTAIN MEALS
EATING MEALS IN GOVERNMENT VEHICLES OR AT DINING FACILITIES
NUMBERS, TYPES AND GRADES
ASSIGN WORK
NEGOTIABLE PROCEDURES
APPROPRIATE ARRANGEMENTS
ARGUMENTS PROPERLY BEFORE AUTHORITY
31 U.S.C. 1344
The appeal concerns the negotiability of a proposal which would: (1)
define the tour of duty for police officers as an 8-hour day and place
employees in a duty status for the entire 8 hours; (2) allow employees
to use Government vehicles to obtain their meals; and (3) allow
employees to eat their meals in the Government vehicles or at any dining
facility at the Naval Air Station.
The Authority concluded that the second and third sentences of the
proposal which define tour of duty, directly interfere with management's
right to determine the numbers, types and grades of employees assigned
to a tour of duty under section 7106(b)(1). Those sentences also
directly interfere with management's right to assign work under section
7106(a)(2)(B). The Authority further concluded as to the portions of
the proposal defining tour of duty that it did not constitute a
negotiable procedure under 7106(b)(2) and that the Union's argument
concerning 7106(b)(3), appropriate arrangements, was not properly before
it. In this latter regard, the Authority noted, first, that the Union
had effectively withdrawn any assertion that the language of the
proposal was intended to be an appropriate arrangement. Further, the
additional matters raised constitute new proposals not properly before
the Authority. "There is no indication in the record that these new
proposals were ever the subject of negotiations or presented to the
Agency for a declaration of nonnegotiability."
The Authority concluded that the sentences which would allow police
officers who are in a duty status for an entire 8-hour shift to use
Government vehicles to obtain their meals as long as such use is
incidental to their patrol duties and which would allow them to eat
their meals in the vehicles or at any dining facility "aboard" the Naval
Air Station, to be inconsistent with 31 U.S.C. 1344, which requires that
the use of Government vehicles be for official business. The Authority
noted that this case 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. 1344.
Case No. 0-NG-1761
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R12-33
(Union)
U.S. DEPARTMENT OF THE NAVY PACIFIC MISSILE TEST CENTER POINT MUGU,
CALIFORNIA
(Agency)
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 a proposal which would: (1) define the tour of
duty for police officers as an 8-hour day and place employees in a duty
status for the entire 8 hours; (2) allow employees to use Government
vehicles to obtain their meals; and (3) allow employees to eat their
meals in the Government vehicles or at any dining facility at the Naval
Air Station.
For the reasons which follow, we find that the portions of the
proposal establishing an 8-hour daily tour of duty and placing the
employees in a duty status for the entire 8-hour shift are outside the
duty to bargain because they directly interfere with management's rights
under sections 7106(a)(2)(B) and 7106(b)(1) of the Statute.
Additionally, we find that they do not constitute negotiable procedures
under section 7106(b)(2) of the Statute or appropriate arrangements
under section 7106(b)(3) of the Statute. In this latter regard, we find
that the matters raised by the Union are not properly before us for
review.
The portions of the proposal allowing employees to use Government
vehicles for obtaining and eating meals is nonnegotiable because it
conflicts with 31 U.S.C. Section 1344. The portion of the proposal
allowing employees to eat at any dining facility aboard the Naval Air
Station has not been addressed by the parties and we make no findings as
to its negotiability.
Accordingly, we will dismiss the petition for review.
(1) The normal pattern of work within the Patrol Branch consists
of a three (3) shift system. (2) A "tour of duty" for police
officers is defined as eight (8) hours per day, five (5) days per
work week. (3) The employee is in a "duty status" for the entire
eight (8) hour shift. (4) Employees on duty status for an entire
eight (8) hour shift shall be able to use their government
vehicles to obtain their meals as long as such use is incidental
to their patrol duties. (5) The employees will be able to either
eat in their vehicle or eat at any dining facility aboard the
Naval Air Station. (Only the underscored portions of the proposal
are in dispute.) III. Positions of the Parties
A. The Agency
The Agency argues that the second and third sentences of the proposal
are outside the duty to bargain for two reasons: (1) they conflict with
section 7106(b)(1) of the Statute by requiring a new tour of duty for
the covered employees; and (2) they interfere with management's right
to assign work under section 7106(a)(2)(B) of the Statute. The Agency
also argues that the fourth and fifth sentences of the proposal violate
31 U.S.C. Section 1344 by authorizing the use of a Government vehicle
for other than official purposes.
With regard to its contention that the second and third sentences of
the proposal are negotiable only at the election of the Agency, the
Agency argues that the proposal "would bring about a reduction in the
tour of duty by one half hour each day and result in the employees . .
. being assigned to a new tour of duty." Statement of Position at 3.
The Agency also claims that the proposal would reduce the length of the
existing tour of duty by 30 minutes and would, thereby, change the
starting and ending times of the shift. The Agency further asserts that
the proposed change would eliminate the overlap of shifts which exists
with the current daily tour of duty of 8 and 1/2 hours. The Agency
contends, therefore, that the proposal would change the current tour of
duty and is negotiable only at the election of the Agency under section
7106(b)(1) of the Statute. In support of its position, the Agency
relies on Department of the Air Force, Scott Air Force Base, Illinois,
33 FLRA 532 (1988) (Scott Air Force Base). The Agency also
distinguishes this case from National Association of Government
Employees, Local R14-8 and Veterans Administration Medical Center
Topeka, Kansas, 24 FLRA 126 (1986) (Veterans Administration Medical
Center, Topeka, Kansas).
The Agency also argues that the second and third sentences of the
proposal do not constitute a negotiable procedure under section 7106(
b)(2) of the Statute. The Agency argues that as the proposal "would
require establishment of a new tour of duty and assignment of employees
to that tour(,)" the proposal directly interferes with section 7106(b)(
1). Statement of Position at 6. Similarly, the Agency argues that this
portion of the proposal does not constitute an appropriate arrangement
under section 7106(b)(3) of the Statute. In this regard, the Agency
states that "(t)he union provided no explanation as to how this proposal
could be considered an appropriate arrangement . . . ." Id. Instead,
the Agency argues that the second and third sentences of the proposal
would "totally abrogate" management's rights under section 7106(b)(1)
since management "would be precluded from assigning employees to any
tour of duty other than the eight-hour tour contained in (the)
proposal." Id. at 7.
The Agency also argues that the second and third sentences of the
proposal violate management's right to assign work under section 7106(
a)(2)(B) of the Statute. More specifically, the Agency asserts that the
right to assign work includes "the right not to assign duties to a
specific individual . . . (and) not to assign work to individuals for a
period of time during the tour of duty . . . ." Id. at 5 (emphasis in
original). The Agency argues that this portion of the proposal is
outside the duty to bargain because it "would require management to
maintain security personnel in a duty status and assign work during the
entire tour of duty, without a nonduty lunch break(.)" Id.
Finally, the Agency addresses the fourth and fifth sentences of the
proposal, concerning the use of Government vehicles. According to the
Agency, these portions of the proposal relate to management's agreement
to an 8-hour tour of duty. The Agency argues, however, that such a
matter is negotiable only at the election of the Agency and the Agency
has elected not to bargain.
The Agency also addresses the fourth and fifth sentences, however, in
the context of the current 8 and 1/2 hour workday. The Agency argues
that providing employees with the use of Government vehicles to obtain
meals and in which to eat meals is inconsistent with 31 U.S.C. Section
1344, which restricts the use of Government vehicles to "official
purposes." The Agency argues that the employees are not in an official
duty or pay status during their 1/2 hour lunch periods. Therefore, the
use of Government vehicles to obtain and in which to eat meals cannot be
considered work, and does not meet the definition of "official purposes"
within the meaning of 31 U.S.C. Section 1344.
B. The Union
The Union contends that the second and third sentences of the
proposal do not seek to change the employees' tour of duty but, rather,
concern "a change in the practice regarding lunch hours(.)" Response at
3. The Union asserts that employees actually perform work during their
nonpaid lunch periods without being compensated and that the "Union
sought negotiation for an eight-hour day in which the employee was in
'duty status' for the entire shift to address the hardship being
experienced by security personnel." Memorandum in Support of Petition
for Review at 3. The Union states that under the proposal employees
will continue to perform their duties during the 8 hour shift and that
"(i)t is understood that security personnel will take their meal break
when time permits during the eight hour shift." Id. at 6. Consequently,
the Union maintains that the proposal is concerned only with when
employees will take their meals and, as such, is a negotiable matter.
In support, the Union relies on Veterans Administration Medical Center,
Topeka, Kansas and other Authority decisions concerning the time at
which lunch can be observed. The Union also argues that Scott Air Force
Base is not applicable to this proposal.
In its petition for review, the Union also argued that if the
Authority finds the proposal to constitute a change in the employees'
tour of duty, then the proposal should be viewed as a negotiable
procedure and an appropriate arrangement under sections 7106(b)(2) and
7106(b)(3) of the Statute. In its response to the Agency's statement of
position, however, the Union states that it "was not arguing that the
proposal at issue as (sic) an appropriate arrangement." Response at 6.
Rather, the Union states that if the Authority finds the proposal to be
negotiable at the election of the Agency, then the Union "requests
bargaining over when the half-hour is taken by the employees." Id. The
Union adds that "(a)llowing the employees flexibility regarding when
they take the meal period is an 'appropriate arrangement' . . . ." Id.
at 7. The Union further states that "another appropriate arrangement
would be compensation . . ." for the time during which employees work
through their meals. Id.
The Union also argues that the proposal does not interfere with the
Agency's right to assign work under section 7106(a)(2)(B). In this
connection, the Union asserts that the proposal does not require
management to assign specific tasks to employees, and does not affect
management's decision not to assign work to employees.
Finally, the Union contends that the fourth and fifth sentences of
the proposal would place employees in a duty status for the entire
shift. Therefore, the use of Government vehicles by employees to obtain
meals, and in which to eat meals, is official business and is consistent
with 31 U.S.C. Section 1344. In support of this position, the Union
cites Lynch v. Department of Justice, 32 MSPR 33 (1986) (Lynch). The
Union also asserts that even if the proposal is found to be negotiable
only at the election of the Agency, the use of Government vehicles
during the 30-minute lunch period is authorized because employees are on
duty during that time, and the vehicle would then be used "for official
business." Response at 7-8. The Union also contends that the employees
are subject to disparate treatment by the Agency because other
individuals -- namely, military police officers -- are permitted to use
their vehicles to obtain lunch. By contrast, the employees here must
turn in their Government vehicles, prior to the lunch periods, and then
use their privately owned vehicles to obtain lunch.
A. The Second and Third Sentences of the Proposal Directly Interfere
with Management's Right to Determine the Numbers, Types, and Grades of
Employees Assigned to a Tour of Duty Under Section 7106(b)(1)
The second and third sentences of the proposal would define the daily
tour of duty for police officers as 8 hours per day, during which
employees would be in a duty status. The existing daily tour of duty
consists of 8 and 1/2 hours, which includes a nonpaid 30-minute meal
period.
The Union claims that the proposal does not attempt to change the
employees' tour of duty but, rather, concerns a change in employee lunch
hours. We disagree.
The Authority has held that an agency's right to determine the
numbers, types, and grades of employees assigned to a tour of duty under
section 7106(b)(1) encompasses the right to determine the number of
employees it considers necessary to have on duty. See National Weather
Service Employees Organizatio and U.S. Department of Commerce, National
Oceanic and Atmospheric Administration, National Weather Service, 37
FLRA 392, 400 (1990) (National Weather Service). The Authority also has
held that the right to determine the number of employees necessary to
have on duty encompasses the right to determine whether, and to what
extent, various work shifts will overlap. In National Weather Service,
for example, the Authority found that a change in starting and quitting
times which reduced the overlap between two shifts and created an
overlap between other shifts involved a determination as to the numbers
of employees assigned to a tour of duty. In Veterans Administration,
Washington, D.C., 30 FLRA 961, 966 (1988), the Authority found that an
agency's decision to reduce the length of the workweek, ending a 12-hour
overlap on shifts each week, involved management's right to determine
the number of employees assigned to a tour of duty.
In this case, the Agency argues, without contradiction, that the
second and third sentences of the proposal would eliminate the overlap
between shifts. We find that the elimination of the overlap would
affect the number of employees assigned to a tour of duty. The second
and third sentences of the proposal would prevent the Agency from
determining how many employees it considers necessary to have on a tour
of duty and, in this manner, directly interfere with management's right
to determine the numbers, types and grades of employees assigned to a
tour of duty within the meaning of section 7106(b)(1) of the Statute.
The Union argues that the proposal here is analogous to that in
Veterans Administration Medical Center, Topeka, Kansas and other cases
concerning the time at which lunch can be observed. The Union's
arguments are without merit. The proposal here does more than simply
address when, during an established workday, employees may take their
meal breaks. The proposal here would reduce the workday by eliminating
the nonpaid meal period, thus creating a new tour of duty. The
establishment of the new tour of duty, with the concomitant elimination
of the overlap period is a matter falling within section 7106(b)(1) and
does not involve merely when meal periods will be observed. See also
Scott Air Force Base (the Authority found that a change in an employee's
starting and quitting times created a new tour of duty within the
meaning of section 7106(b)(1)).
We note, also, that the second and third sentences of the proposal
are distinguishable from proposals recently addressed by the Authority.
In American Federation of Government Employees, Local 1940 and U.S.
Department of Agriculture, Agricultural Research Service, Plum Island
Animal Disease Center, 37 FLRA 1058, 1061-62 (1990), the union sought to
reduce the lunch period of the day shift from 1 hour to 1/2 hour. We
found that the proposal did not change the employees' tour of duty
because the agency could retain the existing tour and, further, that the
proposal did not, in any way, restrict the agency's right to determine
the number of employees it considered necessary to have on duty.
Similarly, in National Federation of Federal Employees, Local 2058 and
U.S. Department of the Army, Aberdeen Proving Ground Support Activity,
Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1393-97 (1991), we
found that Proposal 1, involving the assignment of employees to fixed
shifts and rotating days off did not prevent the agency from determining
the numbers, types, and grades of employees assigned to particular tours
of duty. Here, however, the second and third sentences of the proposal
would eliminate the overlap between shifts, thereby preventing the
Agency from determining the number of employees it considers necessary
to have on duty.
In sum, we conclude that the second and third sentences of the
proposal directly interfere with the exercise of management's discretion
to determine the numbers, types, and grades of employees assigned to a
tour of duty within the meaning of section 7106(b)(1) of the Statute.
B. The Second and Third Sentences of the Proposal Directly Interfere
With Management's Right to Assign Work Under Section 7106(a)( 2)(B)
It is well established that management's right to assign work under
section 7106(a)(2)(B) of the Statute includes the right to determine the
particular duties to be assigned, when work assignments will occur, and
to whom or what position the duties will be assigned. See National
Weather Service, 37 FLRA at 399.
In National Weather Service, we discussed the effect of a change in
tours of duty on the exercise of management's right to assign work, as
well as the effect on management's right to determine the numbers,
types, and grades of employees assigned to a tour of duty, as discussed
above. We found that the decision to change the starting and quitting
times of the day shift constituted an exercise of the agency's right to
assign work because the agency had the right to determine when the
duties of the day shift would be performed and when, and to what extent,
it would be necessary for the duties of the day shift to overlap with
the duties of other shifts.
Like the situation in National Weather Service, the proposal here
would eliminate the overlap between shifts, thereby preventing the
Agency from determining when the duties of the shifts are to be
performed, and the extent to which it is necessary that the duties of
one shift overlap with the duties of another shift. For example, if
there are particular duties that need to be performed at times falling
within the overlap period, management would be unable to assign those
duties to the employees who previously were available during that time
period. Additionally, the proposal would require all the duties that
are currently performed to be assigned within an 8-hour period, without
regard to whether some or all of the duties need to be performed at
another time of day. Moreover, as the Agency argues, management has the
right not to assign work. By requiring that duties be assigned during
an 8-hour tour of duty, the proposal would prevent management from
determining not to assign work during what is currently the employees'
meal period.
Based on the foregoing, we conclude that the proposal directly
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute.
C. The Second and Third Sentences of the Proposal Do Not Constitute
a Negotiable Procedure Under Section 7106(b)(2)
As noted, the second and third sentences of the proposal directly
interfere with management's right to determine the numbers, types and
grades of employees assigned to a tour of duty under section 7106(b)(1)
of the Statute. These sentences also directly interfere with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
The Authority has held that proposals which directly interfere with
the exercise of a management right do not constitute negotiable
procedures under section 7106(b)(2) of the Statute. See, for example,
American Federation of Government Employees, Local 2879 and U.S.
Department of Health and Human Services, Social Security Administration,
Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990);
American Federation of Government Employees, Council 214 and Department
of the Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 34 FLRA 977, 984 (1990). As the second and third
sentences of the proposal conflict with the exercise of management
rights, they do not constitute a negotiable procedure within the meaning
of section 7106(b)(2).
D. The Union's Argument Concerning Section 7106(b)(3) is Not
Properly Before the Authority
The Union's argument that the second and third sentences of the
proposal constitute an appropriate arrangement is not properly before
us. We note, first, that the Union has effectively withdrawn any
assertion that the language of the proposal was intended to be an
appropriate arrangement. In this connection, and in response to the
Agency's statement of position, the Union indicated that it was
requesting bargaining over procedures and appropriate arrangements if
the Authority were to find the proposal negotiable only at the election
of the Agency. The Union then added that it was not arguing that the
proposal at issue was an appropriate arrangement. Instead, the Union
identified other matters over which it was requesting bargaining. These
other matters relate to the continuation of the existing 8 and 1/2 hour
tour of duty and pertain, specifically, to when the 1/2 hour meal period
will be taken by employees and appropriate compensation for employees
who work during their meal periods.
These additional matters essentially constitute new proposals that
are not properly before us. Section 7117(c) of the Statute entitles a
union to appeal an agency's allegation that the duty to bargain in good
faith does not extend to matters proposed to be bargained. See also
section 2424.1 of the Authority's Rules and Regulations, prescribing the
conditions governing review of negotiability issues. There is no
indication in the record that these new proposals were ever the subject
of negotiations or presented to the Agency for a declaration of
nonnegotiability. Consequently, these matters are not properly before
us for a determination as to whether they would constitute negotiable
appropriate arrangements. /2/
E. The Fourth and Fifth Sentences of the Proposal Are Inconsistent
with 31 U.S.C. Section 1344
The fourth and fifth sentences of the proposal would allow police
officers who are in a duty status for an entire 8-hour shift to use
Government vehicles to obtain their meals as long as such use is
incidental to their patrol duties. This portion of the proposal also
would allow police officers to eat their meals in the vehicles or at any
dining facility "aboard" the Naval Air Station.
31 U.S.C. Section 1344 governs the use of passenger vehicles owned by
the Government and prescribes the circumstances under which funds may be
expended for the operation, maintenance and repair of passenger vehicles
that are used for "official purposes."
The Union argues that the fourth and fifth sentences of the proposal
are consistent with law because if the employees are in a duty status
for an entire 8-hour shift, the employees are on official business. The
Union argues, alternatively, that if the proposal is found to be
negotiable only at the election of the Agency, the use of Government
vehicles during the 30-minute lunch period is authorized because
employees work during their meal periods, and the use of the vehicle
would be for official business. In this connection, the Union states
that police officers are always on duty in that they maintain radio
contact with the field, complete paper work, and respond to emergency
calls. The Union also asserts that the employees are subject to
disparate treatment compared with military police officers who use their
vehicles to obtain meals.
The Agency initially claimed that these sentences were tied to
management's agreement to an 8-hour tour of duty, which was a matter
falling within section 7106(b)(1) of the Statute. The Agency also
argues, assuming the continuation of the existing 8 and 1/2 hour tour of
duty, that employees are not in an official duty or pay status during
their 1/2 hour lunch periods. Therefore, the use of Government vehicles
is not an official purpose. Finally, the Agency notes that the Union
did not define the circumstances under which the use of a Government
vehicle would be incidental to the employees' duties, as stated in the
proposal. The Agency asserts that the Union's intent is to allow
employees to use vehicles to obtain lunch on a daily basis and that
"(i)t is difficult to conceive that, on a daily basis, it would be
'incidental' for all security personnel to use their government vehicles
to obtain and eat their lunch." Statement of Position at 9.
The language of the proposal clearly provides that the use of
Government vehicles will be available to employees who are on duty
status for an entire 8-hour shift. To the extent that we have found the
proposed 8-hour tour of duty to be outside the duty to bargain, the
sentences authorizing the use of Government vehicles in such an 8-hour
tour of duty would also be nonnegotiable.
We note, however, that the parties have made alternative arguments
based on the continuation of the existing 8 and 1/2 hour tour of duty.
To the extent the parties have given independent meaning to the fourth
and fifth sentences of the proposal, and their alternative arguments are
consistent with the maintenance of the existing 8 and 1/2 hour shift, we
will address the parties' contentions. Compare, International
Federation of Professional and Technical Engineers, Local 4 and
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 35 FLRA 31, 35 (1990) (Authority will not base negotiability
determinations on a union's statement of intent which is inconsistent
with the plain wording of a provision).
We find, in agreement with the Agency, that the circumstances of this
case do not establish that the use of Government vehicles would be for
official purposes within the meaning of 31 U.S.C. Section 1344.
Under the existing 8 and 1/2 hour tour of duty, employees are in a
nonpaid status during a 30-minute meal period. The Union states that
during the meal period, "(g)enerally, security personnel eat in the
trailer, behind the security office, provided by the Employer."
Memorandum in Support of Petition for Review at 4.
The language of the proposal would authorize the use of Government
vehicles whenever the use is incidental to patrol duties. The Union,
however, has not defined what is meant by "incidental to patrol duties"
or who would make such determinations. In our view, the proposal would
allow employees to use Government vehicles on a daily basis when, in the
employees' view, such use is incidental to their duties. The proposal
is not limited to situations where employees are using their vehicles
while engaged in the performance of duties when the meal period arises.
In such a situation, it might be both advantageous to the Agency and
sensible to the employee to allow that employee to remain in the vehicle
for the purpose of eating or to obtain lunch at what may be a nearby
food service facility. We find little support for the Union's assertion
that employees work during their meal periods and, therefore, the use of
vehicles would be for official purposes. It is not apparent to us that
employees would be able to respond to emergencies, for example, if they
were out of their vehicles obtaining lunch, or that employees would be
able to complete paper work while travelling to obtain lunch.
Consequently, we find that as the fourth and fifth sentences of the
proposal would require the Agency to allow employees to use Government
vehicles for other than official purposes, this portion of the proposal
is inconsistent with 31 U.S.C. Section 1344. Therefore, it is
nonnegotiable.
In reaching our conclusion that the proposal is not consistent with
31 U.S.C. Section 1344, we note that this case 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. In this
regard, the Union's reliance on Lynch is misplaced. In that case, an
employee was engaged in intrastate travel on official business. The
employee was found not to have misused a Government vehicle when he
stopped en route for dental appointments, because the primary use of the
vehicle was for official business. This case also does not present a
situation where, for example, employees may be unexpectedly detained at
the work site or work in remote locations where the use of a Government
vehicle properly may be authorized.
The Union's additional contention that the employees are subject to
disparate treatment because military police officers use their vehicles
to obtain lunch does not, in our view, serve as a basis on which to find
the proposal consistent with law.
Finally, we note that neither party has made any arguments with
regard to the portion of the fifth sentence which would allow employees
to eat at any dining facility "aboard" the Naval Air Station. It is not
clear from the language of the proposal whether the use of dining
facilities is contingent on the use of Government vehicles or whether
the parties intended to give the language independent meaning. The
parties bear the burden of creating a record upon which we can base a
negotiability determination. See National Association of Government
Employees, Local R1-109 and U.S. Department of Veterans Affairs,
Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA
513, 518 (1990). In the absence of any arguments from the parties as to
the nature and effect of this portion of the fifth sentence, we make no
findings as to its merits.
The petition for review is dismissed.
(1) For ease of decision, each sentence has been numbered separately.
(2) In view of the fact that the Union's assertions concerning
section 7106(b)(3) are not before us, and in view also of our earlier
conclusion that the proposal directly interferes with sections 7106(b)(
1) and 7106(a)(2)(B), we need not address whether the Agency could
lawfully compensate employees for periods of time spent obtaining and
eating meals, during which the employees are claimed to be in a duty
status. Compare National Association of Government Employees, Local
R1-109 and Veterans Administration, Veterans Administration Medical
Center, Newington, Connecticut, 37 FLRA 448, 452 (1990), in which we
discussed the statutory and regulatory requirements regarding break
periods during the workday, and in which we referenced an earlier
Authority finding that time set aside for eating is not considered hours
of work under 5 U.S.C. Section 6101 for purposes of fulfilling the
statutory requirement for a 40-hour workweek.
40 FLRA 469
40 FLRA NO. 44
Internal Revenue Service, Headquarters and Internal Revenue Service,
Detroit District, Detroit, Michigan and NTEU and NTEU, Chapter 24, Case
No. 5-CA-00476 (Decided April 26, 1991)
7116(a)(1)
UNFAIR LABOR PRACTICE
STATEMENT DURING ARBITRATION HEARING
The Authority adopted the Judge's recommendation that the Respondent
did not violate the Statute when an inspector from the Respondent's
Inspection Service stated, while testifying at the grievant's
arbitration hearing, that if the arbitrator reversed the agency's
discharge of the grievant, the Respondent would pursue other avenues,
including the referral of the matter to the U.S. Attorney for criminal
prosecution. The Authority noted its rejection of the General Counsel's
and Charging Party's assertion that a cited decision of the Supreme
Court reviewing an NLRB decision compels a conclusion that the
Respondent violated the Statute. The Authority stated that in the case
before them, the Judge applied long-standing Authority precedent in
reaching his conclusion and that the case relied on provides no basis
for reversing the Judge's conclusion.
Case No. 5-CA-00476
INTERNAL REVENUE SERVICE, HEADQUARTERS AND INTERNAL REVENUE SERVICE,
DETROIT DISTRICT, DETROIT, MICHIGAN
(Respondent/Agency)
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 24
(Charging Party/Union)
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 did not violate
section 7116(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute). The complaint alleges that the Respondent
violated section 7116(a)(1) when an inspector from the Respondent's
Inspection Service stated, while testifying at the grievant's
arbitration hearing, that if the arbitrator reversed the agency's
discharge of the grievant, the Respondent could pursue other avenues,
including the referral of the matter to the U.S. Attorney for criminal
prosecution. The General Counsel and the Union filed exceptions to the
Judge's decision. The Respondent filed an opposition to the General
Counsel's and the Union'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 and the entire record, we adopt the Judge's findings,
conclusions, and recommended Order. /*/
The complaint is dismissed.
Case No. 5-CA-00476
INTERNAL REVENUE SERVICE HEADQUARTERS, /1/ AND INTERNAL REVENUE
SERVICE, DETROIT DISTRICT, DETROIT, MICHIGAN
Respondent
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 24
Charging Party
James E. Rogers, Jr., Esq., For the Respondent
John F. Gallagher, Esq., For the General Counsel
Randi Warshall, For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on August 29,
1990, by the Regional Director for Region V, Federal Labor Relations
Authority, a hearing was held before the undersigned on November 15,
1990 at Detroit, Michigan.
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101, et seq., (herein called the Statute).
It is based on an amended charge filed on July 20, 1990 by National
Treasury Employees Union and National Treasury Employees Union, Chapter
24 (herein collectively called the Union) against Internal Revenue
Service, Detroit District, Detroit, Michigan. /2/
The Complaint alleged, in substance, that at an arbitration hearing
on April 6, 1990, held pursuant to negotiated grievance/arbitration
procedures, Respondent, by its agent Shirley L. Gatliff, testified that
if the grievant's removal by Respondent was reversed, Respondent could
pursue other avenues, including the referral of the matter to the U.S.
Attorney for criminal prosecution -- all in violation of section 7116(
a)(1) of the Statute.
Respondent's Answer, dated September 21, 1990, denies that Shirley L.
Gatliff was employed by Respondent and acted as its agent or on its
behalf with respect to the conduct alleged in the Complaint. It also
denied the conduct attributed to Respondent, as aforesaid, on April 6,
1990 at the arbitration hearing as well as the commission of any unfair
labor practices.
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. /3/
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 National Treasury Employees
Union has been, and still is, the exclusive bargaining representative of
a nationwide unit of Internal Revenue Service employees, which unit
includes the employees of the Internal Revenue Service, Detroit
District, Detroit, Michigan.
2. At all times material herein the Internal Revenue Service and the
National Treasury Employees Union were parties to a master collective
bargaining agreement which covered the unit employees of the Detroit
District office. The said agreement contained a grievance/ arbitration
procedure upon the filing of grievances for, or on behalf of unit
employees.
3. The Central Region of the Internal Revenue Service at Cincinnati,
Ohio is composed of several District offices, one of which is the
Detroit District, Detroit, Michigan. The Detroit District Director
reports to the Regional Commissioner, and the latter reports to the
Internal Revenue Service /4/ Headquarters' Commissioner.
4. IRS maintains an Internal Security Division which includes an
Inspection Service. The Inspection Branch reports to the Regional
Inspector who reports to the Assistant Commissioner of Inspectors. /5/
The Inspection Service ultimately reports to the IRS Headquarters'
Commissioner.
5. In March 1989 Elizabeth Khamati was employed in the IRS Detroit
District Office as a revenue officer. On March 13, 1989 she was
notified of an intention to discharge her for falsifying an application
form by stating she was a naturalized citizen. Prior to any action
being taken against Khamati, the IRS assigned Shirley Gatliff, who was
stationed at the Detroit District Office, to conduct an investigation of
the alleged falsification. As a result of Gatliff's investigation,
which was conducted at the request of the Detroit District Office, the
agency discharged employee Khamati.
6. Gatliff became an inspector about one year prior to the hearing
herein and has continued to act in that capacity. As an inspector she
conducts criminal and administrative investigations of IRS employees re
allegations made against them. Although employed by IRS, Gatliff does
not come under the supervision of the Detroit District Office. A report
of an investigation prepared by Gatliff is not done for the District
Director, but he is given a copy. As an inspector, Gatliff may refer
cases to the Assistant U.S. Attorney under 18 USC 1001 -- the false
statement criminal violation statute. Usually, however, cases are
handled administratively. In this instance, IRS declined to seek
criminal prosecution of Khamati after the initial investigation was made
concerning her conduct.
7. Subsequent to Khamati's discharge in March 1989, she filed a
grievance pursuant to the negotiated grievance procedure. /6/ It was
denied and an appeal filed with the Merit Systems Protection Board. The
matter was then submitted to arbitration and a hearing was held before
an arbitrator on April 6, 1989.
8. At the arbitration hearing Gatliff was called upon to testify re
the alleged misconduct by Khamati and the procedure pursued during and
after an investigation thereof. She testified that initially a matter
of this nature is handled administratively. If not resolved, the U.S.
Attorney's office is consulted and the matter is discussed with the U.
S. Attorney. Gatliff further testified that on April 5 she conferred
with the U.S. Attorney to ascertain whether he would accept the case
involving Khamati.
9. The relevant and material testimony given by Gatliff at the
arbitration hearing was as follows:
Q. What -- I'm trying to understand what your involvement is
with this case again?
A. I was called here to testify at this hearing.
Q. Okay. And?
A. And based on this case that was closed by me, if the cases
can be handled administratively then I'm out of the picture. If
there's a problem with the case then we can refer it to the U.S.
Attorney, which it appears there is a problem with this case
that's why we're all here today. And in the event that her
removal is reversed then there's other avenues that we'll pursue
and one of them was prosecution and that is why I called the U.S.
Attorney to discuss it with him and see if that was, you know, a
viable avenue. And he indicated that, yes, he would prosecute in
this instance. (underscoring supplied).
Q. In this instance if the Grievant prevailed in her
arbitration?
A. Correct. (G.C. Exhibit 2, p. 103).
Further testimony by Gatliff at the arbitration hearing reflects that
when she called the U.S. Attorney to see if he would accept the case if
it was not resolved administratively, she did not make a recommendation;
that she just gave him all the circumstances and then asked what his
accommodation would be in respect to prosecution.
10. On June 7, 1990 the arbitrator issued a decision wherein he
concluded the discharge of Khamati was arbitrable. /7/
11. The Union's Attorney, Michael McAuley, acted as Khamati's
representative during the foregoing proceedings and the instant case.
On June 11, 1990 he received a call from Gatliff notifying him that
Khamati would be arrested. Thereafter, Khamati was arrested pursuant to
a complaint and warrant issued by the Federal Court, Eastern District of
Michigan. Gatliff had previously submitted an affidavit in support of
the criminal complaint and the warrant for Khamati's arrest. The
allegations in her affidavit were the same allegations set forth in the
original proposal to terminate the employee.
General Counsel contends that certain statements made by Gatliff,
while testifying at the arbitration hearing involving grievant Khamati,
tended to coerce and restrain said employee and other unit employees.
In particular, it is urged that such coercion and restraint results from
the statement by Gatliff that if the arbitrator reversed Respondent's
action in removing Khamati, other avenues would be pursued by
Respondent, one of which is criminal prosecution via the U.S.
Attorney's office.
It is maintained by Respondent that, on the contrary, no threat or
intimidation was implicit in Gatliff's testimony in that regard.
Further, that her statement referred to the options afforded management
in enforcing internal security practices. It is argued that Respondent
has procedural options after an employee's removal just as options are
afforded Khamati and the Union. Reference to possible criminal
prosecution of Khamati by Gatliff during the latter's testimony, it is
contended, was an option always available to Respondent. /8/
In support of its position General Counsel cites several decisions by
the Authority which concluded that statements by an agency indicating it
may retaliate because an employee may file or process a grievance were
violative of section 7116(a)(1). See Bureau of Engraving and Printing,
28 FLRA 796; Social Security Administration, Baltimore, Maryland, 18
FLRA 249. It is also argued that a particularly relevant case is
Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas,
OALJ 88-42, 7-CA-70281, aff'd without exception (March 22, 1988).
The cases cited by General Counsel seem quite distinguishable from
the instant matter. In respect to such cases, the Authority found a
violation where agency statements constituted a threat to take
retaliatory action because the employee did, or may, resort to the
grievance procedure. While it is insisted that the Combined Arms Center
case, supra, is particularly relevant, I disagree. That case involved
agency statements which notified an employee she would be charged with
illegal entry if she continued to process a grievance. As stated
therein by the Administrative Law Judge, "any threat imparted to an
employee for resorting to, or pursuing, the filing of such a grievance
constitutes interference, restraint or coercion under section 7116(a)(1)
of the Statute." (underscoring supplied).
Turning to the case herein, the statements made by Gatliff at the
arbitration hearing while testifying thereat do not, in my opinion, take
on the character of either direct or implied threats based on Khamati's
filing or pursuing her grievance. The thrust of any interference, or
coercive conduct, by an agency in making statements is an attempt to
threaten an employee for engaging in protected activity, i.e. the filing
of a grievance. Statements which may be construed as retaliatory in
nature on the part of the employer, due to pursuing rights as a
grievant, would clearly be violative of the Statute.
It is true, of course, that the test is an objective one in
determining whether remarks by an agency tended to coerce or intimidate
employees. Whether an employee could reasonably have drawn a coercive
inference therefrom is the determinative factor. U.S. Department of the
Air Force, Nellis Air Force Base, Nevada, 38 FLRA 39. However, I do not
believe that a reasonable inference can be drawn that Gatliff's
testimony at the arbitration hearing tended to coerce employees. Her
statement concerning the pursuit of other avenues by Respondent if the
arbitrator reversed the agency's discharge of Khamati, including the
referral of the matter to the U.S. Attorney for criminal prosecution,
reflected steps which were affordable to the agency for the alleged
falsifications by Khamati. It is akin to statements which the grievant
or her representative might make regarding other appeals they might
pursue if the arbitrator sustained the agency's conduct. I do not view
Gatliff's testimony as an attempt to interfere with the protected rights
afforded Khamati or other employees under section 7102 of the Statute.
Her statements do not carry with them, express or implied, a threat to
prosecute Khamati because she filed a grievance or pursued it to
arbitration. Neither do they suggest that an employee who engages in
protected activity will suffer reprisals. Her remarks, as Gatliff
testified at the arbitration hearing, seem clearly referable to
justifiable action which the agency could pursue if the arbitrator did
not conclude that Khamati's discharge was proper under the
circumstances. As such, they do not constitute interference, restraint
or coercion under section 7116(a)(1) of the Statute. It is, therefore,
recommended that the Authority adopt the following Order:
The Complaint in Case No. 5-CA-00476 is dismissed.
Issued, Washington, D.C., January 15, 1991.
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
(*) We reject, in this regard, the General Counsel's and the Charging
Party's assertion that the decision of the U.S. Supreme Court in
Sure-Tan v. NLRB, 467 U.S. 883 (1984), compels a conclusion that the
Respondent violated section 7116(a)(1) of the Statute. In Sure-Tan, the
employer was charged with violating section 8(a)(1) and (3) of the
National Labor Relations Act, 29 U.S.C. Section 158(a)(1) and (3), by
reporting to the Immigration and Naturalization Service certain
employees known to be undocumented aliens in retaliation for their
having engaged in union activity. Section 8(a)(1) and (3) makes it an
unfair labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of their rights under the NLRA or to
discriminate in regard to conditions of employment to encourage or
discourage membership in a labor organization. The Court noted that,
consistent with long-standing precedent of the National Labor Relations
Board, an employer violates section 8(a)(3) when it takes action "for
the purpose of discouraging union activity," and that the employer did
not dispute that "the anti-union animus element of this test was . . .
'flagrantly met.'" Id. at 894 (citation omitted). The Court also noted,
in this regard, that the "reporting of any violation of the criminal
laws is conduct which ordinarily should be encouraged," and that it is
"only when the evidence establishes that the reporting of the presence
of an illegal alien employee is in retaliation for the employee's
protected union activity that the Board finds a violation of Section
8(a)(3)." Id. at 895-86. In the case now before us, the Judge applied
long-standing Authority precedent and determined, based on the entire
record, that the disputed statement did not constitute unlawful
interference, restraint, or coercion under section 7116(a)(1) of the
Statute. We agree with the Judge's analysis and findings. Accordingly,
Sure-Tan provides no basis for reversing the Judge's conclusion that an
unfair labor practice was not committed in this case.
(1) At the hearing General Counsel's Motion was granted to amend the
complaint to add the Internal Revenue Service Headquarters as a
Respondent. In order to meet this amendment Respondent was permitted to
call any necessary witnesses at the hearing.
(2) In view of the amendment at the hearing, the Internal Revenue
Service, Headquarter and Internal Revenue Service, Detroit District,
Detroit, Michigan, are collectively called Respondent.
(3) General Counsel filed a Motion To Correct Record, dated December
17, 1990, in the following respect: "change page 56, line 24 from
December 7th to December 17th". There being no objections, and the
proposed correction appearing to be proper, the Motion is granted as
requested.
(4) Hereinafter referred to as IRS.
(5) The Inspection Division does not report to the IRS Detroit
District Director.
(6) The Union assisted her in this regard, and it continued to
represent her at subsequent proceedings.
(7) In accord with the consent of the parties the arbitrator did not
consider whether Khamati's discharge was justifiable.
(8) Respondent raises a collateral issue dealing with its
responsibility for the actions of Gatliff whom it deems to be neither a
supervisor nor a management official. It thus denies that, as an
investigator for the Internal Security Division of IRS, Gatliff could
bind the Respondent for her conduct. There is considerable support for
concluding that Respondent had cloaked Gatliff with apparent authority
to act as its agent at the arbitration hearing and thus made Respondent
accountable for her statements thereat. However, I find it unnecessary
to pass upon this issue in view of my ultimate conclusion herein.
40 FLRA 463
40 FLRA NO. 43
Pacific Missile Test Center, Point Mugu, California and NAGE, Local
R12-33, Case No. 8-CA-10086 (Decided April 26, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by refusing to provide the Union with the names and home
addresses of bargaining unit employees. The Authority found not
relevant to its resolution of the case Respondent's argument that OPM's
routine use notice does not apply to the system of records that will be
used to supply the union with the requested information.
Case No. 8-CA-10086
PACIFIC MISSILE TEST CENTER, POINT MUGU, CALIFORNIA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-33 AFL-CIO/
SEIU
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The Respondent and the General Counsel filed
briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. On October 19, 1990, the Union requested the names and home
addresses of the unit employees it represents. By memo dated November
13, 1990, and at all times thereafter, the Respondent has refused to
provide the Union with the home addresses it requested.
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available within the
meaning of section 7114(b)(4) of the Statute, and do not constitute
guidance, advice, counsel or training provided to management officials
or supervisors relating to collective bargaining.
A. The Respondent
The Respondent disagrees with the Authority's decision in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990). In that case, we reaffirmed the Authority's
decision in Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 788 (1986) (Farmers Home), and concluded that a union
is entitled, under section 7116(b)(4) of the Statute, to the names and
home addresses of bargaining unit employees.
Specifically, the Respondent contends that the disclosure of
employees' home addresses is prohibited by the Privacy Act, 5 U.S.C.
Section 552a, and the Freedom of Information Act, 5 U.S.C. Section 552.
The Respondent argues, further, that the requested information is not
necessary, within the meaning of section 7114(b)(4) of the Statute. The
Respondent also asserts that the Authority should apply the reasoning of
the court in FLRA v. Department of the Treasury, Financial Management
Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863
(1990), to find that the Respondent was not required to supply the Union
with the requested information.
Finally, the Respondent asserts that the "system of records that will
be used to supply the (U)nion with the requested information is a Navy
system of records not an OPM (Office of Personnel Management) system and
the Navy has consistently taken the position that its record systems do
not permit the release of home addresses (sic) records of unit employees
under the circumstances present in this case." Respondent's Brief at 1.
The Respondent asserts that disclosure of employees' home addresses from
its system of records is precluded because the "routine use disclosure
provisions of the applicable Navy system of records does not permit, but
rather precludes, the disclosure of employee home addresses to unions,
especially if there are alternative means of communications (sic)
available to the labor organizations." Id. The Respondent incorporated
in, and attached to, its statement a brief filed by the U.S. Department
of Justice in the U. S. Court of Appeals for the First Circuit in
Portsmouth Naval Shipyard, wherein the Department of Justice argues that
(1) employee home addresses may not be disclosed from official personnel
files pursuant to the routine use notice published by the Office of
Personnel Management (OPM), and (2) the OPM routine use notice does not
apply to "the Department of the Navy payroll system of records, which
would probably be the most accurate source of employees' current home
addresses." Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers
Home and Portsmouth Naval Shipyard are dispositive of the issues in this
case. The General Counsel, therefore, asserts that the Respondent's
admitted failure to furnish the Union with the requested information
violates section 7116(a)(1), (5), and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that the resolution of
this case does not require consideration of whether alternative means of
communication are available to the Union.
Accordingly, consistent with the parties' stipulation and based on
the Authority's decision in Portsmouth Naval Shipyard, we find that the
Respondent was required to furnish the Union with the names and home
addresses of employees in the bargaining unit represented by the Union.
Its refusal to do so violated section 7116(a)(1), (5), and (8) of the
Statute.
We note, in this regard, the Respondent's argument that OPM's routine
use notice does not apply to the "system of records that will be used to
supply the union with the requested information . . . ." Respondent's
Brief at 1. The Respondent does not specify the system of records to
which it refers. Read in light of the Department of Justice brief
attached to, and incorporated in, the Respondent's brief, however, we
construe the Respondent's argument to be that the requested information
would be supplied from the Respondent's payroll records because official
personnel files, which are subject to the OPM's routine use notice, are
not the most accurate source of current home addresses.
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice. See U.S. Naval
Ordnance Station, 40 FLRA No. 34 (1991), slip op. at 3-4.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Pacific Missile Test Center shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R12-33, AFL-CIO/SEIU, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) 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) Furnish the National Association of Government Employees, Local
R12-33, AFL-CIO/SEIU, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees, Local
R12-33, AFL-CIO/SEIU, 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 Commanding Officer of
the Pacific Missile Center and shall be posted in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R12-33, AFL-CIO/SEIU, the
exclusive representative of certain of our employees, the names and home
addresses of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the National Association of Government Employees,
Local R12-33, AFL-CIO/SEIU, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103 and whose telephone number is: (415) 744-4000.
40 FLRA 449
40 FLRA NO. 42
Dept. of Justice, Bureau of Prisons, Allenwood Federal Prison Camp,
Montgomery, Pennsylvania and AFGE, Council 33, Local No. 148, Case No.
2-CA-00107 (Decided April 26, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
CREDITING PLANS
CHARGE PROVIDING VALID BASIS FOR COMPLAINT
The complaint alleged that the Respondent violated section 7116(a)(
1), (5) and (8) by refusing to provide the Union with a crediting plan,
requested pursuant to section 7114(b)(4), in connection with the Union's
processing of a potential grievance.
The Authority initially dealt with the Respondent's allegation that
the charge did not provide a valid basis for the complaint. The
Authority rejected the contention, noting its precedent that the
complaint must bear a relationship to the charge and be closely related
to the events complained of in the charge. The Authority found that the
allegations in the complaint bear such a relationship and are closely
related. The Authority also noted that it is clear that the Respondent
understood the scope of the allegations against it and has addressed the
issues relating to those allegations in its submission. Therefore, the
Respondent was not prejudiced by the fact that the charge does not
specifically refer to a Union request on a specified date.
On the merits, the Authority found that the Respondent violated the
Statute by refusing to provide the Union with the requested crediting
plans. The Authority noted that it had required the disclosure of
information relating to crediting plans where a union has established
the right to such information to fulfill its representational functions
under 7114(b)(4). In this situation, the Union had established that it
is critical to a determination of whether the selection procedure was
improperly conducted or whether there is a strong argument that the
prospective grievant should have been chosen for the position.
The Authority noted that they recognized that the Respondent has some
concerns that disclosure of the plans might affect the integrity of the
evaluation process, but concluded that in view of the fact that the
selection process at issue has been completed, and that there is no
evidence that the Union would use the information for any purpose other
than to evaluate the grievance, disclosure will not result in an unfair
advantage to prospective candidates and will not destroy the integrity
of the selection process.
The Authority also rejected the contention that because the grievance
was nongrievable, the Respondent was relieved of its obligation to
furnish otherwise necessary information pursuant to section 7114(b)(4).
Finally, the Authority rejected the contentions that release of the
requested information would violate management's reserved rights to make
selections and to determine its internal security practices.
Case No. 2-CA-00107
U.S. DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, ALLENWOOD FEDERAL
PRISON CAMP, MONTGOMERY, PENNSYLVANIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 33, LOCAL NO.
148, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This 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 parties have agreed that no
material issue of fact exists. The General Counsel and the Respondent
filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5) and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by refusing to provide the Union with a crediting
plan, requested pursuant to section 7114(b)(4) of the Statute, in
connection with the Union's processing of a potential grievance.
For reasons discussed below, we find that the Respondent violated the
Statute.
By letter dated June 19, 1989, the Union's Chief Steward requested
Respondent's Warden to furnish the Union with certain information,
including a promotion board's crediting plan, in connection with its
processing of a potential grievance challenging the non-selection of a
bargaining unit employee for promotion. The request specifically
stated, "(i)n order for the Union to fulfill it's (sic) representational
responsibilities we are requesting through the freedom of information
act the . . . information(.)" Stipulation Exhibit No. 5. The
Respondent, by letter dated June 29, 1989, responded to the request,
advising the Union that it could not supply the requested information
and that it had referred the request to the Bureau of Prisons General
Counsel's Office in Washington, D.C. By notice dated July 11, 1989, the
Union was informed that the Respondent's Washington, D.C. office had
referred the Union's request to its regional office in Philadelphia.
During the course of a meeting on September 11, 1989, with
Respondent's Warden and Personnel Officer, the Union's Chief Steward
renewed his June 19, 1989, request for the promotion crediting plan
pursuant to the Freedom of Information Act (FOIA), as well as section
7114(b)(4) of the Statute. By memorandum dated September 18, 1989, the
Respondent's Personnel Officer refused to furnish the crediting plan.
The Respondent contended that the crediting plan was not disclosable
under section 7114 of the Statute. It also contended that because the
position in question was outside of the bargaining unit, the matter was
not grievable under the parties' negotiated grievance procedure.
The parties stipulated that the requested information is maintained
by the Respondent in the regular course of business and does not
constitute guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining.
A. General Counsel
The General Counsel contends that the Respondent violated the Statute
by failing and refusing to provide the Union with the crediting plan.
The General Counsel argues that the stipulated record establishes that
the Union requested promotion records, including the appropriate
crediting plan, and that the information was needed to help the Union to
decide whether to grieve a unit employee's non-selection. The General
Counsel notes that the Respondent admitted that the information is
maintained by it in the regular course of business and that the
information does not constitute guidance, advice, counsel, or training
provided for management officials or supervisors relating to collective
bargaining.
The General Counsel also contends that the requested crediting plan
is clearly relevant and necessary for the Union to determine whether to
file a grievance over the non-selection. In this regard, the General
Counsel argues that the Union clearly stated its purpose and concomitant
need for the information in its requests of June 19 and September 11,
1989, and contends that the crediting plan is a relevant and necessary
tool to enable the Union to determine whether the selection process
conformed to the merit promotion provision of the parties' agreement.
The General Counsel argues that such information is critical to the
Union in its evaluation of the strength and merits of the grievance.
The General Counsel disagrees with the Respondent's assertion that the
grievance is nongrievable and that therefore it has no obligation to
furnish the requested information pursuant to section 7114(b)(4). In
this regard, the General Counsel asserts that grievability
determinations are to be made by the arbitrator.
The General Counsel further contends that the disclosure of the
requested crediting plan is not prohibited by law, citing NLRB Union,
Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRB Union), in which
the court indicated that section 7106 of the Statute does not prohibit
the disclosure of anything. Accordingly, the General Counsel contends
that the Respondent cannot rely on section 7106 to support its refusal
to release the crediting plan, citing also the Authority's decision on
remand in National Labor Relations Board, 32 FLRA 305 (1988). Further,
the General Counsel argues that the Privacy Act does not preclude
release because there is no personal information involved in a crediting
plan.
The General Counsel requests that the Authority order the Respondent
to cease and desist from its violative conduct; to provide the
requested crediting plan; and to post an appropriate Notice to
Employees throughout the jurisdiction of the Bureau of Prisons,
Allenwood Federal Prison Camp.
B. Respondent
Respondent contends that this case presents six questions: (1) Did
the charge in this case provide a valid basis for the complaint; (2)
was Union access to the crediting plan necessary for full and proper
discussion, understanding and negotiation of subjects within the scope
of collective bargaining; (3) was management prohibited by applicable
law outside the Statute from releasing the crediting plan; (4) was
management obligated to release the plan to the Union even though no
grievance had been filed at the time of the request alleging that
management's selection action had violated outside law; (5) did
management have a right reserved by section 7106(a)(1) to refuse to give
the crediting plan to the Union; and (6) did management have a right
reserved by section 7106(a)(2)(C) to refuse to give the crediting plan
to the Union.
With regard to the procedural issue, the Respondent contends that the
charge referred only to the Union's June 19, 1989 FOIA request and did
not make reference to the September 11 request. The Respondent argues
that instead of filing a new charge based on the Union's September 11
request and the Respondent's denial of that request on September 18, the
General Counsel attempted to cure this basic defect by artful wording in
the complaint. It contends that the General Counsel is not privileged
to cure the defect in this manner.
The Respondent further argues that while the record would support a
conclusion that the Unino's subsequent request on September 11 was an
event that was closely related to the original request of June 19, in
the sense that the subject matter of the two requests was essentially
the same, the specifications set out in the complaint cannot be said to
bear any relationship to the charge because the management action that
the Union actually complained of in the charge, an implied refusal to
turn over the information in response to a FOIA request, is not an
unfair labor practice. It contends that the Authority has no
jurisdiction to adjudicate a complaint that alleges that management has
improperly denied a FOIA request and that therefore the charge does not
allege an offense cognizable by the Authority.
Next, the Respondent contends that, assuming the charge was
sufficient to bring the question of a section 7114(b)(4) violation
before the Authority, the Union failed to meet the threshold requirement
that access to the crediting plan was necessary to enable it to carry
out its representational functions. In this regard, it asserts that a
union's bare assertion that it needs data to process grievances does not
automatically obligate an agency to supply such data. It argues that
the Union's requests did not specify on what grounds it might challenge
the selection action other than management made an error in the
selection or by selecting another candidate. The Respondent contends
that the routine release of crediting plans is inconsistent with a
controlling Government-wide regulation, and that therefore the Union's
request must be made in connection with a specific grievance and the
grievant must allege that the selection violated "applicable law" within
the meaning of section 7106(a)(2) of the Statute. Alternatively, the
Respondent argues that even if law and regulation "would authorize the
disclosure of a crediting plan directly to the union in some
circumstances, those circumstances would still require, at a minimum:
(1) that a grievance must have been filed(;) (2) that the grievant is
asserting that error allegedly committed by a rating and ranking
official violates 'law' within the meaning of section 7106(a)(2) of the
statute or the selecting official discriminated against him in some
fashion prohibited by law, and; (3) that but for this error the
grievant would have been selected." Respondent's Brief at 10-11.
The Respondent also contends that the prospective grievance is not
arbitrable and therefore, that there was no obligation to release the
information. It argues that, under Department of the Treasury, IRS v.
FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), if the exercise of a
management right is involved, the management decision is not grievable
unless it is alleged that the management action violated external law.
Therefore, according to the Respondent, there is always a "threshold
question of statutory jurisdiction which must be resolved before the
Authority can determine whether an agency accused of refusing to provide
information in fact had any obligation to supply that information."
Respondent's Brief at 13. The Respondent argues that in this case,
where the nature of the possible grievance is unidentified and there is
no allegation that management's action violated external law, the
General Counsel has not met the burden of showing that the potential
grievance concerns an arbitrable matter and that disclosure of the
crediting plan is necessary within the meaning of section 7114( b)(4) of
the Statute.
The Respondent further contends that revealing the crediting plan
would violate FPM Supplement 335-1, Subchapter S6, and 5 C.F.R. Part
300. It disagrees with the Authority's decision in Department of the
Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg,
North Carolina, 26 FLRA 407 (1987) (Fort Bragg) that the Authority may,
on a case-by-case basis, order the release to the Union of specific
crediting plans if it does not require a blanket disclosure of all
agency crediting plans. The Respondent argues that the Authority should
abide by the OPM's reading of its own regulations, which bars the
release of individual crediting plans.
Further, the Respondent contends that it had a reserved right under
section 7106(a)(1) to refuse to turn over the crediting plan. In this
regard, the Respondent argues that the court's decision in NLRB Union is
erroneous. The Respondent contends that management's right to determine
its internal security practices encompasses a right to adopt policies
limiting the release of those agency documents to which legitimate
security considerations attach. It argues that there is a reasonable
connection between the security measure followed by the Respondent to
safeguard its crediting plans and the established need to prevent the
compromise of such plans.
Finally, the Respondent contends that disclosure of the plan would
interfere with management's right under section 7106(a)(2)(C) to make
selections from among properly ranked and certified candidates. In this
regard it distinguishes NLRB Union, asserting that in this case we are
not dealing with the content of management's internal deliberations, as
in NLRB Union, but, with a document that contains information that, if
it became known to prospective applicants for the same type of
vacancies, would impair management's right to select. The Respondent
contends that "unless the Authority can reasonably conclude that release
of (t)he crediting plan will have no effect on the continued viability
of that plan to evaluate applicants for future vacancies in that type of
position . . . it must find that the (Respondent) did not violate
section 7114(b)(4) as alleged." Id. at 30.
A. The Charge Provided a Valid Basis for Complaint
We conclude that the charge provided a valid basis for the complaint.
The Respondent concedes that the information requested on September 11,
1989, was essentially the same as that requested on June 19, 1989. It
also does not allege that it was prejudiced by the fact that the charge
did not include the September 11, 1989, request or its September 18,
1989, refusal to furnish the information under section 7114(b)(4).
Rather, it contends only that although the request on June 19 was made
pursuant to the FOIA, the complaint relies on the June 19 request and
the September 18 refusal to provide the information as the basis for the
allegation that the Respondent did not comply with Section 7114(b)(4),
and that, therefore, the complaint bears no relationship to the charge.
The Authority has held that the issuance and contents of a complaint
comply with the requirements in section 2423.12 of our Rules and
Regulations if the allegations in the complaint bear a relationship to
the charge and are closely related to the events complained of in the
charge. Bureau of Land Management, Richfield District Office,
Richfield, Utah, 12 FLRA 686, 698 (1983); Department of the Interior,
Washington, D.C. and Bureau of Indian Affairs, Washington, D.C. and
Flathead Irrigation Project, St. Ignatius, Montana, 31 FLRA 267, 276
(1988). In Department of Defense Dependents Schools, Mediterranean
Region, Naples American High School (Naples, Italy), 21 FLRA 849 (1986),
the Authority adopted the judge's findings that: (1) the charge serves
merely to initiate an investigation and to determine whether a complaint
in a matter should be issued; (2) a charge is sufficient in an
administrative proceeding if it informs the alleged violator of the
general nature of the violation charged against him; and (3) where a
procedural defect exists concerning the charge, a respondent must be
prejudiced by the alleged defect. 21 FLRA at 861. Moreover, in
analogous situations arising under the National Labor Relations Act, 29
U.S.C. Sections 151 et seq., courts have found that it is the function
not of the charge but of the complaint to give notice to a respondent of
specific claims made against it; that the purpose of a charge is merely
to set in motion the machinery of an inquiry; and that the
investigation may deal with unfair labor practices that are related to
those alleged in the charge and grow out of those allegations while the
processing is pending. See NLRB v. Fant Milling Co., 360 U.S. 301,
307-308 (1959).
In this case, we find that the allegations in the complaint bear a
relationship to the charge and are closely related to the events
complained of in the charge. The charge put the Respondent on general
notice of the allegation that it had violated the Statute by refusing to
furnish the requested crediting plan pursuant to the Union's request and
that the General Counsel would be initiating an investigation on that
allegation. Further, it is clear that the Respondent understood the
scope of the allegations against it and has addressed the issues
relating to those allegations in its submission before the Authority.
Therefore, we find that the Respondent was not prejudiced by the fact
that the charge does not specifically refer to the Union's September 11
request. Accordingly, we find that the facts and allegations in the
complaint are properly before the Authority.
B. The Respondent Violated the Statute by Refusing to Provide the
Union with the Requested Information
We conclude that the Respondent violated section 7116(a)(1), (5) and
(8) of the Statute by refusing the Union's request for information
pursuant to section 7114(b)(4) of the Statute.
The Authority previously has addressed disclosure of information
contained in crediting plans in various contexts. In National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 23
FLRA 681 (1986) (Customs Service), the Authority found that a proposal
that would require an agency to disclose existing crediting plans to a
union, on request, was inconsistent with FPM Supplement 335-1,
subchapter S5-3(c), which the Authority found to be a Government-wide
rule or regulation. The Authority noted that subchapter S5-3(c)
provides that "(c)rediting plans . . . should not be released . . . if,
in the agency's view, such release would undermine the fairness and
validity of the selection procedure." Id. at 683. The Authority found
that a determination as to whether release of crediting plans would
create an unfair advantage or compromise the utility of the selection
process should be made on a case-by-case basis. The Authority concluded
that the proposal in Customs Service would have authorized a blanket
disclosure of existing crediting plans without regard to whether the
release of such plans would undermine the fairness and validity of the
selection procedure. Consequently, the Authority concluded that the
proposal was inconsistent with the FPM and was outside the duty to
bargain. The Authority reached a similar conclusion in American
Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
Missile Command, The U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, The U.S. Army Information Systems Command --
Redstone Arsenal Commissary, 27 FLRA 69, 72-74 (1987). See also U.S.
Department of Defense, Defense Logistics Agency, Defense General Supply
Center, Richmond, Virginia, 37 FLRA 895 (1990).
Although the Authority has found proposals authorizing blanket
disclosure of crediting plans to be outside the duty to bargain, the
Authority has required the disclosure of information relating to
crediting plans where a union has established the right to such
information to fulfill its representational functions under section
7114(b)(4) of the Statute. For example, the Authority has found that
unions are entitled to crediting plans in order to determine whether to
file grievances on behalf of unit employees. The failure of an agency
to provide the requested information in such circumstances has been
found to violate the Statute. See Department of the Army, Headquarters,
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA
461 (1990); United States Department of Agriculture, Animal and Plant
Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630
(1987); Fort Bragg, 26 FLRA 407.
More particularly, in Fort Bragg the Authority found that the FPM did
not prohibit the release of the requested data, which included crediting
plans. Utilizing the case-by-case approach suggested in Customs Service
for determining whether the release of crediting plans would create an
unfair advantage or compromise the utility of the selection process, the
Authority concluded that disclosure of the plans would not conflict with
the FPM. The Authority noted that the requests were limited to two
specific selection actions and did not require the blanket disclosure of
all agency crediting plans. Moreover, disclosure of the plans was
necessary for the union to fulfill its representational duties.
Consequently, noting that the selection actions had been substantially
completed, the Authority concluded that disclosure would not result in
an unfair advantage to prospective candidates and would not destroy the
integrity of the agency's selection process. 26 FLRA at 413.
In this case, the Union's request for the crediting plan was clearly
to fulfill its representational functions under section 7114(b)(4) of
the Statute. A unit member was not selected to fill a vacancy for which
he had applied. The Union requested the appropriate crediting plan in
order to determine whether to file a grievance over the selection
action. The Union also requested information on each of the applicants
for the position, including performance appraisals, education and
experience. Stipulation, Exhibit 5. There is no evidence in the
stipulated record that the Respondent objected to disclosing this
information. Without the additional information that would be provided
by the crediting plan, however, the Union has no way of evaluating the
information that it apparently has received in order to determine
whether it should file a grievance on behalf of the prospective
grievant. Indeed, in this situation, the crediting plan is critical to
a determination of whether the selection procedure was improperly
conducted or whether there is a strong argument that the prospective
grievant should have been chosen for the position. Therefore, we find
that the information was necessary within the meaning of section
7114(b)(4).
We recognize that the Respondent has some concerns that disclosure of
the requested plan might affect the integrity of the evaluation process.
In view of the fact that the selection process at issue here has been
completed, and that there is no evidence that the Union would use the
requested information for any purpose other than to evaluate this
grievance, however, we conclude that disclosure will not result in an
unfair advantage to prospective candidates and will not destroy the
integrity of the Agency's selection process. See Fort Bragg, 26 FLRA at
413. Accordingly, the failure of the Respondent to provide the
requested information in such circumstances is a violation of the
Statute.
We also find that the Respondent's assertion that the grievance was
nongrievable did not relieve the Respondent of its obligation to furnish
otherwise necessary information pursuant to section 7114(b)(4) of the
Statute. See U.S. Department of Justice, Immigration and Naturalization
Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1320 (1990)
(agency's assertion that a grievance is nongrievable did not negate the
agency's obligation under section 7114(b)(4) to provide information
relating to that grievance) and cases cited therein. In this regard, we
reject the Respondent's argument that the Supreme Court's decision in
IRS v. FLRA requires dismissal of the complaint because it has not been
established that the information was requested for a grievance that
involves a violation of external law and, therefore, a grievance that
would be arbitrable. In our view, IRS v. FLRA, a negotiability case
involving whether the union's proposal interfered with management's
rights under section 7106(a) of the Statute, is not applicable to the
issue of a union's rights under section 7114(b)(4). Rather, we will
continue to follow the court's decision in NLRB Union, which held that
section 7106 does not bar the disclosure of information under section
7114(b)(4). As the Court of Appeals for the District of Columbia
Circuit stated in that case, "(n) othing in Section 7106 prohibits
management from disclosing any or all of the data relied upon or
accumulated by it in acting within those areas." 842 F.2d at 486. See
also Department of the Air Force, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 38 FLRA 965, 973-4 (1990),
petition for review filed sub nom. Department of the Air Force,
Sacramento Air Logistics Center, McClellan Air Force Base, California v.
FLRA, No. 91-1070 (D.C. Cir. Feb. 8, 1991) (the Authority found,
consistent with the court's decision in NLRB Union, that the disclosure
of requested information was not inconsistent with the agency's right to
discipline employees under section 7106(a)(2)(A)).
Moreover, even assuming that the Respondent is correct in its
assertion that NLRB Union is distinguishable from this case, we reject
the Respondent's contention that it had a reserved right under section
7106(a)(1) and 7106(a)(2)(C) to refuse to turn over the crediting plan.
First, we reject the Respondent's argument that release of the requested
information would directly interfere with its right under section
7106(a)(2)(C) to make selections from among properly ranked and
certified candidates. As stated above, it is significant that the
selection process at issue in this case has been completed and that
there is no evidence that the Union would use the requested information
to destroy the integrity of any future selection process. The release
of the one crediting plan that has been requested would not preclude the
Respondent in any way from establishing the requirements or
qualifications for any position or from revising the requirements or
qualifications for the position covered by this crediting plan.
Therefore, even if we deemed such an analysis to be appropriate, we
would not find disclosure of the crediting plan to directly interfere
with management's right under section 7106(a)(2)(C) of the Statute. See
U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air
Station, Cherry Point, North Carolina and International Association of
Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990).
As to the Respondent's argument that the release of the crediting
plan would interfere with its right to determine its internal security
practices, the Authority has held that an agency's right to determine
its internal security practices concerns the right to determine policies
and take actions that are part of its management's plan to secure or
safeguard its personnel, its physical property, and its operations.
See, for example, National Federation of Federal Employees, Local 2050
and Environmental Protection Agency, 36 FLRA 618, 625 (1990).
Additionally, in arguing that a particular plan or policy falls within
the scope of the right to determine internal security practices, an
agency must show that there is a reasonable link between the plan or
policy and the security of its personnel, property or operations.
American Federation of Government Employees, Local 987 and U.S.
Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA
197, 200 (1990), petition for review filed, United States Department of
the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990). We find
that the Respondent has not identified in what manner the release of a
specific crediting plan, requested with respect to a particular
promotion action, would affect its ability to secure or safeguard its
personnel, physical property, or operations. Accordingly, even assuming
that the Respondent is correct in arguing that disclosure of information
under section 7114(b)(4) could impermissibly interfere with its rights
under section 7106(a), we find that the release of the crediting plan
would not directly interfere with management's right to determine its
internal security practices.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the U.S. Department of Justice, Bureau
of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania,
shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the American
Federation of Government Employees, Council 33, Local No. 148, AFL-CIO,
the exclusive representative of its employees, the crediting plan for
Vacancy Announcement No. 89-NERO-100, requested in connection with such
representative's processing of a potential grievance challenging the
promotion action.
(b) 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, furnish the American Federation of Government
Employees, Council 33, Local No. 148, AFL-CIO, the exclusive
representative of its employees, the crediting plan for Vacancy
Announcement No. 89-NERO-100, requested in connection with such
representative's processing of a potential grievance challenging the
promotion action.
(b) Post at its facilities at the Allenwood Federal Prison Camp,
Montgomery, Pennsylvania, 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 Warden of the Allenwood Federal
Prison Camp, Montgomery, Pennsylvania, 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, Boston 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 furnish, upon request by the American
Federation of Government Employees, Council 33, Local No. 148, AFL-CIO,
the exclusive representative of our employees, the crediting plan for
Vacancy Announcement No. 89-NERO-100, requested in connection with such
representative's processing of a potential grievance challenging the
promotion action.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the American Federation of Government
Employees, Council 33, Local No. 148, AFL-CIO, the exclusive
representative of our employees, the crediting plan for Vacancy
Announcement No. 89-NERO-100, requested in connection with such
representative's processing of a potential grievance challenging the
promotion action.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Boston Regional Office, Federal Labor Relations Authority,
whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046
and whose telephone number is: (617) 565-7280.
40 FLRA 425
40 FLRA NO. 41
Department of Defense Office of Dependents Schools and Overseas
Education Association, Case No. 0-NG-1741 (Decided April 26, 1991)
7105(a)(2)(D)
NEGOTIABILITY DETERMINATION
LIVING QUARTERS ALLOWANCES
TRANSPORTATION EXPENSES
DEPARTMENT OF STATE STANDARDIZED REGULATIONS
20 U.S.C. 905
OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT
OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT
5 U.S.C. 5722
5 U.S.C. 5724(d)
MANAGEMENT RIGHT TO DETERMINE BUDGET
AGENCY REGULATIONS FOR WHICH THERE IS A COMPELLING NEED
The appeal concerned the negotiability of three proposals that
concern granting living quarters allowances (LQA) and transportation
expenses to certain overseas teachers.
Proposal 1 would require a waiver of a subsection of the Department
of State Standardized Regulations (DSSR) when a bargaining unit
employee, who is not overwise receiving LQA, completes five consecutive
years of service with the Agency. The Authority concluded that the
proposal is inconsistent with the DSSRs, which are government-wide
regulations, and is therefore nonnegotiable. In this regard, the
Authority noted that the Union had not demonstrated, and it was not
apparent to the Authority, that longevity of employment, standing alone,
is anything exceptional or uncommon. In the Authority's view, longevity
of employment is a fairly routine circumstance that is facially
incompatible or irreconcilable with the standard of "unusual" that would
permit a waiver of the subsection at issue.
Proposal 2 would allow any bargaining unit employee to apply for
other bargaining unit positions through the Agency's Continental United
States recruitment program. Further, under the proposal, an employee
who maintains a bona fide legal residence in the United States would be
considered an "employee recruited in the United States" for purposes of
eligibility for an LQA; such employees would have their legal residence
considered their "place of actual residence" for purposes of
transportation expenses. The Authority found that the proposal is
nonnegotiable because it is inconsistent with the DSSRs, insofar as it
concerns LQA and is inconsistent with 5 U.S.C. 5722 and 5724, insofar as
it concerns transportation expenses.
Proposal 3 concerned eligibility for an LQA and specifies
circumstances under which a subsection of the DSSRs will be waived. The
Authority first rejected the Agency's contention that the proposal
violates management's right to determine budget, finding that the Agency
failed to demonstrate that the proposal meets either of the Authority's
tests for determining whether a proposal conflicts with management's
right to determine budget. The Authority further found that the
proposal did not violate the DSSRs, noting that there is nothing in
those regulations that reserves discretion solely and exclusively to the
Agency. Finally, the Authority rejected the Agency's assertion that the
proposal is inconsistent with an agency regulation for which a
compelling need exists, the Agency failing to indicate the Authority's
compelling need criteria on which it relies and leaving the Authority to
guess how any of the arguments made in the statement of position may
relate to any or all of those criteria.
Case No. 0-NG-1741
U.S. DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS
(Agency)
OVERSEAS EDUCATION ASSOCIATION
(Union)
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeal concerns
the negotiability of three proposals that concern granting living
quarters allowances (LQA) and transportation expenses to certain
overseas teachers. /1/
Proposal 1 would require a waiver of subsection 031.12b of the
Department of State Standardized Regulations (DSSRs) when a bargaining
unit employee, who is not otherwise receiving an LQA, completes five
consecutive years of service with the Agency. For the reasons that
follow, we find that Proposal 1 is not negotiable because it is
inconsistent with the DSSRs, which are Government-wide regulations.
Proposal 2 would allow any bargaining unit employee to apply for
other bargaining unit positions through the Agency's CONUS (Continental
United States) recruitment program. Further, under Proposal 2, an
employee who maintains a bona fide legal residence in the United States
would be considered an "employee recruited in the United States" for
purposes of eligibility for an LQA; such employees would have their
legal residence considered their "place of actual residence" for
purposes of transportation expenses. For the reasons that follow, we
find that Proposal 2 is not negotiable because it is inconsistent with
Government-wide regulations, the DSSRs, insofar as it concerns LQAs and
is inconsistent with law, 5 U.S.C. Sections 5722 and 5724, insofar as it
concerns transportation expenses.
Proposal 3 concerns eligibility for an LQA and specifies
circumstances under which subsection 032.12b of the DSSRs will be
waived. For the reasons that follow, we reject the Agency's contentions
that Proposal 3 is inconsistent with management's right to determine its
budget, the DSSRs and an agency regulation for which a compelling need
exists. We find that Proposal 3 is negotiable.
This case concerns some of the allowances and transportation expenses
for which employees assigned to overseas posts of duty may be eligible.
Historically, in determining eligibility for payment of various
allowances and transportation expenses, the Agency has distinguished
between "local hires," i.e. employees hired overseas, and "stateside
hires," i.e. employees recruited and hired from the United States. See,
for example, Acker v. United States, 620 F.2d 802 (Ct. Cl. 1980) (Acker
I) and Acker v. United States, 6 Cl. Ct. 503 (1984) (Acker II). The
former group is generally considered ineligible for many of the payments
that are authorized for employees serving in overseas posts of duty,
while the latter group is generally considered eligible for those
payments. This distinction and the resulting denial of payments to
local hires has contributed to many disputes between the parties to this
case. See, for example, U.S. Department of Defense Dependent Schools
and Overseas Education Association, 37 FLRA 226 (1990), petition for
review filed sub nom. Mary E. Hartmann, et al. v. FLRA, No. 90-2699
(D.D.C. Oct. 31, 1990); Overseas Education Association and U.S.
Department of Defense Dependent Schools, 37 FLRA 216 (1990); Department
of Defense Dependents Schools, Pacific Region and Overseas Education
Association, Pacific Region, 30 FLRA 1206 (1988); Overseas Education
Association, Inc. and Department of Defense, Office of Dependents
Schools, 27 FLRA 492 (1987), aff'd sub nom. Overseas Education
Association v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) (OEA).
Article 2, Section 4 (n)
Subsection 031.12b of the DSSR will be waived when a unit
employee, not otherwise receiving a living quarters allowance
(LQA), completes five years of consecutive DODDS service in an
overseas area. From that time on, an otherwise eligible unit
employee who is a United States citizen will receive a quarters
allowance.
A. Positions of the Parties
The Agency argues that Proposal 1 is nonnegotiable because it is
inconsistent with a Government-wide regulation, specifically, section
031.12 of the DSSRs, which governs the circumstances under which a local
hire may be granted an LQA. The Agency contends that under the DSSRs
the agency head is granted "the right to determine whether an individual
circumstance is unusual and warrants a waiver" of the requirements of
subsection 031.12b. Statement of Position at 3. The Agency asserts
that to allow a "blanket waiver," which it maintains Proposal 1 seeks,
is inconsistent with the DSSRs. Id. Additionally, the Agency cites the
decisions in Acker I and Acker II in support of its contention that a
proposal to allow a local hire eligibility for an LQA based solely on
longevity is inconsistent with law or Government-wide regulation. The
Agency asserts that in Acker II the court relied on Acker I to reject a
claim by local hires that they were entitled to an LQA based on
longevity.
The Agency asserts that Proposal 1 would deprive the Agency head of
the right to make determinations as to eligibility for an LQA and would
subject the Agency head's discretion to arbitral review. The Agency
states that in the event that the Authority determines that Proposal 1
concerns a permissive subject of bargaining under section 7106(b) of the
Statute, it elects not to bargain.
The Union states that while section 031.12 of the DSSRs limits the
eligibility of local hires for an LQA, that section also provides that
requirements set forth in subsection 031.12b may "be waived by the head
of the agency upon determination that unusual circumstances in an
individual case justify such action." Petition for Review at 3.
According to the Union, the intent of Proposal 1 is to require the
agency head to exercise the authority to waive subsection 031.12b in
cases where a local hire has remained in the Agency's employ for five
continuous years. In support of its proposal, the Union contends that
the Agency has provided for a number of "blanket" waivers of subsection
031.12b through an agency regulation, DoD Directive 1400.25M (Chapter
592, Civilian Personnel Manual, Section 2-2(b)(3)). Union reply brief
at 1. The Union asserts that Proposal 1 is negotiable because it
concerns a matter affecting working conditions that is within the
Agency's discretion.
B. Analysis and Conclusions
Under 20 U.S.C. Section 905, overseas teachers are entitled to
quarters or a quarters allowance under regulations prescribed by or
under authority of the President. The Authority has previously found
that those regulations, which are included in the DSSRs, constitute
Government-wide regulations within the meaning of section 7117 of the
Statute. See Overseas Education Association, Inc. and Department of
Defense, Office of Dependents Schools, 22 FLRA 351, 354-56 (1986), aff'd
sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814
(D.C. Cir. 1987). It follows that a proposal that is inconsistent with
the DSSRs is outside the Agency's duty to bargain pursuant to section
7117(a) of the Statute.
Section 031.1 of the DSSRs governs employee eligibility for an LQA.
/2/ That section distinguishes between employees recruited in the United
States and those recruited outside the United States with respect to the
conditions under which they are eligible for an LQA. Employees
recruited in the United States are generally eligible for an LQA.
Employees recruited outside the U.S. are eligible only if they meet
certain conditions. Essentially, their residence overseas must be
"fairly attributable" to their employment with the U.S. Government and
prior to that appointment they must have been recruited in the United
States by one of the employers specified in subsection b of 031.12.
DSSRs Section 031.12a and b. To meet the second condition, their
employment with that employer must have been "substantially continuous"
and under circumstances that provided for return transportation to the
geographical areas specified in subsection b. Id. This second
condition may be waived by the head of the agency "upon determination
that unusual circumstances in an individual case justify such action."
Id. An alternative to the second condition is created if, as a
condition of employment, the employee was required by the agency to move
to another area. DSSRs Section 031.12c.
Proposal 1, in essence, seeks to establish that five years of
continuous service with the Agency in an overseas area constitutes an
"unusual circumstance" that justifies the waiver of subsection 031.12b
in individual cases. In our view, however, longevity of employment,
standing alone, is not an unusual circumstance. In reaching this
conclusion we are guided by the provisions of the DSSRs themselves, the
intent of the statutes that the DSSRs implement, and court decisions
addressing the DSSRs and those statutes.
As was discussed by the United States Court of Claims in Acker I, the
distinction between employees based on their point of hire for purposes
of eligibility for an LQA, which is embodied in the DSSRs, is consistent
with the legislative history underlying the laws governing the payment
of LQAs. /3/ The court concluded that the legislative history of the
Overseas Teachers Pay and Personnel Practices Act showed that Congress
intended for the teachers to receive the allowances and differentials
provided in that Act equal to those granted to other civilian employees.
620 F.2d at 804-05. Turning to the law that governs overseas
allowances and differentials for other civilian employees, the Overseas
Differentials and Allowances Act, the court concluded that the goal of
that legislation "was to compensate civilian employees for extra costs
and hardships which they encountered due to their assignment abroad."
Id. at 806. The court further noted that "teachers hired overseas
voluntarily encountered any hardships and extra costs incident to their
employment. Thus, they are unlike stateside hires who must be enticed
overseas and compensated for their assignment to foreign posts." Id.
The court determined that "the benefits are designed to give something
extra to employees who must go overseas. There is no indication that
Congress intended to grant people already in those foreign areas extra
compensation to give them living situations as though they had come from
the United States." Id. The court concluded that the distinction in the
DSSRs as to employees' eligibility for an LQA based on their point of
hire was entirely consonant with the spirit of the Overseas
Differentials and Allowances Act and the Overseas Teachers Pay and
Personnel Practices Act. Id. at 804.
In Acker II the United States Claims Court addressed a claim that in
view of existing provisions contained in Department of Defense
regulations that allowed exceptions to the denial of LQA to local hires,
a similar exception should be made based on longevity of employment.
The existing exceptions applied to local hires in circumstances where a
spouse receiving an LQA died or departed the area permanently, a change
in work location made daily commuting to a common domicile unreasonable,
or there was a divorce or legal separation. 6 Cl. Ct. at 509. The
court found that "these regulatory exceptions cover unusual
circumstances, including those in which a sponsoring spouse is no longer
available. The local hire is given a living quarters allowance . . . to
make up for the benefits lost through circumstances beyond his or her
control." Id. However, the court stated "merely teaching for more than
a year or two is not a circumstance analogous to those(.)" Id. at 510.
The DSSRs generally limit eligibility for LQAs to employees who leave
the United States and go overseas as a result of their employment or who
must move from one overseas post to another as a condition of their
employment. As found by the court, this limitation is consistent with
the intent of the laws that authorize the payment of LQAs. That is,
they distinguish between employees whose choice to live overseas is
personal and/or voluntary and those whose choice is attributable to
their employment. In our view, a proposal to waive subsection 031.12b
of the DSSRs based solely on longevity of employment is not consistent
with the intent of the DSSRs or the laws that the DSSRs implement.
Longevity alone affords no consideration of the role that employment
played in enticing the employee to leave the United States and live
overseas. /4/ Additionally, the Union does not demonstrate, and it is
not apparent to us, that longevity of employment, standing alone, is
anything exceptional or uncommon. In our view, longevity of employment
is a fairly routine circumstance that is facially incompatible or
irreconcilable with the standard of "unusual" that would permit a waiver
of subsection 031.12b.
Based on the foregoing, we conclude that Proposal 1 is inconsistent
with section 031.1 of the DSSRs, a Government-wide regulation, and is,
for that reason, nonnegotiable. See American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA 870 (1986) (FDIC, Madison Region)
(Proposal 15, which allowed 8 days of official time to be used at the
employee's discretion, was inconsistent with a Federal Personnel Manual
provision giving agency heads discretion to grant employees
administrative leave for brief periods of time). In view of our
decision, we do not address the other arguments that the parties have
raised with respect to the negotiability of Proposal 1.
Article 2, Section 4 (o)
Any unit employee may apply and be considered for selection to
another unit employee position through the DODDS CONUS recruitment
program. Unit employees selected for other positions in the
bargaining unit shall be considered an "employee recruited in the
United States" under DSSR Section 031(.)11 provided they maintain
a bona fide legal residence within the United States, the
Commonwealth of Puerto Rico, or the possessions of the United
States at the time of application. The unit employee's CONUS
residence shall be considered the Unit Employee's point of hire,
and he/she shall be entitled to negotiate a transportation
agreement to and from that point of hire after selection through
the DODDS CONUS recruitment program. A Unit Employee selected in
this manner shall, nonetheless, be entitled to constructive travel
from his/her current location to the new duty station, up to the
cost of transporting the Unit Employee, dependents and household
goods from his/her home of record to the new duty station. Unit
Employees shall not be involuntarily reassigned or disciplined
under this Agreement until all grievances and/or equal employment
opportunity complaints disputing the reassignment or disciplinary
action are resolved by the appropriate authority.
A. Positions of the Parties
The Agency describes the CONUS recruitment program as a procedure for
hiring individuals who are not currently employed by the Agency and who
reside in the U.S., Puerto Rico, or the possessions of the U.S. The
Agency asserts that, insofar as Proposal 2 would extend eligibility for
an LQA to local hires based on maintenance of a legal residence in the
U.S., Puerto Rico, or the possessions of the U.S., it is inconsistent
with section 031.11 of the DSSRs, a Government-wide regulation. The
Agency further asserts that insofar as Proposal 2 would require that an
employee's legal residence be considered his/her "place of actual
residence" for purposes of travel and transportation expenses, it
conflicts with 5 U.S.C. Sections 5722 and 5724. For these reasons the
Agency contends that the first paragraph of Proposal 2 is not
negotiable. The Agency states that the second paragraph was not
declared nonnegotiable; however "the arbitrator" refused to include
stays of actions in other areas in "the Agreement." Statement of
Position at 6.
The Union describes Proposal 2 as affording bargaining unit employees
"who have an actual place of residence" within the United States to
apply for positions in the bargaining unit other than the ones they
currently encumber and, if selected, to be treated as if they had been
recruited in the United States for purposes of eligibility for an LQA.
Reply Brief at 2. Similarly, their transportation entitlements would be
based on their "actual residence within the United States." Id.
B. Analysis and Conclusions
1. Eligibility for LQAs
As discussed above in conjunction with Proposal 1, the DSSRs
distinguish between employees recruited in the United States and those
recruited outside the United States insofar as their eligibility for an
LQA is concerned. This proposal would allow local hires who maintain a
bona fide legal residence in the U.S., Puerto Rico, or possessions of
the U.S. applying for other positions in the bargaining unit through the
Agency's CONUS recruitment program to be considered employees recruited
in the United States for purposes of section 031.1 of the DSSRs. As a
result, any of these local hires selected for another position in the
bargaining unit would have their eligibility for LQAs governed by
section 031.11 of the DSSRs rather than section 031.12.
Under Proposal 2 an employee who is actually residing overseas and
who applies for a position through the Agency's CONUS recruitment
program would qualify as an "employee recruited in the United States"
for purposes of section 031.1 of the DSSRs, if he/she maintains a
"stateside" legal residence. In our view, such an interpretation of
section 031.1 is strained. Rather, "employees recruited in the United
States," as contrasted with "employees recruited outside the United
States," more naturally refers to the location of the employee when he/
she is recruited for a position overseas. Such an interpretation is
more consistent with the intent of the laws that section 031.1 of the
DSSRs implements than that required by Proposal 2. As we discussed in
conjunction with Proposal 1, the laws providing for LQAs are intended to
compensate employees who are enticed overseas in conjunction with
Government employment rather than to grant extra compensation to
employees already in a foreign area. See Acker I, 620 F.2d at 806. To
allow an employee who is actually outside the United States when
recruited to be treated as an "employee recruited in the United States,"
based only on the facts that he/she maintains a legal residence in the
U.S., Puerto Rico or a possession of the U.S. and his/ her application
has been processed through a particular recruitment program would
substantially undercut the limitations on eligibility for LQAs that
section 031.12 on its face seeks to enforce. Therefore, the proposal
would operate to deprive that section of meaning.
There is no indication that section 031.1 has a meaning other than
that which most naturally flows from it. That is, whether an employee
is deemed to be recruited in the United States or outside the United
States is dependent on the location of the employee when recruited, not
on the existence of a legal residence at some place other than where the
employee is actually located at that time. See, for example, Comp.
Gen. No. B-195743 (unpublished) (Sept. 17, 1979) (employee who was
recruited for a position in Viet Nam after he had arrived in Viet Nam
was not recruited in the United States for purposes of section 031.1 of
the DSSRs); Comp. Gen. No. B-189463 (Nov. 23, 1977) (unpublished)
(agency's determinations that for purposes of LQA eligibility employee's
actual residence was in Greece where he was when initially appointed,
rather than San Francisco, California, was not improper); cf.
Trifunovich v. United States, 196 Ct. Cl. 301 (1971) (employee who was
temporarily in Europe at time of recruitment for position in England was
treated as an employee recruited outside the United States for purposes
of section 031.12 of the DSSRs notwithstanding claimed legal residence
in California).
Based on the foregoing, we conclude that insofar as Proposal 2
relates to the payment of LQAs it is inconsistent with section 031.1 of
the DSSRs, a Government-wide regulation and is nonnegotiable.
2. Travel and Transportation Expenses
Proposal 2 would also allow local hires who maintain a legal
residence within the U.S., Puerto Rico, or a possession of the U.S. and
who are selected for another bargaining unit position through the CONUS
recruitment program to negotiate a transportation agreement based on
that legal residence. Such employees would also be allowed constructive
travel and transportation expenses to the new posts of duty up to the
amount that they would be allowed based on their legal residence.
Under 5 U.S.C. Section 5724(d), when an employee transfers to a post
of duty outside the continental United States, his/her "expenses of
travel and transportation to and from the post shall be allowed to the
same extent and with the same limitations prescribed for a new
appointee" under 5 U.S.C. Section 5722. /5/ Under 5 U.S.C. Section
5722, payment of travel and transportation expenses is authorized for
new appointees between their "place of actual residence" at the time of
appointment or assignment to duty outside the U.S. and the place of
employment outside the continental U.S. 5 U.S.C. Section 5722(a).
Proposal 2 would treat on employee's "legal residence" as his/her "place
of actual residence."
The question of what constitutes "place of actual residence" has been
addressed by both the U.S. Claims Court and the Comptroller General in
disputes as to what constitutes a particular employee's place of actual
residence for purposes of payment of travel and/or transportation
expenses. In Brown v. United States, 5 Cl. Ct. 1 (1984), aff'd, 741
F.2d 1374 (Fed. Cir. 1984) (Brown) the Claims Court addressed the
meaning of that phrase in the context of 5 U.S.C. Section 5728. We
believe that, given the fact that the same phrase is involved, the
court's analysis is equally applicable to interpretation of 5 U.S.C.
Section 5722. In Brown, the Claims Court stated:
Congress presumably meant to require something other than mere
"residence" when it utilized the term "place of actual residence."
This is particularly understandable when it is considered that a
vast uncertainty surrounds the meaning of "residence," a term
which "has an evasive way about it, with as many colors as
Joseph's coat." In interpreting the term "residence" as used in
statutes, the courts have tended to divide the pertinent statutes
into two groups. "Residence" in the first group of statutes was
thought of as "legal residence," a concept considered somewhat
akin to domicile, in which actual residence in a location plus the
intent to make this location one's permanent home, were required.
"Residence" has generally been considered similar to "domicile" in
statutes governing voting, wills, guardianship, and other areas in
which it was thought desirable for individuals to have only one
legal home, where the place of intent to make a permanent home was
often controlling. In contrast, "residence" in other statutes has
been thought to mean "actual residence," which term has been
considered to include a more or less temporary residing place,
requiring physical presence (beyond a brief sojourn) and little
more. The word "residence" has been construed as meaning "actual
residence" or a close facsimile thereof in statutes governing
taxation, welfare eligibility, service of process, attachments,
and other areas where an individual's physical location for an
extended period, rather than his intent, is considered the
dispositive factor. Congress's literal use of the words "place of
actual residence" in Section 5728 therefore appears to eliminate
much of the ambiguity which might arise from simply using the word
"residence." We believe that such circumstance should be
considered to mean the place where one had actually (in fact, not
fictionally) resided, in a status other than as a transient or
sojourner.
5 Cl. Ct. at 11 (citations omitted).
In addressing claims that involve a determination of what constitutes
"place of actual residence" the Comptroller General has held:
The term "actual residence" is not defined in the law or
implementing regulations and is for determination from the facts
of each case. The term as used in the statute generally would be
understood to mean the place at which the appointee physically
resides at the time of his appointment. However, we have
recognized that, in a proper case, the term may include the "legal
residence" or "domicile" of the employee.
50 Comp. Gen. 644, 646 (1971) (citation omitted).
We agree with the Claims Court and the Comptroller General that the
phrase "place of actual residence," which appears in both 5 U.S.C.
Section 5728 and 5 U.S.C. Section 5722, generally refers to actual
physical presence in a location for an extended period and is something
that may include but is not synonymous with "legal residence." See also
Brown, 741 F.2d at 1376 (in affirming the Claims Court's decision, the
U.S. Court of Appeals for the Federal Circuit stated: "Actual residence
is actual physical presence in a location for an extended period and
differs from legal residence"). Consequently, because the proposal would
require, as a matter of course, that where a local hire is selected for
a transfer through the Agency's CONUS recruitment program, the local
hire's "legal residence" within the U.S., Puerto Rico, or a possession
of the U.S., be treated as his/her "place of actual residence," it is
inconsistent with 5 U.S.C. Sections 5722 and 5724 and is nonnegotiable.
We note that the Agency states that it never declared the second
paragraph of Proposal 2 nonnegotiable. The Union offers no rebuttal to
this claim. Therefore, the Union's petition for review as to that
paragraph is not properly before us. See section 7117(c) of the Statute
and section 2424.1 of the Authority's Rules and Regulations.
Article 49, Section 11
Notwithstanding any other provisions of DOD CPM Chapter 592, the
Agency will exercise the waiver authority contained in DSSR 031.12
for employees within the bargaining unit in the following manner:
DSSR Section 031.12B requirements for locally hired U.S. citizen
employees will be waived when, but for the conditions surrounding
the employment, the employee would be residing in the United
States, Puerto Rico, any U.S. possession, or the former Canal
Zone. (Employees who have a permanent legal residence in the
United States, Puerto Rico, any U.S. possession, or the former
Canal Zone shall be presumed to meet this condition.) One of the
following events must have occurred for this waiver: A. death of
the sponsoring spouse; B. divorce or separation in contemplation
of divorce (without regard to whether a separation judgment or
decree has been issued by a court); C. sponsoring spouse left the
post or area permanently; D. either spouse's work location
became so separated that daily commuting to a common home would
not be reasonable; and E. resignation, termination, discharge or
retirement of the sponsoring spouse. F. sponsoring spouse becomes
physically or mentally incapable of self-support; G. the
employee is an incumbent of a position designated as
emergency-essential. In addition, the employee must have entered
the area as the spouse of a sponsor who was eligible for the
quarters allowance or who would have been eligible if employed by
the government. In circumstances described in B, C, and D above,
LQA will be stopped should the couple remarry, reconciliation
occur, or the spouse returns to his/her post area, unless the
employee is or becomes eligible for waiver under another of the
criteria specified above.
A. Positions of the Parties
The Agency asserts that this proposal interferes with management's
right to determine its budget in that it would prescribe the use of
agency funds. In support, the Agency states that approximately 400
local hires would become eligible for an LQA based on the circumstances
set forth in this proposal and that the approximate annual cost of LQAs
is $10,000 per person. Consequently, the Agency asserts that Proposal 3
would result in additional costs of $4,000,000 per year. In support of
this argument the Agency cites Navy Charleston Naval Shipyard,
Charleston, South Carolina v. FLRA, 885 F.2d 185 (4th Cir. 1989).
The Agency argues that this proposal is inconsistent with the DSSRs
in that it would deny the agency head the discretion that the Agency
claims is granted by those regulations to determine whether unusual
circumstances in an individual case justify a waiver of section 031.12b.
Citing Department of the Navy, Military Sealift Command v. FLRA, 836
F.2d 1409 (3rd Cir. 1988) (Military Sealift Command), the Agency asserts
that it would be an insurmountable burden to require the Agency to show
that the discretion provided under the DSSRs is sole and exclusive.
The Agency further states that Proposal 3 conflicts with "DoD
1400.25, in particular, Civilian Personnel Manual 592," and that "for
the reasons stated above, there is a compelling need for this
regulation." Statement of Position at 10.
The Union asserts that a waiver of section 031.12b of the DSSRs is
negotiable because it is within the Agency's discretion. As to the
Agency's budget argument, the Union contends that the proposal does not
determine the budget of either the Agency or the Department of Defense.
In this latter regard, the Union contends that for purposes of section
7106(a)(1) the relevant "agency" is the Department of Defense. As to
the amounts presented by the Agency in support of its budget claim, the
Union asserts that they are "pulled out of thin air." Reply Brief at 3.
The Union contends that only subsection E of Proposal 3 represents an
expansion of the categories of employees who would be entitled to a
waiver of subsection 031.12b of the DSSRs because subsections A-D, F and
G mirror provisions contained in the DoD Civilian Personnel Manual that
entitle the employees covered to a waiver. /6/
The Union further argues that even assuming that DoD Directive
1400.25M and Civilian Personnel Manual Chapter 592 constitute rules or
regulations within the meaning of section 7117(a)(3) of the Statute, the
Agency has not demonstrated that a compelling need exists for these
regulations.
B. Analysis and Conclusions
We reject, as unsupported, the Agency's assertion that Proposal 3
interferes with management's right to determine its budget.
In American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604,
607-08 (1980) (Wright-Patterson), aff'd as to other matters sub nom.
Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert.
denied, 455 U.S. 945 (1982), the Authority established two separate
tests for determining whether a proposal conflicts with an agency's
right to determine its budget. The Authority held that, in order to
establish that a union proposal directly interferes with management's
right to determine its budget, an agency must either demonstrate that
the proposal: (1) prescribes the particular programs to be included in
the budget or the amount to be allocated in the budget for those
programs; and (2) entails an increase in costs that is significant and
unavoidable and is not offset by compensating benefits. See Fort Stewart
Schools v. FLRA, 110 S. Ct. 2043, 2049 (1990) (Fort Stewart).
The first budget test in Wright-Patterson makes nonnegotiable only
those proposals that are addressed to the budget per se. A proposal
will be found to violate an agency's right to determine its budget under
the first test if the proposal prescribes the particular programs or
operations an agency will include in its budget or prescribes the amount
to be allocated in the budget for those programs or operations. See
also, International Federation of Professional and Technical Engineers,
Local No. 1 and U.S. Department of the Navy, Norfolk Naval Shipyard, 38
FLRA 1589, 1593-96 (1991). Under the second test, a proposal will be
found to violate an agency's right to determine its budget if the
proposal does not, by its terms, prescribe the particular programs or
amounts to be included in an agency's budget but, nevertheless, would
result in an increase in costs that is significant and unavoidable and
not offset by compensating benefits. /7/ Wright-Patterson, 2 FLRA at
608.
Here, the Agency makes no claim that Proposal 3 prescribes programs
or operations that the Agency will include in its budget or prescribes
the amount to be allocated in the budget for those programs or
operations. Rather, the Agency's claims go to the alleged increased
costs that would result from Proposal 3. Thus, the issue in this case
concerns the second budget test. Although the Agency claims that
Proposal 3 would result in additional costs of $4,000,000 per year, /8/
it has failed to provide any information placing its budget projections
in perspective within the Agency's budget as a whole. Thus, no basis is
presented for establishing that the costs projected by the Agency are
"significant." See, for example, Fort Stewart, 110 S. Ct. at 2050.
The Agency has failed to demonstrate that Proposal 3 meets either of
the tests for determining whether a proposal conflicts with management's
right to determine its budget. The parties bear the burden of creating
a record upon which the Authority can make a decision. See, for
example, and U.S. Environmental Protection Agency, 35 FLRA 706, 711-12
(1990); National Federation of Federal Employees, Local 1167 v. FLRA,
681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal
Employees, Local 1167 and Department of the Air Force, Headquarters,
31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6
FLRA 574 (1981). A party failing to bear this burden acts at its peril.
The Agency acknowledges that under the DSSRs it is within its
discretion to determine whether "unusual circumstances" exist in
individual cases to justify a waiver of subsection 031.12b. Agency
statement of position at 9. The Authority has held that matters
concerning conditions of employment that are within the discretion of an
agency and are not otherwise inconsistent with law or applicable rule or
regulation are negotiable. For example, National Federation of Federal
Employees, Forest Service Council and U.S. Department of Agriculture,
Forest Service, Washington, D.C., 40 FLRA No. 18 (1991) (Proposal 5);
National Federation of Federal Employees, Local 2050 National Federation
of Federal Employees and U.S. Department of Agriculture, Forest Service,
35 FLRA 1008, 1014 (1990); National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986),
aff'd sub nom. Department of the Treasury, U.S. Customs Service v.
FLRA, 836 F.2d 1381 (D.C. Cir. 1988); National Treasury Employees
Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA 747 (1980). Where law or applicable regulation vest an agency with
exclusive authority or unfettered discretion over a matter, the agency's
discretion is not subject to negotiation. See for example, Illinois
National Guard v. FLRA, 854 F. 2d 1396 (D.C. Cir. 1988) (Illinois
National Guard); Police Association of the District of Columbia and
Department of the Interior, National Park Service, U.S. Park Police, 18
FLRA 348 (1985) (Park Police). /9/
We find no basis for concluding that requiring the Agency to exercise
its discretion to determine what constitutes "unusual circumstances"
through negotiations is inconsistent with the DSSRs. That is, nothing
in the DSSRs reserves that discretion solely and exclusively to the
Agency. Compare Illinois National Guard and Park Police. Additionally,
we note that the Agency makes no assertion that the circumstances set
forth in Proposal 3 could not constitute "unusual" circumstances, nor is
it otherwise apparent that those circumstances are incompatible or
irreconcilable with the standard of "unusual." That is, the
circumstances listed in subsections A-G of Proposal 3 refer to events
that readily lend themselves to being viewed as uncommon or exceptional,
and hence, "unusual." Moreover, we note that they bear a striking
similarity to the types of events that have already been determined
under Department of Defense regulations to meet the grounds for waiver
of section 031.12b. See Appendix B. We recognize that in Acker II the
Claims Court, in ruling on the reasonableness of an agency's practices
with respect to waiving subsection 031.12b, endorsed a distinction
between circumstances in which an employee's spouse had retired and
those circumstances in which an employee's spouse had died or departed
the area or where a divorce or separation had occurred. See 6 Cl. Ct.
at 511. However, we do not view the court's action as requiring a
conclusion that retirement of a spouse could not reasonably constitute
an unusual circumstance within the meaning of section 031.12. In our
view, the court did not hold that only one course of action could be
viewed as reasonable, but, rather, it concluded that a particular course
of action was not unreasonable.
Finally, we reject the Agency's assertion that Proposal 3 is
inconsistent with an agency regulation for which a compelling need
exists.
The compelling need provisions of the Statute are meant to insure
that otherwise negotiable bargaining proposals are taken outside the
duty to bargain only if the agency involved demonstrates and justifies
an overriding need for the policies reflected in the rules or
regulations to be uniformly applied throughout the agency. American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220
(1981). Therefore, an agency must (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal; and (3) demonstrate that its regulation is supported
by a compelling need with reference to the Authority's standards set
forth in section 2424.11 of its Regulations. See American Federation of
Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454
(1980). Generalized and conclusionary reasoning is not enough to
support a finding of compelling need. The Authority is not in a
position on its own to determine the purposes agency regulations are
designed to achieve or the importance the agency attaches to those
regulations. Unless the agency provides us with facts and arguments
bearing on each of these questions, we cannot judge the validity of the
agency's contentions. For example, FDIC, Madison Region, 21 FLRA at
880-81.
The only offering that the Agency makes in support of its claim that
negotiation of Proposal 3 is barred by conflict with a regulation for
which a compelling need exists is the statement "for the reasons stated
above, there is a compelling need for (its) regulation." Statement of
Position at 10. The Agency has failed to indicate the Authority's
compelling need criteria on which it relies and leaves for us to guess
how any of the arguments made in its statement of position may relate to
any or all of those criteria. This in no way meets the Agency's burden,
and, consequently, its claim of compelling need cannot be sustained.
See, for example, FDIC, Madison Region, 21 FLRA at 880-81.
Based on the foregoing, we conclude that Proposal 3 is within the
duty to bargain.
The petition for review is dismissed insofar as it concerns Proposals
1 and 2. The Agency must negotiate upon request, or as otherwise agreed
to by the parties, concerning Proposal 3. /10/
(1) The Union has requested that the Authority sever "any words,
phrases, sentences or subparts of these proposals . . . which are found
to be nonnegotiable" and "order the agency to bargain on so much of the
proposals which are found to be nonnegotiable (sic)." Union petition at
1. The Authority grants the Union's request to the limited extent that
we will rule upon those portions of the proposals that we view, as
submitted, as being able to stand independently of the rest of the
proposal and that have been specifically addressed by the parties in
their submissions to the Authority.
(2) Relevant provisions of section 031 of the DSSRs are set forth in
Appendix A of this decision.
(3) The Overseas Teachers Pay and Personnel Practices Act, Pub. L.
No. 86-91, 73 Stat. 213 (1959), addresses quarters allowances for
overseas teachers. The Overseas Differentials and Allowances Act, Pub.
L. No. 86-707, 74 Stat. 792 (1960), addresses quarters allowances for
civilian employees, in general, who are assigned overseas.
(4) In this regard, we note that the exceptions endorsed by the court
in Acker II as covering "unusual circumstances" involve situations where
an employee arrived overseas with a spouse who had been eligible for an
LQA. A reasonable inference is that the spouse had been "enticed"
overseas, with a similar indirect effect on the employee. Thus, in our
view, these situations are consistent with the general distinction
between those whose choice to live overseas is a result of employment
abroad and those whose employment abroad is coincidental with presence
abroad.
(5) When a transfer is made primarily for the convenience or benefit
of the employee, or at the employee's request, travel and transportation
expenses "may not be allowed or paid from Government funds." 5 U.S.C.
5724(h).
(6) Relevant provisions of the DoD Civilian Personnel Manual are set
forth in Appendix B of this decision.
(7) We express no opinion as to the continued viability of the second
budget test or on whether the "compensating benefits" portion of the
test should include monetary benefits only. See Tidewater Virginia
Federal Employees Metal Trades Council and U.S. Department of the Navy,
Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 949 n.2
(1990) (Norfolk Naval Shipyard).
(8) As the Union points out, Proposal 3, in large measure, concerns
categories of employees who are already eligible for waivers of
subsection 031.12b of the DSSRs under the regulations of the Department
of Defense. See note 6 above. Consequently, it is not clear that the
proposal, by itself, would provide eligibility for waivers to 400
additional employees, as claimed by the Agency.
(9) In our view, Illinois National Guard and Park Police refute the
Agency's assertion that requiring an agency to bargain on matters within
its discretion except where, under law or applicable regulation, such
discretion is committed solely and exclusively to the agency's authority
results in an "insurmountable burden." Rather, those cases indicate that
it is possible, in appropriate instances, to establish that discretion
is indeed unfettered or exclusive. Moreover, insofar as the court's
decision in Military Sealift Command questioned whether "sole and
exclusive discretion" was "an empty set," we note that the court went on
to state: "(w)e need not, however, broadly decide that FLRA's test,
properly applied, has no utility in defining the scope of bargaining
over agency discretion outside the area of pay and pay practices." 836
F.2d at 1415. Thus, we do not view Military Sealift Command as
constituting a rejection of the Authority's general approach to
collective bargaining where agency discretion is involved.
(10) In finding that this proposal is within the duty to bargain, we
make no judgment as to its merits.
Section 031 of the DSSRs provides in relevant part:
031 United States Citizen Employees
031.1 Quarters Allowances
031.11 Employees Recruited in the United States
Quarters allowances prescribed in Chapter 100 may be granted to
employees who were recruited by the employing government agency in
the United States, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, and the possessions
of the United States. In the case of married couples see Section
134.13.
031.12 Employees Recruited Outside the United States
Quarters allowances prescribed in Chapter 100 may be granted to
employees recruited outside the United States, provided that: a.
the employee's actual place of residence in the place to which the
quarters allowance applies at the time of receipt thereof shall be
fairly attributable to his/her employment by the United States
Government; and b. prior to appointment, the employee was
recruited in the United States, the Commonwealth of Puerto Rico,
the Commonwealth of the Northern Mariana Islands, the former Canal
Zone, or a possession of the United States, by: (1) the United
States Government, including its Armed Forces; (2) a United
States firm, organization, or interest; (3) an international
organization in which the United States Government participates;
or (4) a foreign government and had been in substantially
continuous employment by such employer under conditions which
provided for his/her return transportation to the United States,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, the former Canal Zone, or a possession of the
United States; or c. as a condition of employment by a
Government agency, the employee was required by that agency to
move to another area, in cases specifically authorized by the head
of agency. Subsection 031.12b may be waived by the head of agency
upon determination that unusual circumstances in an individual
case justify such action. An employee who was determined to be
eligible to be granted a living quarters allowance under former
Section 031.12d. last effective March 25, 1971 and last published
in TL:SR 174 dated August 11, 1968, may continue to be eligible
for and be granted a living quarters allowance while continuously
employed in a foreign area and while he/she is otherwise eligible
for such allowance. APPENDIX B
DoD 1400.25-M, CPM 592 provides in relevant part:
(3) Officials identified in paragraph 1-2.a. of this chapter
(that is, appointing officers) will waive DSSR section 031.12b
requirements for locally hired U.S. citizen employees when, but
for the condition surrounding the employment, the employee would
be residing in the United States, Puerto Rico, any U.S.
possession, or the former Canal Zone. One of the following events
must have occurred for this waiver:
(a) Death of the sponsoring spouse.
(b) Sponsoring spouse becomes physically or mentally incapable
of continued employment with the Government.
(c) Divorce or legal separation; a legal separation is deemed
to exist at such time as either the employee or spouse shall have
initiated legal action to dissolve the marriage or one separates
from bed and board short of applying for a divorce.
(d) Sponsoring spouse left the post or area permanently.
(e) Either spouse's work location became so separated that a
common dwelling could not be maintained.
(f) The employee is an incumbent of a position designated as
emergency-essential in accordance with DoD Directive 1404.10.
In addition, in situations (a) through (e), the employee must
have entered the area as the spouse of a sponsor who was eligible
for the quarters allowance, or who would have been eligible if
employed by the government and the employee's reasons for being in
the area continuously from the time of arrival must have been
fairly attributable to the sponsor's circumstances that meet the
conditions specified in section 031.11 or 031.12b, DSSR. In
situations (c), (d), or (e), the LQA will be stopped should the
couple remarry, reconciliation occur, or the spouse return to
his/her post or area. Area is defined as geographical locality
(See glossary of terms, appendix D, JTR, Vol 2). In situation
(f), the waiver is effective only for the period during which a
crisis situation is declared to exist under the provisions of DoD
Directive 1404.10.
40 FLRA 421
40 FLRA NO. 40
Dept. of the Air Force, Scott Air Force Base, Illinois and NAGE,
Local R7-23 (Cohen, Arbitrator), Case No. 0-AR-2026 (Decided April 26,
1991)
7122(a)
ARBITRATION EXCEPTION
ARBITRABILITY DETERMINATION
AGENCY REGULATIONS
SCOPE OF AGREEMENT
REMAND TO ARBITRATOR
The Arbitrator determined that a grievance over a failure to receive
a cash award for a rating was not arbitrable because an Air Force
regulation provides that the nonreceipt of a cash award may not be
grieved under the negotiated grievance and arbitration procedures. The
Arbitrator rejected the Union's argument that the Agency violated a
provision of the agreement by raising the question of arbitrability for
the first time after the second step of the grievance procedure.
The Authority noted at the outset that under the Statute, collective
bargaining agreements, rather than agency rules and regulations, govern
the disposition of matters to which they both apply when there is a
conflict between the agreement and the agency rule or regulation. In
reaching his decision, the Arbitrator relied on Agency regulation
without referencing or discussing the section of the agreement defining
a grievance. The Authority noted the agreement definition of grievance
and that the matter specifically excluded from the scope of that
definition do not include grievances concerning consideration for or
receipt of a cash award. As the record was deemed insufficient for
determining whether the award was deficient under the Authority's tests,
the case was remanded to the parties for resubmission to the Arbitrator
so that he could make the necessary findings concerning arbitrability
consistent with Authority case law.
Case No. 0-AR-2026
U.S. DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS
(Agency)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Gerald Cohen. A grievance was filed challenging the Agency's
denial of a cash award to the grievant. The Arbitrator concluded that
the grievance was not arbitrable.
The Union filed exceptions 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.
For the following reasons, we conclude that the case should be
remanded to the parties for resubmission to the Arbitrator.
Prior to this grievance, the parties settled another grievance which
alleged that the grievant received an improper performance rating for
the period ending June 30, 1989. The settlement agreement raised the
grievant's performance rating to excellent.
When the grievant failed to receive a cash award for his rating, he
filed another grievance. The grievant claimed that he was entitled to
an award because the 29 other employees in his section, who were in the
same job classification as the grievant and who were rated excellent or
better, all received cash awards. The grievance was not resolved and
was submitted to arbitration. The Arbitrator framed the issues as
follows:
1. Is the grievance arbitrable?
2. If so, did the Grievant receive fair and equitable consideration
for a monetary award in comparison with other employees?
Award at 1.
The Arbitrator concluded that the grievance was not arbitrable
"because AFR (Air Force Regulation) 40-452(f) . . . provides that the
'nonreceipt' of a cash award, . . . may not be . . . grieved . . .
under negotiated grievance and arbitration procedures." Id. at 7
(emphasis in original). The Arbitrator rejected the Union's argument
that the Agency violated Article XXI, Section 13 of the parties'
collective bargaining agreement by raising the question of arbitrability
for the first time after the second step of the grievance. The
Arbitrator determined that the question of arbitrability did not
constitute a new issue and that it may be raised at any time.
Accordingly, the Arbitrator denied the grievance.
The Union contends that the Arbitrator's award is contrary to law and
is based on a nonfact. In support, the Union asserts that under the
Supreme Court's decision in United Steel Workers of America v. Warrior
and Gulf Navigation Co., 363 U.S. 574, 582 (1960), an arbitrator should
resolve doubts about arbitrability in favor of arbitration. The Union
also contends that "the CBA (collective bargaining agreement) and the
law is the determinant of what is or is not arbitrable." Exceptions at
1. Noting that the parties' agreement includes a "broad scope grievance
procedure," the Union asserts that "there are few exceptions to what can
be grieved" and that "any matter which is not expressly excluded from
the grievance procedure . . . can be grieved." Id.
The Union also contends that the award is based on a "non-fact"
because the grievance does not concern "the actual receipt of an
award(.)" Id. at 2. The Union argues that the grievance was clearly
over "the consideration and fairness and equitability of the nonreceipt
of an award, not the nonreceipt in and of itself." Id.
Under the Statute, collective bargaining agreements, rather than
agency rules and regulations, govern the disposition of matters to which
they both apply when there is a conflict between the agreement and the
agency rule or regulation. 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, 194 (1990) (Fort
Campbell).
In reaching his decision that the grievance was not arbitrable, the
Arbitrator relied on Agency regulation AFR 40-452(f) without referencing
or discussing the section of the parties' collective bargaining
agreement defining a grievance. In this regard, we note that the
agreement defines a grievance as "a request by any employee or group of
employees acting as individuals, the union, or the employer for
appropriate relief in a matter of concern or dissatisfaction which is
subject to the control of the union or the employer." Labor-Management
Agreement between Local R7-23, National Association of Government
Employees and Scott Air Force Base, Illinois and Defense Commercial
Communications Office, As Amended, Attachment to Union's Exceptions.
Those matters specifically excluded from the scope of the grievance
procedure do not include grievances concerning consideration for or
receipt of a cash award.
In this case, the record is insufficient for us to determine whether,
consistent with Fort Campbell, the award is deficient. The Arbitrator
stated only that "arbitrability must be ruled against the Union because
AFR 40-452(f)" does not permit grieving the nonreceipt of a cash award
under several procedures including the negotiated grievance procedures.
Award at 7 (emphasis added). The Arbitrator did not determine whether
the portion of the parties' collective bargaining agreement addressing
the scope of the negotiated grievance procedure superseded that
regulation.
Consequently, we conclude that this case should be remanded to the
parties for resubmission to the Arbitrator so that the Arbitrator can
make the necessary findings concerning arbitrability consistent with
Fort Campbell. See, for example, U.S. Department of the Army, Blue
Grass Army Depot, Lexington, Kentucky and International Association of
Machinists and Aerospace Workers, Local Lodge 859, 38 FLRA 1232, 1238-39
(1990).
The case is remanded to the parties for resubmission to the
Arbitrator in accordance with this decision.
40 FLRA 405
40 FLRA NO. 39
Dept. of the Air Force, 9th Combat Support Group, Beale Air Force
Base, California and AFGE, Local 2025, Case No. 89-CA-90644 (Decided
April 26, 1991)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT
REPORT DIRECTLY TO WORK SITE RATHER THAN SHOP
LUNCH AT WORK SITE RATHER THAN SHOP
At issue was the Respondent's action in unilaterally changing the
working conditions of certain employees by requiring them to report
directly to the work site rather than the shop, and take their lunch at
the work site rather than the shop, without first notifying the Union
and providing it with an opportunity to bargain over the impact and
implementation of the changes. The Authority adopted the Judge's
recommendation that the Respondent's actions violated section 7116(a)(
1) and (5), finding no basis for reversing the Judge's credibility
findings.
Case No. 89-CA-90644
DEPARTMENT OF THE AIR FORCE, 9TH COMBAT SUPPORT GROUP, BEALE AIR
FORCE BASE, CALIFORNIA
(Respondent)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2025, AFL-CIO
(Charging Party/Union)
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 unilaterally changing conditions of employment
of bargaining unit employees without first notifying the Union and
providing it with an opportunity to bargain over the impact and
implementation of the changes. The Judge recommended that the
Respondent be directed to cease and desist from its unlawful actions and
to take certain affirmative action.
The Respondent filed exceptions to the Judge's decision. The General
Counsel filed an opposition to the Respondent's exceptions.
The Respondent's exceptions are based on its disagreement with the
credibility resolutions on which the Judge's findings and conclusions
are based. The demeanor of witnesses is an important factor in
resolving issues of credibility. Only the Judge has had the benefit of
observing the witnesses while they testified. We will not overrule a
judge's determinations regarding the credibility of witnesses unless a
clear preponderance of all the relevant evidence demonstrates that the
determinations were incorrect. For example, General Services
Administration and General Services Administration, Region III, 39 FLRA
446 (1991). We have examined the record carefully and find no basis for
reversing the Judge's credibility findings.
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. Consistent with the foregoing discussion, we
find that no prejudicial error was committed and we affirm the Judge's
rulings.
Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions, and recommended Order.
Pursuant to section 2423.29 of the Authority's Rule and Regulations
and section 7118 of the Statute, the Department of the Air Force, 9th
Combat Support Group, Beale Air Force Base, California, shall:
1. Cease and desist from:
(a) Unilaterally changing working conditions of bargaining unit
employees by: (1) requiring certain employees attached to the Civil
Engineering Squadron (CES) to report directly to a job site instead of
reporting to their shops located in the CES Compound; (2) requiring
certain CES employees to take their lunch breaks at the job site rather
than at their respective shops in the CES Compound or other places of
their choosing; and (3) denying certain CES employees the opportunity
to return to the shops located in the CES Compound 15 minutes prior to
lunch or the end of their shifts in order to wash-up.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured them 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) Notify the Union and, upon request, negotiate over the impact and
implementation of any intended change which would require the CES
employees to report directly to the job site and/or take their break
lunch only at the job site and/or forgo the opportunity to return to the
shops located in the CES Compound 15 minutes prior to lunch or the end
of their shifts in order to wash-up.
(b) Post at all locations on Beale Air Force Base, where unit
employees are employed, 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 Commander, Beale Air Force Base,
and shall be posted and maintained for 60 consecutive days thereafter in
conspicuous 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, 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.
WE WILL NOT unilaterally change working conditions of bargaining unit
employees by: (1) requiring certain employees attached to the Civil
Engineering Squadron (CES) to report directly to a job site instead of
reporting to their shops located in the CES Compound; (2) requiring
certain CES employees to take their lunch breaks at the job site rather
than at their respective shops in the CES Compound or other places of
their choosing; and (3) denying certain CES employees the opportunity
to return to the shops located in the CES Compound 15 minutes prior to
lunch or the end of their shifts in order to wash-up.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL notify the Union and, upon request, negotiate over the impact
and implementation of any intended change which would require the CES
employees to report directly to the job site and/or take their lunch
break only at the job site and/or forgo the opportunity to return to the
shops located in the CES Compound 15 minutes prior to lunch or the end
of their shifts in order to wash-up.
(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, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
Case No. 89-CA-90644
DEPARTMENT OF THE AIR FORCE, 9TH COMBAT SUPPORT GROUP, BEALE AIR
FORCE BASE, CALIFORNIA
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2025, AFL-CIO
Charging Party
Susan E. Jelen, Esquire, For the General Counsel
Major Phillip G. Tidmore, Captain Miriam L. Sumpter, For the
Respondent
Before: BURTON S. STERNBURG, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on September 1, 1989, by American
Federation of Government Employees (AFL-CIO), Local 2025, hereinafter
called the Union, a Complaint and Notice of Hearing was issued on
February 28, 1990, by the Regional Director for Region VIII, Federal
Labor Relations Authority, Los Angeles, California. The Complaint
alleges that the Department of the Air Force, 9th Combat Support Group,
Beale Air Force Base, California, hereinafter called the Respondent,
violated Sections 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, hereinafter called the statute, by
virtue of its actions in unilaterally changing the working conditions of
certain unit employees by requiring them "to report directly to the work
site rather than the shop, and take their lunch at the work site rather
than the shop, without first notifying the Union and providing it with
an opportunity to bargain over the impact and implementation of said
changes."
A hearing was held in the captioned matter on May 23, 1990, in
Sacramento, California. All parties were afforded the full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues involved herein. The Respondent and
General Counsel submitted post-hearing briefs on July 9 and 10, 1990,
respectively, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Since 1986, the Union has been the exclusive representative of a unit
composed of all Wage Board and Classification Act employees serviced by
the Civilian Personnel Office, Beale Air Force Base, California. This
unit includes employees in the Civil Engineering Squadron (CE) which is
responsible for the operation and maintenance of all buildings located
on Beale AFB which is approximately eighty thousand acres in size. The
approximately 140 employees in the CE unit are classified as
electricians, carpenters, painters, plumbers, etc. At all times material
herein, Colonel Terry Fenstad was the Commander of CE and Major Linda
Morey was the Chief of Operations and Maintenance. Under Major Morey in
the supervisory hierarchy was Captain Hubbard, Chief of Heavy Repair and
Chief Master Sergeant McAllister who was the Deputy Chief of Heavy
Repair.
CE "Work Force Policies and Practices, Regulation 11-7" Section 3(a)
entitled "assigned duty location," provides "that all CE personnel are
expected to report to, be present at, and remain at assigned duty
stations as directed by their respective cost center supervisor . . .
."
Section (f)(2), entitled "Reporting to job sites," provides as
follows:
(2) If more convenient, and at the discretion of the work center
supervisor, personnel may be required to report directly to the
job site and leave from the job site at the end of the work day .
. . .
According to the testimony of Union president Leroy Bright, Mr. Jim
Middleton and Mr. Dale Williams, who have been part of the CE unit for
11, 10 and 24 years, respectively, prior to August 1989 they always
reported to their respective areas in the CE compound prior to starting
work. At such time they were given their respective daily work
assignments. Following receipt of their daily assignments they would
pick up a government vehicle and proceed to the areas where their work
assignments were to be performed. At lunch time they would return to
the CE compound, wash up, and eat their lunch, utilizing tables etc.,
provided for such purpose. /1/ Following lunch, they would then return
to their assigned work areas and remain there until the end of their
shift. At the end of the shift they would return to the CE compound,
wash up, and leave the premises in their private vehicles.
In August 1989, a number of employees in the CE began working on a
renovation project for the Distinguished Visitors Suites (DVS). This
project which lasted until November 1989 utilized employees from CE,
including, among others, those employees classified as electricians,
painters, plumbers and carpenters.
On August 11, 1989, Mr. Dale Williams and Mr. Dave Kessler, both
carpenters assigned to the CE, approached Union president Leroy Bright
before work and informed him that they had been told by Major Morey that
beginning Monday, August 14, 1989, they were to report directly to the
DVS job site in their private vehicles and that they should also take
their lunches at the job site. Inasmuch as this was a change from their
normal procedure, i.e., reporting to and leaving from their assigned
areas in the CE compound and also taking lunch at the CE compound, the
employees complained to Mr. Bright.
Mr. Bright then contacted Major Morey and informed her that the CE
employees were upset with the changes in reporting to work, etc. being
implemented at DVS, and that he would like to discuss the matter of the
changes with her. Major Morey replied that she had read the union
contract and that she did not have to talk to him. When Mr. Bright
pursued the matter further, Major Morey made it clear that she was of
the opinion that she could do as she pleased. On the same day Mr.
Bright also contacted Mr. Bill Owens, Respondent's Labor Relations
Officer and Ms. Gail Williamson, Civilian Personnel Officer, concerning
the change and attempted to bargain thereon. Neither of Respondent's
representatives made any meaningful response to Mr. Bright's request for
bargaining.
The following week an unspecified number of employees from CE who
were assigned work at the DVS were required to report directly to DVS
without any prior stop at their respective areas in the CE compound, as
was their usual practice. /2/
At the DV Suites employees did not have the same type of facilities
available to them. According to Mr. Dale Williams, who was on the job
for the entire time, except for a two week period when he was serving as
acting supervisor in the shop, bathroom facilities were not available in
the DV Suites after the first two weeks. He tried to keep one of the
bathrooms available as long as possible, but because of the rush nature
of the job, he was unable to do so beyond the first weeks. After these
bathroom facilities were torn up as part of the renovation, the
employees used an outside faucet for clean up. Although Respondent
eventually made arrangements for use of facilities in adjacent quarters,
these facilities were only available when the maids were present. The
CE employees were on the job site at 6:30 a.m., some 2 and 1/2 hours
prior to the time the maids were at their assigned locations.
According to Mr. Williams, Major Morey first ordered the employees to
remain at the job site during their lunch break. Eventually, however,
employees were allowed to leave and take their lunch elsewhere. Due to
the location of DVS there wasn't enough time to go anywhere else. /3/
The DV Suites were about a ten minute drive to the CE shop. There was
no snack bar near the DV Suites, although the Officers' Club and the
golf course were close. Major Morey did make arrangements for the
military to eat at the hospital mess hall at the beginning of the job.
No lunch arrangements were originally made for the civilian employees.
Following employee complaints, Respondent then felt compelled to do
something for the civilian employees.
During the project, Major Morey sent a letter to the employees
requesting their comments on how everyone liked the job. According to
Mr. Williams, the responses were uniformly negative, complaining about
the lack of bathroom and clean up facilities and eating facilities.
Employees also complained directly to Commander Fenstad when he visited
the job site. After these complaints, Major Morey made arrangements for
the employees to use the bathroom facilities in the maids quarters. She
also arranged to have the lunch wagon come by the project and for the
civilians to eat at the hospital. Mr. Williams had heard something
about the possibility of eating at the Officers' Club, but Major Morey
had never told him that this option was available.
During this same period, Mr. James Middleton, the Union's first vice
president, approached Captain Richards, who was filling in for Major
Morey as Operations and Maintenance Chief. Mr. Middleton had heard that
the military employees working at the DV Suites were allowed to use
government vehicles to go to the hospital dining facility, another
eating facility not normally available to unit employees. Mr. Middleton
thought this same type of accommodation should be worked out for the
civilian employees and requested that Captain Richards work out such an
arrangement. Captain Richards refused, saying that it could not be
done. Captain Richards did not give any reason for this refusal.
Captain Richards did not indicate to Mr. Middleton that any other
arrangements had been made to accommodate the civilian employees while
they were working on the DV Suites.
Contrary to the foregoing mutually corroborated and credited
testimony of Messrs. Bright, Middleton and Williams, Respondent's
witnesses, Mr. Everett Burkard, Deputy Chief Engineer, and Mr. Robert
Demeyer, Deputy Chief of Operations for Beale Air Force Base, testified
that "the majority of time, 75 to 80% of the time, the (CE) employees
report directly to their shop in the morning . . . and then the rest of
the time they report directly to the job site." Reporting to the job
site is at the discretion of their respective supervisors. When
questioned as to what job sites as opposed to reporting to the CE
compound that the employees were ordered to report directly to, the
supervisors cited such locations as the base hospital, the self help
store, Building 1086, the base landfill and a re-roofing job which
occurred in the mid-1980's. Other than the re-roofing job, it appears
that the other sites which were cited by the supervisors employed CE
employees on a permanent daily basis for extended periods of time. The
CE employees assigned to such permanent sites, unlike the other CE
employees, do not get different job assignments every day and go to
different locations. With respect to the re-roofing job, Mr. Dale
Williams, who worked on the job, denied that he reported directly to the
job site rather than the CE compound at the beginning of his shift.
Both Mr. Burkard and Mr. Demeyer deny that the CE employees were
forced to take their lunch break at the DVS.
The General Counsel, who urges a credibility determination in favor
of its witnesses, takes the position that the Respondent violated
Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in
unilaterally changing a condition of employment without first giving the
Union the opportunity to bargain over the procedures to be utilized in
implementing the change and appropriate arrangements for employees
adversely affected by the change. Thus, it is the position of the
General Counsel that it was an established practice for the employees to
report to the CE compound at the beginning of their respective shifts
prior to proceeding to their assigned work sites in government vehicles,
and that such practice was adhered to even when an employee was assigned
to a long term project. Additionally, the General Counsel contends that
the CE employees routinely returned to the CE shop prior to lunch and
enjoyed a fifteen minute clean up period both before lunch and the end
of the shift. Although the employees generally ate lunch in the CE
compound, there was no requirement that they do so. Inasmuch as the
aforementioned practices had been consistently exercised over a
substantial period of time with the consent of agency management, it is
the General Counsel's position that they became a condition of
employment which could not be changed without first giving the Union
prior notice and the opportunity to bargain over the impact and manner
of implementation of any change.
Respondent, on the other hand, takes the position that it did not
change any condition of employment. According to Respondent, which
urges a credibility determination in favor of its witnesses, the
practice of having employees report directly to their work sites has
been followed for years and there was never any restrictions upon where
the employees could eat lunch. In such circumstances, Respondent was
under no obligation to bargain with the Union.
Having credited the testimony of Messrs. Bright, Middleton and
Williams, I find that it was the established practice (1) for the
employees to report to the CE compound at the beginning of the shift and
then to proceed to their assigned work areas in government vehicles,
irrespective of the length of the work assignment; (2) for the
employees to routinely return to their shop in the CE compund some
fifteen minutes prior to their scheduled lunch hour and the end of their
shift for purposes of cleaning up; and (3) for the employees to take
their lunch either in the shop at the CE compound or at a place of their
choosing. I further find that the above practices, having been
consistently exercised over a substantial period of time with the
knowledge and consent of Respondent management, have become established
terms and conditions of employment. See, Marine Corps Logistics Base,
Barstow, California, 33 FLRA 196; Social Security Administration, Mid
America Service Center, Kansas City, Missouri, 9 FLRA 229.
In view of the above findings concerning the practice of the CE unit
employees in reporting to their respective shops in the CE compound
prior to starting work at other areas on the Base and being free to take
fifteen minutes for clean up time prior to the commencement of their
luncheon break at a place of their choosing, I conclude that
Respondent's action in changing the conditions of employment of the CE
unit employees by (1) having them report directly to the DVS rather than
their respective shops in the CE compound (2) restricting the place
where the CE unit employees could take their lunch break to the DVS, and
(3) depriving the CE employees of a fifteen-minute wash up period before
lunch and the end of the shift, without first notifying the Union and
affording it the opportunity to bargain with respect to the impact and
manner of implementation of the above described changes in conditions of
employment violated Sections 7116(a)(1) and (5) of the Statute. See
Marine Corps Logistics Base, Barstow, California, supra; U.S.
Government Printing Office, 13 FLRA 203, 204. /4/
Having concluded that Respondent violated Sections 7116(a)(1) and (5)
of the Statute by virtue of its action in unilaterally changing the
conditions of employment of various CE unit employees, it hereby
recommended that the Federal Labor Relations Authority adopt the
following order designed to effectuate the purposes and policies of the
Statute.
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 Department of the Air Force, 9th Combat Support
Group, Beale Air Force Base, California, shall:
1. Cease and desist from:
(a) Unilaterally changing working conditions of bargaining unit
employees by (1) requiring certain employees attached to the Civil
Engineering Squadron to report directly to a job site instead of
reporting to their shops located in the Civil Engineering Squadron
Compound, (2) requiring certain employees attached to the Civil
Engineering Squadron to take their lunch break at the job site rather
than at their respective shops in the Civil Engineering Squadron
Compound or other places of their choosing, (3) denying certain
employees attached to the Civil Engineering Squadron the opportunity to
return to the shops located in the Civil Engineering Squadron Compound
fifteen minutes prior to lunch or the end of their shift in order to
wash up.
(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) Notify the Union and, upon request, negotiate over the impact and
manner of implementation of any intended change which would require the
employees attached to the Civil Engineering Squadron to report directly
to the job site and/or take their lunch only at the job site, and/or
forgo the opportunity to return to the shops located in the Civil
Engineering Squadron compound fifteen minutes prior to lunch or the end
of their shift in order to wash up.
(b) Post at all locations on Beale Air Force Base where unit
employees are employed, 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 Commander, Beale Air Force Base,
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, Region IX, Federal Labor
Relations Authority, 901 Market Street, Suite 220, San Francisco, CA
94103 in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, February 22, 1991.
/s/ BURTON S. STERNBURG
BURTON S. STERNBURG
Administrative Law Judge
(1) The CE compound area had hot water, soap, showers, vending
machines and a refrigerator, all of which were available to the CE
employees. The employees were not required to eat in the CE compound
area. However, while employees were free to eat wherever they desired,
they were not allowed to use government vehicles for transportation to
other lunch facilities. The employees, upon returning to the CE
compound were allowed 15 minutes before lunch and 15 minutes before the
end of their shift for wash up.
(2) Mr. Bright who performed painting work at DVS was not ordered to
report directly to DVS rather than the CE compound at the beginning of
his shift.
(3) Employees were only allowed 30 minutes for lunch.
(4) Inasmuch as it appears that all parties concede that Respondent
was exercising a Section 7106(a) management right when it made the
changes which are the subject matter of the instant complaint,
Respondent was only obligated to bargain over the impact and manner of
implementation of the changes.
WE WILL NOT unilaterally change the working conditions of bargaining
unit employees by requiring certain employees to report directly to a
job site instead of reporting to their shop, by requiring these
employees to take their lunch at the job site rather than at the shops
located in the Civil Engineering Squadron Compound or other places of
their choosing, and by requiring these employees to forgo the
opportunity to return to the Civil Engineering Squadron Compound fifteen
minutes prior to lunch and/or the end of their shift in order to wash
up, without first notifying the American Federation of Government
Employees, Local 2025, AFL-CIO, herein called the Union, the exclusive
representative of certain of our employees, and providing the Union an
opportunity to bargain over the impact and manner of implementation of
such a charge.
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 notify the Union and, upon request, negotiate over the impact
and manner of implementation of any intended change requiring employees
to report directly to the job site and/or take their lunch at the job
site and/or to forgo the opportunity to return to their respective shops
in the Civil Engineering Squadron Compound fifteen minutes before lunch
or the end of their shift in order to wash up.
(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, Region IX,
whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103, and whose telephone number is: (415) 744-4000.
40 FLRA 371
40 FLRA NO. 38
AFGE, Local 2022 and Dept. of the Army, Headquarters, 101st Airborne
Division, Ft. Campbell, Kentucky, Case No. 0-NG-1737 (Decided April 26,
1991)
7105(a)(2)(E)
7106(a)(2)(A) & (B)
7106(b)(1)
7103(a)(14)
7106(a)(2)(B)
7106(b)(3)
NEGOTIABILITY DETERMINATION
SHIFT CHANGE FOR UNION REPRESENTATION
OVERTIME FOR UNION REPRESENTATION
5 U.S.C. 5542
29 U.S.C. 204(f)
RIGHT TO ASSIGN WORK & EMPLOYEES
NUMBER, TYPES AND GRADES
ADMINISTRATIVE LEAVE FOR BOY/GIRL SCOUT FUNCTIONS
CONDITIONS OF EMPLOYMENT
ASSIGN WORK
CLEAN UP TIME
HOURS OF WORK
5 U.S.C. 6101
5 U.S.C. 203(g)
APPROPRIATE ARRANGEMENTS
WORK OVER 16 HOURS IN 24 HOURS
PRIORITY CONSIDERATION FOR AGENCY EMPLOYEES
Proposal 1, provides that in order to permit the adjustment of an
employee's grievance in circumstances where an employee and his or her
representative work different shifts, the Agency will either change the
employee's shift to that of his or her representative or pay overtime.
The Authority, noting that the proposal neither requires nor prohibits
the reassignment of employees to different shifts, concluded that the
proposal does not directly interfere with the Agency's rights to assign
employees and assign work, or to determine the numbers, types and grades
of employees. Accordingly, that portion of the proposal which gives
management the option of making a shift reassignment to facilitate the
adjustment of an employee's grievance is negotiable.
Proposal 2, requires the Agency to grant up to 40 hours of
administrative leave to attend Boy or Girl Scout functions. The
Authority found that the proposal concerns a condition of employment,
but is nonnegotiable in that it directly interferes with the right to
assign work.
Proposal 3 allows employees 10 minutes for personal cleanup time
before lunch periods and at the end of the workday. The Authority
stated that the proposal provides it the opportunity to reexamine the
statutory and regulatory restrictions, other than those in the Statute,
applicable to proposals involving cleanup time. The Authority
thereafter addressed the proposal as to its application to wage grade
and to general schedule employees. The Authority first looked at
General Schedule employees excluded from coverage of the FLSA and
concluded that nothing in applicable law or regulations explicitly or
implicitly prohibits an agency from requiring employees to clean up as a
regular assigned duty during the basic 40-hour workweek or during
periods of overtime. Moreover, there is no showing that the Agency
could not make the determinations required by the C.F.R. that cleanup
time: (1) is closely related to the employee's principal activities;
(2) is indispensable to the performance of the principal activities;
and (3) takes more than 10 minutes per workday.
The Authority then looked at General Schedule and Wage Grade
employees covered by FLSA, and concluded that nothing in law or
regulation prohibits the agency from assigning employees covered by the
parties' agreement to cleanup during their regular tour of duty or on
overtime. The Authority stated that it would no longer adhere to
previous Authority decisions holding otherwise.
As to the right to assign work, as the proposal applies to Wage Grade
employees, the Authority concluded that the Agency has not demonstrated
or even argued that the requirements of section 704(a) of CSRA are not
met. Thus, the Agency is required to bargain over cleanup time for wage
grade employees. As to General Schedule employees, the Authority found
that the proposal directly interferes with the agency's right to assign
work. Further, the Authority concluded that the proposal is not an
appropriate arrangement as it applies to GS employees because it
excessively interferes with management's right to assign work.
Proposal 4, which provides that employees may not work over 16 hours
with a 24-hour period without the Garrison Commander's approval, was
found to be nonnegotiable because it excessively interferes with
management's right to assign work. As to whether the proposal is an
appropriate arrangement, the Authority concluded that the burdens
imposed on the Agency outweigh the benefit to employees and thereby
excessively interferes with management's rights.
Proposal 6 provides that Agency employees will receive first
consideration for positions, that they will be considered before
non-agency candidates are solicited, ranked or considered for selection.
The Authority concluded that the proposal directly interferes with
management's right to select under 7106(a)(2)(C).
On Proposal 3, Member Armendariz issued a concurring opinion stating
that he would find it negotiable insofar as the Agency has discretion
under law and regulation to compensate employees for time spent in
personal cleanup during regular tours of duty or during overtime and to
the extent that the Agency exercises that discretion in a manner that is
consistent with applicable law and regulation.
Case No. 0-NG-1737
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2022
(Union)
U.S. DEPARTMENT OF THE ARMY HEADQUARTERS, 101ST AIRBORNE DIVISION
FORT CAMPBELL, KENTUCKY
(Agency)
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) and involves five
proposals.
Proposal 1 provides that in order to permit the adjustment of an
employee's grievance in circumstances where an employee and his or her
representative work different shifts, the Agency will either change the
employee's shift to that of his or her representative or pay overtime.
Proposal 1 is found to be negotiable. Proposal 2, which requires the
Agency to grant up to 40 hours of administrative leave to employees to
attend Boy or Girl Scout functions, is nonnegotiable because it directly
interferes with management's right to assign work under section
7106(a)(2)(B). Proposal 3, which allows employees 10 minutes for
personal cleanup time before lunch periods and at the end of the
workday, is negotiable under section 704(a) of the Civil Service Reform
Act to the extent that it covers wage grade employees. To the extent
that Proposal 3 covers general schedule employees, it is negotiable as
an appropriate arrangement under section 7106(b)(3).
Proposal 4, which provides that employees may not work over 16 hours
within a 24-hour period without the Garrison Commander's approval, is
nonnegotiable because it excessively interferes with management's right
to assign work under section 7106(a)(2)(B). Proposal 6, which requires
that Agency employees receive consideration for positions before other
candidates are solicited, ranked, or considered for selection, directly
interferes with management's right to select under section 7106(a)(2)(
C) and is nonnegotiable.
Article 7.
Section 7-2.
Supervisors will give their employees a reasonable amount of
time (see Section 7-4) during working hours to prepare their
grievances or appeals; to secure advice from Union officials
concerning their rights and privileges under this Agreement, and
to obtain information or assistance from Union officials
pertaining to their grievances and/or appeals. Each employee,
prior to leaving his/her work area, will obtain permission from
his/her immediate/first-line supervisor. If for any reason that
supervisor is not available, the employee will obtain permission
from the next/second-line supervisor in the employee's chain of
supervision. A supervisor may require an employee to temporarily
delay his/her departure if the employee's absence will unduly
disrupt work. Overtime pay or compensatory time off in lieu of
overtime pay is not authorized for employees to prepare and to
present grievance(s), unless such overtime is officially ordered
and approved by management. However, when an employee works a
shift different than their (sic) representative, the employee's
shift will be changed to the representative's shift or overtime
will be paid.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
1. The Agency
The Agency contends that the disputed portion of Proposal 1 directly
interferes with its rights to assign employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. Additionally, the Agency
asserts that Proposal 1 interferes with management's right to determine
the numbers, types, and grades of employees needed for a particular tour
of duty under section 7106(b)(1) of the Statute. The Agency states that
the "plain language" of the disputed portion of Proposal 1 requires
"that an employee's shift must be changed to the same shift as the union
representative when the employee needs to prepare and present a
grievance, or overtime must be paid." Statement of Position at 2.
However, the Agency notes the Union's agreement, in its petition, "'that
overtime compensation should not be used to prepare for grievances.'"
Id. at 4.
The Agency asserts that the disputed portion of Proposal 1 "gives no
consideration at all to the operational needs of the agency, the
qualifications necessary for specific kinds of work, or to the number of
employees needed to perform a particular function." Id. at 2.
Specifically, the Agency contends that not all of the employees
represented by the Union perform shift work. Therefore, the Agency
asserts, "having an employee transfer to a different shift does not
necessarily mean the employee would be assigned similar duties, or that
there would be any work available at all." Id. Additionally, the Agency
argues that "there will be instances where an employee's absence for an
undetermined period will severely impact the staffing resources of a
particular office or shop." Id. at 3.
The Agency also argues that "an employee who would otherwise be able
to resolve a grievance during his or her regularly scheduled tour of
duty is not entitled to overtime compensation to accommodate a union
representative who happens to be assigned to another work schedule." Id.
at 4. In support, the Agency cites National Treasury Employees Union v.
Gregg, No. 83-546 (D.D.C. Sept. 28, 1983) (Gregg) and Warner Robins Air
Logistics Center, Warner Robins, Georgia and American Federation of
Government Employees, Local 987, 23 FLRA 270 (1986) (Warner Robins).
2. The Union
The Union contends that the disputed portion of Proposal 1 does not
interfere with the Agency's rights under the Statute. In support, the
Union argues as follows:
(i)t is not uncommon for employees, representatives, and
management officials to have completely different work hours. If
overtime compensation cannot be considered, then our only option
is to terminate the grievance meeting and continue it another day
when overtime can be scheduled or the employee can be reassigned
long enough to process the grievance.
Petition for Review at 2. The Union contends that the Agency has the
"option" to schedule the meetings on "the employee(')s shift, on regular
time, on overtime, or on the representative(')s shift." Id. at 3.
Therefore, the Union argues that when the Agency schedules grievance
meetings during "either the employee's or representative's off-duty
time, then they have, in essence, directed or required them to report at
a designated location at a specified time prior or subsequent to their
regular shift." Id. at 2. The Union argues that "such time should be
compensable at the existing overtime rate . . . ." Id.
B. Analysis
Initially, we note that the disputed portion of Proposal 1 is not
expressly limited to meetings where grievances are adjusted. However,
the Union asserts that Proposal 1 is intended to address the situation
which occurs when management schedules grievance meetings and employees,
representatives, and management officials have "completely different
work hours." Petition for Review at 2. Moreover, as the Agency notes,
the Union states its "agree(ment) that overtime compensation should not
be used to prepare for grievances." Id. Based on this record, we
conclude that the disputed portion of Proposal 1 applies only when a
meeting is scheduled to adjust an employee's grievance and the employee
is not on the same shift as his or her representative.
The disputed portion of Proposal 1 requires the Agency to take one of
two options when the employee does not work the same shift as his or her
representative. One option is to change the employee's shift to the
representative's shift. If management does not change the employee's
shift, then Proposal 1 requires that management pay overtime.
The negotiability of the disputed portion of Proposal 1 depends on
whether the Agency has discretion to pay overtime for the presentation
of a grievance. General schedule employees who work in excess of 8
hours a day or 40 hours a week are entitled to either overtime
compensation or compensatory time off under 5 U.S.C. Sections 5542 and
5543. In addition, general schedule employees covered by the Fair Labor
Standards Act (FLSA) are also entitled to overtime compensation under
the provisions of the FLSA if the entitlement would be greater under the
FLSA than under 5 U.S.C. Section 5542. See 5 C.F.R. Section 551.513.
Prevailing rate employees are entitled to overtime compensation, "in
accordance with sections 5544 and 5550 of title 5, United States Code,
or, if eligible, under the provisions of (FLSA) whichever provides the
greater overtime benefit." 5 C.F.R. Section 532.503(a)(1). Both 5
U.S.C. Sections 5544 and 5550 provide that prevailing rate employees are
"entitled to overtime pay for overtime work in excess of 8 hours a day
or 40 hours a week."
5 U.S.C. Section 5542 provides for the payment of overtime
compensation to covered employees for "hours of work officially ordered
or approved in excess of 40 hours in an administrative workweek, or . .
. in excess of 8 hours in a day(.)" The Office of Personnel Management
(OPM) is authorized to promulgate regulations implementing the overtime
provisions of 5 U.S.C. Section 5542. See 5 U.S.C. Section 5548. These
regulations, which are set out in 5 C.F.R. Part 550, "Pay Administration
(General)," do not specifically discuss whether time spent adjusting
grievances is considered hours of work; however, we find nothing in
these regulations which would prevent the Agency from ordering and
approving overtime for that purpose.
OPM also is responsible for administering the provisions of the FLSA
that are applicable to Federal employees. See 29 U.S.C. Section 204(
f). Implementing regulations, governing hours of work determinations
and overtime pay entitlements for general schedule and prevailing rate
employees, are set out in 5 C.F.R. Part 551, "Pay Administration under
the Fair Labor Standards Act." See 5 C.F.R. Sections 532.503(a)(1) and
551.101(c). The regulations provide generally that "(t)ime that is
considered hours of work . . . shall be used . . . to determine an
employee's entitlement to . . . overtime pay under the (FLSA.)" 5 C.F.
R. Section 551.401(d). Time spent adjusting grievances is defined as
hours of work under 5 C.F.R. Section 551.424(a), which provides:
(t)ime spent by an employee adjusting his or her grievance (or any
appealable action) with an agency during the time the employee is
required to be on the agency's premises shall be considered hours
of work.
If the Agency schedules a meeting to adjust a grievance, we find that
management is requiring the grievant to be on the Agency's premises,
within the meaning of 5 C.F.R. Section 551.424(a). Consequently,
consistent with this regulation, we conclude that when an agency
schedules a meeting to adjust an employee's grievance, the time the
grievant is in the grievance meeting is hours of work for the purpose of
computing overtime.
In reaching this conclusion, we note that the language in section (b)
of 5 C.F.R. Section 551.424, which concerns time spent performing
representational functions, establishes a different standard to
determine hours of work. 5 C.F.R. Section 551.424(b) specifically
provides:
"Official time" granted an employee by an agency to perform
representational functions during those hours when an employee is
otherwise in a duty status shall be considered hours of work.
This includes time spent by an employee performing such functions
during regular working hours (including regularly scheduled
overtime hours), or during a period of irregular, unscheduled
overtime work, provided an event arises incident to
representational functions that must be dealt with during the
irregular, unscheduled overtime period.
It is clear from the wording of 5 C.F.R. Section 551.424(b) that an
agency may not schedule union representatives for overtime in order to
permit them to conduct representational functions. See Gregg; Warner
Robins. In contrast, section 551.424(a), which applies to time spent by
"an employee adjusting his or her grievance . . . ," states that hours
of work includes "time the employee is required to be on the agency's
premises." Under this subsection, an agency may schedule a meeting to
adjust an employee's grievance and the time spent by the employee
constitutes hours of work. Accordingly, we conclude that the disputed
portion of Proposal 1, which requires the Agency to pay overtime to the
employee for time spent at a meeting scheduled by management to adjust
his or her grievance, if the employee's representative is on a different
shift, is negotiable.
The Agency cites Gregg and Warner Robins in support of its argument
that Proposal 1 is nonnegotiable. However, these cases are inapposite
because they concerned whether employees, acting as union
representatives, could receive overtime compensation for
representational functions. In Gregg, the U.S. District Court for the
District of Columbia held that under section 7131(a) of the Statute,
union representatives could not receive overtime compensation for time
spent beyond their normal workweek serving on a union negotiating team.
The court noted that this decision was consistent with 5 C.F.R. Section
551.424(b). Similarly, the Authority held in Warner Robins that a union
representative, who represented a grievant at a meeting scheduled after
the representative's regular workday, was not entitled to overtime
compensation under the FLSA. 23 FLRA at 272.
Further, we distinguish the Authority's decision in Wright-Patterson
Air Force Base, Ohio, 2750th Air Base Wing and American Federation of
Government Employees, Local No. 1138, 23 FLRA 390 (1986)
(Wright-Patterson). In Wright-Patterson, the Authority set aside that
portion of an arbitrator's award which granted overtime pay to employees
for time spent beyond their regularly scheduled duty hours as union
witnesses at an arbitration hearing. Relying on Warner Robins, the
Authority found "that time spent attending the arbitration hearing as
union witnesses is not hours of work under (5 C.F.R. Section 551.401(a))
which would entitle the employees to overtime pay or compensatory time
off under FLSA." Id. at 392. Additionally, the Authority found that 5
C.F.R. Section 551.424(a) did not apply to an employee's "attendance as
a union witness at the arbitration hearing to which he was not a party
and at which his attendance was not required." Id. at 393. In contrast
to Wright-Patterson, which concerned employees who assisted a union as
witnesses at an arbitration hearing, the disputed portion of Proposal 1
addresses employees who are adjusting their own grievances.
Finally, we reject the Agency's assertions that Proposal 1 directly
interferes with its rights to assign work and employees under section
7106(a)(2)(A) and (B) and interferes with the right to determine the
numbers, types, and grades of employees under section 7106(b)(1).
Because the Agency has the option under Proposal 1 to assign overtime to
an employee to adjust his or her grievance, the proposal does not
require management to reassign an employee to another shift when his or
her representative is not on the same shift. Rather, Proposal 1
preserves management's right not to reassign the employee because of
operational needs, or for any other reason, by giving the Agency the
option of paying the grievant overtime.
As Proposal 1 neither requires nor prohibits the reassignment of
employees to different shifts, we conclude that the proposal does not
directly interfere with the Agency's rights to assign employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute or to
determine the numbers, types, and grades of employees under 7106(b)(1).
Accordingly, that portion of Proposal 1 which gives management the
option of making a shift reassignment to facilitate the adjustment of an
employee's grievance is negotiable. See American Federation of
Government Employees, Department of Education Council of AFGE Locals and
Department of Education, 35 FLRA 56, 61 (1990) (Proposal 1) ("A
requirement that an agency 'consider' exercising its rights does not
require the agency to exercise its rights.").
C. Conclusion
In summary, we find that the disputed portion of Proposal 1, which is
applicable to situations where an employee and his or her representative
work on different shifts, and which requires that the Agency change an
employee's shift to that of his or her representative or pay overtime to
permit the adjustment of the employee's grievance, is negotiable.
Article 14.
Section 14-7.
Permanent employees will be excused from work without charge to
leave for up to 40 hours annually to attend Boy Scouts of
America/Girl Scouts of America summer camp, national jamborees,
world jamborees, Philmont Scout Ranch, and other scout functions.
These employees must meet the following requirements: a. Have
been in an official scouting leadership position (Scout Master or
Assistant Scout Master) for 5 years or longer when applying, and
b. Have been in civil service for 5 years or longer before
applying. (The entire proposal is in dispute.)
A. Positions of the Parties
The Agency states that Proposal 2 does not concern a condition of
employment, within the meaning of section 7103(a)(14) of the Statute.
According to the Agency, Proposal 2 has "no direct relationship on the
work situation or on the employment relationship of unit employees."
Statement of Position at 5. The Agency notes the Authority's position
that it will examine whether a proposal vitally affects the working
conditions of employees in the bargaining unit. Proposal 2, according
to the Agency, "does not vitally affect the employees' working
conditions." Id. The Agency states that "there is no direct
relationship between an employee's scouting activities and the work
situation or the employment relationship of bargaining unit employees."
Id.
In addition, the Agency asserts that Proposal 2 interferes with its
right to assign work under section 7106(a)(2)(B) of the Statute because
Proposal 2 "bases the grant of leave on the employee's desire to
participate in scouting activities, rather than the agency's need to
accomplish its mission." Id. at 7. The Agency argues that Proposal 2
would limit management's right to determine when assigned work will be
performed.
The Union argues that Proposal 2 concerns a condition of employment
within the meaning of the Statute. The Union asserts that the
availability of leave is a factor in choosing or retaining employment on
a particular job, and, therefore, it is a working condition.
B. Analysis and Conclusions
1. Proposal 2 Concerns a Condition of Employment
Proposal 2 requires the Agency to excuse permanent employees from
work for up to 40 hours annually to attend Boy and/or Girl Scout
functions if they meet certain requirements. We reject the Agency's
argument that Proposal 2 does not concern a condition of employment
within the meaning of section 7103(a)(14) of the Statute. Section
7103(a)(14) of the Statute defines "conditions of employment," in
relevant part, as "personnel policies, practices, and matters . . .
affecting working conditions." A proposal affecting conditions of
employment of bargaining unit employees is within the duty to bargain
under the Statute if it is consistent with applicable law or
regulations. American Federation of Government Employees, Local 32,
AFL-CIO and Office of Personnel Management, 33 FLRA 335, 338 (1988),
decision on remand, AFGE, Local 32, v. FLRA, 853 F.2d 986 (D.C. Cir.
1988).
Administrative leave is defined as "an absence from duty
administratively authorized without loss of pay and without charge to
leave." Federal Personnel Manual chapter 630, subchapter 11-1. Because
administrative leave allows employees to be absent from duty with pay it
affects conditions of employment. The fact that the administrative
leave requested in Proposal 2 is for participation in a non-work related
activity does not alter our conclusion that administrative leave
concerns a condition of employment. Accordingly, we find that Proposal
2 concerns a condition of employment within the meaning of section
7103(a)(14) of the Statute.
2. Proposal 2 Directly Interferes With the Right to Assign Work
Proposal 2 states that "employees will be excused from work without
charge to leave for up to 40 hours" to attend Boy/Girl Scout functions.
Statement of Position at 3. Thus, Proposal 2 would require the Agency,
without exception, to authorize employees' administrative leave for up
to 40 hours to attend scouting functions if they meet the proposed
requirements.
Proposals requiring management to grant leave prevent management from
requiring an employee to remain on duty to perform necessary work and,
thereby, directly interfere with the right to assign work under section
7106(a)(2)(B) of the Statute. See, for example, American Federation of
Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort
Rucker, Alabama, 28 FLRA 1172, 1178 (1987) (Provision 7) (provision
authorizing employees 4 hours of excused absence to donate blood in
addition to travel time to and from the blood center held to directly
interfere with management's right to assign work). Proposal 2 would
require the Agency to grant administrative leave for scouting activities
to those employees who meet certain requirements. As the proposal does
not preserve the Agency's right to decide whether or not to grant
requests for administrative leave, it directly interferes with the
Agency's right to assign work. As the Union does not argue that
Proposal 2 constitutes an appropriate arrangement, it is nonnegotiable.
Compare American Federation of Government Employees, Local 2298 and U.S.
Department of the Navy, Polaris Missile Facility, Atlantic, Charleston,
South Carolina, 35 FLRA 591, 593 (1990) (proposal providing
administrative leave for training held negotiable because management had
determined that the training was necessary and training was provided
during duty hours).
Article 17.
Section 17-1. CLEAN-UP TIME
Employer and the Union agree normally ten minutes for personal
clean-up time will be allowed employees to their lunch periods and
at the end of their workday. Exception: Supervisors may grant
designated employees specific approval for longer periods of
clean-up time when the type of work being performed by the
employees, either on a continuous basis or on any given occasion,
justifies a large amount of clean-up time, the employee(s) may
request the supervisor to furnish the reasons for the denial.
Clean-up time will not be used to extend an employees' (sic)
regular scheduled tour of duty nor will it be the basis for
granting or compensating overtime pay unless the employee was
prevented, for work reasons, from his/her normal, allowable
clean-up time.
Section 17-2.
This Article is also applicable to employees required to perform
overtime work under Article 18. (The entire proposal is in
dispute.)
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 3 is nonnegotiable because it
interferes with its right to assign work under section 7106(a)(2)(B) of
the Statute by "preclud(ing) the assignment of other types of work
during the specified period." Statement of Position at 8. Additionally,
the Agency rejects the Union's claim that Proposal 3 constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. In response to the Union's allegation that employees dealing
with toxic materials need cleanup time, the Agency contends that "any
employees who are required to work with toxic chemicals are provided
with protective equipment and clothing." Id. at 10. Finally, the Agency
also argues that Proposal 3 conflicts with 5 U.S.C. Section 6101 and is,
therefore, nonnegotiable under section 7117(a)(1) of the Statute.
2. The Union
The Union contends that cleanup time has been negotiated by the
parties since 1967. According to the Union, "prevailing rate employees
in the bargaining unit are entitled to continue to negotiate (cleanup
time) under Section 9(b) of the Prevailing Rate Systems Act, . . .
since this was a matter subject to negotiations between the parties
prior to August 19, 1972." Reply Brief at 2 (emphasis omitted).
Further, the Union states that cleanup time is necessary because both
prevailing rate and general schedule employees "are dealing with toxic
materials or are required by management to maintain personal cleanliness
as part of their duties(.)" Petition for Review at 5. The Union also
asserts that "OSHA standards require the clean-up of the work area
and/or the washing of hands and other areas of exposure." Reply Brief at
2. The Union argues that employees use toxic products "installation
wide" in many departments, such as Medical-Dental, the Fire Department,
the oil lab, the Directorate of Logistics, and the Directorate of
Engineering and Housing. Id. at 3.
Additionally, the Union argues that Proposal 3 constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute because it "mitigates the adverse effect on employees (1) of the
unclean and potentially unhealthful conditions in their work and (2)
management(')s assignment and direction to maintain personal cleanliness
or face adverse consequences and/or discipline." Petition for Review at
5. The Union states "this practice has existed for over a decade
without adversely affecting the mission(s) (of the Agency)." Reply Brief
at 6.
B. Preliminary Matter
The Union filed a motion requesting that the Authority hold:
a fact finding hearing . . . to determine those employees entitled
to maintain the right to negotiate cleanup time: (1) due to the
assignment of work detrimental to their health and safety, i.e.,
exposure to toxic materials, germs and infectious diseases, etc.;
and (2) the adverse effect of the requirement to maintain personal
cleanliness, i.e., under uniform dress codes, performance
evaluations, etc."
Motion for Hearing, October 6, 1989.
The Union argues that the Authority should hold a hearing because
"the only way a determination of whether employees are entitled to
retain the right to clean up time would be to examine the circumstances
of each department branch and office and the circumstances of each
employee's job installation wide." Reply Brief at 6. According to the
Union, the Agency and the Authority should assume some of the "burden of
proving the adverse impact, including evidence pertaining to a massive
number of individual employees . . . once the Union has shown a prima
facia (sic) case exists." Id.
We reject the Union's argument that the Authority should hold a fact
finding hearing concerning Proposal 3. Initially, we note that whether
a hearing is held in a negotiability matter is within the Authority's
discretion. See 5 C.F.R. Section 2424.9 ("A hearing may be held, in the
discretion of the Authority, before a determination is made under
section 7117(b) or (c)." (emphasis added)). In negotiability matters it
is well established that the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination.
A party failing to meet its burden acts at its peril. National
Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891
(D.C. Cir. 1982); National Federation of Federal Employees, Local 2050
and U.S. Environmental Protection Agency, 35 FLRA 706, 717-18 (1988).
Here, the Union had the opportunity in its Petition for Review and a
Reply Brief to explain its position fully and provide any information
necessary for the Authority to make a negotiability determination on
Proposal 3. Accordingly, we deny the Union's motion that the Authority
provide an additional opportunity to the Union to support its arguments
by holding a fact finding hearing.
Finally, in its Motion for Hearing, the Union requested that if
Proposal 3 was found to be negotiable "that the proposal be referred
back to the parties for further fact finding or negotiations with the
assistance of the Federal Service Impasses Panel." Motion for Hearing,
October 6, 1989. In this regard, we note that section 7119(b)(1)
provides that when a negotiation impasse exists "either party may
request the Federal Service Impasses Panel (FSIP) to consider the
matter(.)" Therefore, whether FSIP assistance is requested is a matter
within the control of the parties. See National Treasury Employees
Union, Chapter 83 and Department of the Treasury, Internal Revenue
Service, 35 FLRA 398, 414-15 (1990) for a discussion of FSIP's role in
collective bargaining.
C. Analysis and Conclusions
Proposal 3 provides employees with cleanup time both during their
regularly scheduled workdays (section 17-1) and during scheduled
overtime assignments (section 17-2). As the Agency points out, in
International Brotherhood of Electrical Workers, Local 2080 and
Department of the Army, U.S. Army Engineer District, Nashville,
Tennessee, 32 FLRA 347, 363-65 (1988) (Army Engineer), the Authority
held that a provision requiring the agency to provide employees with "a
reasonable amount of time . . . to clean up prior to lunch and at the
end of the workday()" was nonnegotiable because it conflicted with 5 U.
S.C. Section 6101. /2/ The Authority stated, in this regard, that
section 6101 requires a basic workweek to consist of 40 hours of work
and that time set aside for personal cleanup "cannot be considered
'work' or 'employment' for purposes of fulfilling the requirement for a
40-hour workweek." Id. at 365. See also National Federation of Federal
Employees, Local 1655 and U.S. Department of Defense, National Guard
Bureau, Department of Military Affairs, Illinois Air National Guard, 35
FLRA 740, 748-50 (1990) (Illinois Air National Guard); National
Association of Government Employees, SEIU, AFL-CIO and National Guard
Bureau, Adjutant General, 26 FLRA 515, 516-17 (1987).
Proposal 3 provides us with an opportunity to reexamine the statutory
and regulatory restrictions, other than those in the Statute, applicable
to proposals involving cleanup time. We will examine those statutory
and regulatory restrictions first, followed by an analysis of the
Agency's right to assign work under the Statute. We also note that the
bargaining unit in this case includes non-supervisory general schedule
and wage grade (prevailing rate) employees. See, for example, Statement
of Position at 2. Although non-supervisory wage grade employees are
covered by the Fair Labor Standards Act (FLSA), non-supervisory general
schedule employees may be excluded from coverage of the FLSA based on
the nature of their positions. See, for example, Federal Personnel
Manual (FPM) letter 551-7. Thus, we will address the negotiability of
the two sections of Provision 3 as they apply to general schedule
employees excluded from coverage of the FLSA and as they apply to wage
grade and general schedule employees covered by the FLSA.
On reexamination of the statutory and regulatory restrictions, other
than those in the Statute, applicable to proposals involving cleanup
time, we now conclude, for the following reasons, that such proposals do
not conflict with applicable laws and regulations.
1. Hours of Work
(a). General Schedule Employees Excluded from Coverage of the FLSA
We note first that nothing in 5 U.S.C. Section 6101, set out above,
and nothing in 5 C.F.R. part 610, entitled "Hours of Duty," both of
which concern an agency's obligation to establish basic 40-hour work
schedules for employees, define what will constitute work or prohibit an
agency from assigning personal cleanup during regular duty hours.
General schedule employees who work in excess of 8 hours a day or 40
hours a week are entitled to either overtime compensation or
compensatory time off under 5 U.S.C. Sections 5542 and 5543. Nothing in
5 U.S.C. Sections 5542 or 5543 precludes an agency from assigning
personal cleanup during periods of overtime.
In order to implement the various provisions of law concerning the
establishment of basic workweeks and overtime, the Office of Personnel
Management (OPM) has promulgated 5 C.F.R. part 550, entitled "Pay
Administration (General)," which concerns pay administration for general
schedule employees. We note that although 5 C.F.R. part 550 does not
define "work," it contains provisions concerning whether certain
activities denoted as "principal activities" and "preshift/ postshift
activities" are compensable as hours of work. For example, with respect
to overtime compensation for general schedule employees, 5 C.F.R.
Section 550.112(a) provides, as relevant here, that:
(a) Time spent in principal activities. Principal activities are
the activities that an employee is employed to perform. They are
the activities that an employee performs during his or her
regularly scheduled administrative workweek (including regular
overtime work) and activities performed by an employee during
periods of irregular or occasional overtime work . . . .
Further, 5 C.F.R. Section 550.112(b) provides, in relevant part, as
follows:
(b) Time spent in preshift or postshift activities. A preshift
activity is a preparatory activity that an employee performs prior
to the commencement of his or her principal activities, and a
postshift activity is a concluding activity that an employee
performs after the completion of his or her principal activities.
Such activities are not principal activities defined in paragraph
(a) of this section. (1)(i) If the head of a department reasonably
determines that a preshift or postshift activity is closely
related to an employee's principal activities, and that the total
time spent in that activity is more than 10 minutes per daily tour
of duty, he or she shall credit all of the time spent in that
activity, including the 10 minutes, as hours of work.
(2) A preshift or postshift activity that is not closely
related to the performance of the principal activities is
considered a preliminary or postliminary activity. Time spent in
preliminary or postliminary activities is excluded from hours of
work and is not compensable, even if it occurs between periods of
activity that are compensable as hours of work.
OPM has defined "principal activities" for purposes of non-overtime
and overtime work in Federal Personnel Manual (FPM) Supplement 990-2,
Book 550, Appendix I, at a.(1) as follows:
Principal activities are the activities that an employee is
employed to perform. Simply stated, that are the duties of his or
her position. They include all activities performed by an
employee during his or her regularly scheduled administrative
workweek, including regular overtime work. They also include all
activities performed by an employee during a period of irregular
or occasional overtime work . . . ."
It appears, therefore, that for purposes of pay administration under
5 C.F.R. part 550 and FPM Supplement 990-2, Book 550, work consists of
the activities that an employee is employed to perform. It is also
clear that the duties an employee is employed to perform include duties
that are not necessarily related to the employee's classification or
position. See, for example, National Federation of Federal Employees,
Local 1655 and Department of Military Affairs, Illinois Air National
Guard, 35 FLRA 815 (1990); Independent Letterman Hospital Worker's
Union and Department of the Army, Nutrition Care, Letterman Army Medical
Center, 29 FLRA 456 (1987) (Proposal 1). OPM notes, in this regard,
that because it is a long-standing rule that any time, however small, an
employee is required to spend on assigned duties must be counted, "an
employee must be compensated for every minute of work performed during
his or her regularly scheduled workweek, including regular scheduled
overtime." FPM Supplement 990-2, Book 550, Appendix I at a.(2)(a).
OPM has also promulgated detailed guidance for the treatment of
activities occurring prior to or after a work shift and has noted that
there is no listing by category of preshift or postshift activities that
are considered work and, thus, compensable, and activities that are
considered preliminary or postliminary activities and, thus, not
compensable. Rather, "(w)hether a preshift or postshift activity is
considered work or is considered a preliminary or postliminary activity
depends on the facts and circumstances of each individual employment
situation." FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2.
Further, it is noted in Exhibit 2 that an activity such as changing
clothes before and after the daily tour of duty which is generally
considered to be a preliminary or postliminary activity and, thus, not
compensable, is compensable "when extraordinary circumstances are
present to make the clothes changing indispensable to the performance of
the (employee's) principal activities and where the changing of clothes
is required by law, by rule of the employer, or by the nature of the
work." Id.
We find nothing in applicable law or regulations that explicitly or
implicitly prohibits an agency from requiring employees to clean up as a
regular assigned duty during the basic 40-hour workweek or during
periods of overtime. Moreover, even in circumstances where cleanup
duties are not assigned to employees, if an agency determines that
cleanup time: (1) is closely related to the employee's principal
activities; (2) is indispensable to the performance of the principal
activities; and (3) takes more than 10 minutes per workday, then the
employees are to be compensated for that activity under 5 C.F.R.
Section 550.112(b). There is no showing in this case that the Agency
would be unable to make these determinations with respect to cleanup
time for General Schedule employees excluded from coverage of the FLSA.
(b). General Schedule and Wage Grade Employees Covered by the FLSA
An agency's obligation to establish basic 40-hour work schedules for
employees under 5 U.S.C. Section 6101 and 5 C.F.R. Section 610 also
applies to general schedule and wage grade employees covered by the
FLSA. As stated above, nothing in 5 U.S.C. Section 6101 and nothing in
5 C.F.R. part 610 limits an agency's right to assign personal cleanup
during the basic 40-hour workweek.
Similarly, there is no definition of "work" in the FLSA. See 29 C.
F.R. Section 785.6 ("The (FLSA), however, contains no definition of
'work'"); Compare 29 U.S.C. Section 203(g) (defining "employ" as "to
suffer or permit to work.") However, we note that the courts have
interpreted the concept of "work" under the FLSA broadly. See, for
example, Hill v. U.S., 751 F.2d 810, 812 (6th Cir. 1984), cert. denied
sub nom. Cummings v. U.S., 474 U.S. 817 (1985), rehearing denied 474 U.
S. 1014 (1985) (court of appeals held that "work" includes "'physical or
mental exertion' for the employer's benefit(.)") (Citation omitted). In
addition, OPM regulations implementing the FLSA as it applies to Federal
employees, sets forth the following "(b)asic principles" in section
551.401:
(a) All time spent by an employee performing an activity for the
benefit of an agency and under the control or direction of the
agency is "hours of work." Such time includes: (1) Time during
which an employee is required to be on duty; (2) Time during
which an employee is suffered or permitted to work(.)
We note that general schedule and wage grade employees are entitled
to overtime compensation either under the FLSA or under any other
authority depending on which authority provides the greater benefit. 5
C.F.R. Section 551.513. As indicated above, General Schedule employees
are entitled to overtime compensation or compensatory time off under 5
U.S.C. Sections 5542 and 5543. As also stated above, nothing in 5 U.S.
C. Sections 5542 or 5543 precludes an agency from assigning personal
cleanup during periods of overtime. Wage grade employees are entitled
to overtime under 5 U.S.C. Section 5544. Nothing in 5 U.S.C. Section
5544 concerning the overtime entitlement for wage grade employees
prohibits an agency from assigning personal cleanup during overtime.
OPM has also issued regulations concerning the overtime entitlement
for employees covered by the FLSA in 5 C.F.R. Section 551.412, which
provides, in relevant part, as follows:
(a)(1) If an agency reasonably determines that a preparatory or
concluding activity is closely related to an employee's principal
activities, and is indispensable to the performance of the
principal activities, and that the total time spent in that
activity is more than 10 minutes per workday, the agency shall
credit all of the time spent in that activity, including the 10
minutes, as hours of work.
(b) A preparatory or concluding activity that is not closely
related to the performance of the principal activities is
considered a preliminary or postliminary activity. Time spent in
preliminary or postliminary activities is excluded from hours of
work and is not compensable, even if it occurs between periods of
activity that are compensable as hours of work.
OPM has stated that "(p)reshift and postshift activities under title
5 United States Code, are the same as preparatory and concluding
activities under the FLSA." FPM Supplement 990-2, Book 550, Appendix I
at b.(1). As indicated earlier in this decision, there is no listing by
category of preshift or postshift activities that are considered work
and, thus, compensable, and activities that are considered preliminary
or postliminary activities and, thus, not compensable. Instead, as
stated by OPM, "(w)hether a preshift or postshift activity is considered
work or is considered a preliminary or postliminary activity depends on
the facts and circumstances of each individual employment situation."
Id. at Exhibit 2. Further, also as indicated earlier in this decision,
it is noted in Exhibit 2 that although an activity such as changing
clothes before and after the daily tour of duty is generally considered
to be a preliminary or postliminary activity and, thus, not compensable,
such activity is compensable "when extraordinary circumstances are
present to make the clothes changing indispensable to the performance of
the (employee's) principal activities and where the changing of clothes
is required by law, by rule of the employer, or by the nature of the
work." Id.
Similar to part 550, nothing in part 551 prohibits an agency from
requiring employees to cleanup as a regular assigned duty. Moreover,
even in circumstances where cleanup duties are not assigned to
employees, an agency must compensate employees for the performance of
those duties if an agency determines that cleanup duties will last more
than 10 minutes per workday, are closely related to an employee's
principal activities, and are indispensable to the performance of the
employee's principal activities. Indeed, as provided in section 3 of
the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 203(o), time
spent cleaning up which is otherwise a part of principal activity
constitutes hours of work unless the parties' custom, practice, or
collective bargaining agreement excludes such time. Section 203(o)
provides:
Hours worked. -- In determining . . . the hours for which an
employee is employed, there shall be excluded any time spent in
changing clothes or washing at the beginning or end of each
workday which was excluded from measured working time during the
week involved by the express terms of or by custom or practice
under a bona fide collective-bargaining agreement applicable to
the particular employee.
29 U.S.C. Section 203(o) has been applied by the Comptroller General to
Federal employees to find an entitlement to pay for time spent by food
inspectors in changing their clothes. 60 Comp. Gen. 611 (1981). See
also Steiner v. Mitchell, 350 U.S. 247, 255 (1956) (court held that the
"clear implication" of 29 U.S.C. 203(o) "is that clothes changing and
washing, which are otherwise a part of the principal activity, may be
expressly excluded from coverage by agreement."). In other words,
unless cleanup time, which is otherwise part of a principal activity, is
expressly excluded from hours of work by custom, practice, or an
agreement, that time is included within such hours and, as such,
constitutes a compensable activity under the FLSA. Compare 29 U.S.C.
Section 254 (employers are not liable for failing to pay for certain
activities unless the parties have expressly agreed that the activities
are compensable).
There is no indication in the record before us that the Union is
seeking anything other than to require the Agency to assign employees
the work of cleaning up. Further, we find nothing in 5 C.F.R. part 551,
or the FLSA, which would make illegal an agency determination that
employees be required to cleanup during their regular tours of duty or
on overtime or, in circumstances where cleanup duties are not assigned
to employees, from reasonably determining whether cleanup duties are
closely related to an employee's principal activities, and whether they
are indispensable to the performance of the employee's principal
activities. In fact, it is undisputed that in the case now before us,
the Agency has, through collective bargaining, agreed that such time
constitutes hours of work for over 10 years. There is, therefore, no
evidence that the parties have agreed, under 29 U.S.C. Section 203(o),
to exclude time spent cleaning up from hours of work. As the Agency
does not assert that it acted illegally, and as nothing in law or
regulation so indicates, we conclude that nothing in law or regulation
prohibits the agency from assigning employees covered by that agreement
to cleanup during their regular tours of duty or on overtime.
The case now before us is distinguishable from that in American
Federation of Government Employees, Local 987 and U.S. Department of the
Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 207-13 (1990)
(Member Armendariz concurring in part and dissenting in part) (Robins
Air Force Base), petition for review filed sub nom. Department of the
Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990). The proposal
in that case sought overtime compensation for employees whose departure
from work was delayed because of a malfunction of a security gate.
There, the employees had ceased work, and the Authority found that
waiting at the gate was a postliminary activity for the employees. By
contrast, the proposal in this case seeks the Agency's agreement to
authorize or approve cleanup time. The Union is, in essence, seeking to
require the Agency to assign the employees the work of cleaning up.
Stated otherwise, the Union here seeks to negotiate over the work to be
assigned to employees during overtime periods. If the Agency agreed, as
it has done for over 10 years, to officially order or approve cleanup
time, cleanup time would constitute hours of work and payment, whether
regular or overtime, would follow.
Consistent with the foregoing, we have no basis on which to conclude
that cleanup time cannot constitute compensable work. Accordingly, we
will no longer adhere to previous Authority decisions so holding.
2. Right to Assign Work
(a). Wage Grade Employees
The bargaining unit includes wage grade employees who are covered by
section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392,
codified at 5 U.S.C. Section 5343 (Amendments). Statement of Position
at 9 and Reply Brief at 2.
Section 704(a) 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) (1988), provides that agencies must continue to negotiate
on those terms and conditions of employment and other employment
benefits, with respect to prevailing rate employees to whom section 9(
b) of Pub. L. No. 92-392 applies, which were the subject of negotiation
in accordance with prevailing rates and practices prior to August 19,
1972, without regard to any provision of the Statute. See United States
Information Agency, Voice of America, 37 FLRA 849 (1990) (VOA), decision
on remand, 895 F.2d 1449 (D.C. Cir. 1990), petition for review filed sub
nom. United States Information Agency, Voice of America v. FLRA, No.
90-1582 (D.C. Cir. Dec. 4, 1990). In VOA, the Authority held that
cleanup time relates to terms and conditions of employment because it
concerns work assignments. 37 FLRA at 868.
In this case the Agency has not demonstrated or even argued that the
requirements of section 704(a) of the CSRA are not met. Thus, we find
that the Agency is obligated to bargain over cleanup time for wage grade
employees. Id. at 869.
(b). General Schedule Employees
We have held consistently that proposals requiring an agency to
provide employees with cleanup time during their hours of duty directly
interfere with an agency's right to assign work under section 7106(a)(
2)(B) of the Statute. See, for example, National Association of
Government Employees, Locals R12-122, R12-222 and U.S. Department of
Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295
(1990) (Proposal 1) (Washington National Guard); Illinois Air National
Guard, 35 FLRA at 740 (Proposal 4). Proposal 3 would require the Agency
to provide employees with cleanup time during their regular tours of
duty and on overtime. Accordingly, we find that it directly interferes
with the Agency's right to assign work.
As Proposal 3 directly interferes with the Agency's right to assign
work, it is nonnegotiable unless it constitutes an appropriate
arrangement, under section 7106(b)(3) of the Statute, for employees who
are adversely affected by the exercise of a management right. In
determining whether a provision constitutes an appropriate arrangement,
the Authority first determines whether the provision is intended to be
an "arrangement" for employees adversely affected by management's
exercise of a management right. If a proposal is determined to be 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 (1986) (Kansas Army National Guard).
The Union argues that Proposal 3 is intended to "mitigate() the
adverse effect(s) on employees (1) of the unclean and potentially
unhealthful conditions in their work and (2) management(')s assignment
and direction to maintain personal cleanliness or face adverse
consequences and/or discipline." Petition for Review at 5. According to
the Union, employees throughout the installation are required to handle,
or are exposed to, dirty, toxic, or hazardous materials or "are required
by management to maintain personal cleanliness as part of their duties .
. . ." Id. The Agency acknowledges, in this regard, that "(i)t is a
reasonable expectation on the part of any employer that employees
maintain an acceptable level of personal cleanliness while on duty."
Statement of Position at 9. We conclude that the assignment of work
which involves the handling of, or exposure to, dirty, toxic, or
hazardous materials, as well as, and in view of, the Agency's
expectation of an acceptable level of personal hygiene, has foreseeable
adverse effects on employees. Consequently, we conclude that Proposal 3
is intended as an arrangement.
Having concluded that Proposal 3 is an "arrangement," we now consider
whether it is "appropriate" within the meaning of section 7106(b)(3).
In Kansas Army National Guard, 21 FLRA at 33, the Authority stated that
it would consider whether the negative impact on management's rights is
disproportionate to the benefits to be derived from the proposed
arrangement. Applying that requirement, we must determine whether
Proposal 3 excessively interferes with management's right to assign
work.
The Union asserts that employees throughout the installation are
working with, or exposed to, dirty or "toxic and germ laden materials
adverse to their safety(.)" Reply Brief at 2. Further, the Union
provides a list of approximately 48 "toxic products" that it claims are
being used by employees. Id. at 2-3. Additionally, the Union asserts
that secretaries and computer operators use products which are marked
with "poison symbols" or are marked "hazardous for humans(,)" and that
these employees "eat their lunches at their desks since they do not have
a lunch room." Id. at 4. In response to the Agency's assertion that
employees using toxic products are provided with protective equipment
and clothing, the Union asserts that "OSHA standards require the
clean-up of the work area and/or the washing of hands and other areas of
exposure." Id. at 2. Additionally, the Union asserts that the parties
have tentatively agreed to a contract provision which "requires all
employees to maintain personal cleanliness." Petition for Review at 5.
The Union argues that employees could be "disciplined for not meeting
(an) individual supervisor's personal standard of cleanliness." Reply
Brief at 6.
The Agency asserts that, as there are approximately 2000 employees in
the bargaining unit, it would lose "a significant amount of time (20
minutes per person, per day)" under Proposal 3 because management would
not be able to assign work to employees during the 10-minute cleanup
periods. Statement of Position at 10. Consequently, the Agency argues,
"the negative impact on the accomplishment of work far outweighs any
benefit the union might otherwise perceive." Id. The Agency notes that
"not all of the positions the union listed require handling of toxic
materials." Id. In addition, the Agency asserts that:
any employees who are required to work with toxic chemicals are
provided with protective equipment and clothing. Thus, the
employee has complete control over his or her state of
cleanliness. Any adverse action taken against an employee in such
a positions (sic) is more likely based on the employee's failure
to adhere to safety regulations regarding the wearing of
protective equipment rather than for lack of personal cleanliness.
Id.
After carefully weighing the parties' arguments, we conclude that
Proposal 3 would provide significant benefits to employees. The
proposal would assist employees who are in contact with toxic,
hazardous, or dirty substances in maintaining personal safety. It is
clear from the record that significant numbers of unit employees use, or
are exposed to, such substances on a daily basis. In addition, the
proposal would benefit employees in general by providing them with paid
time to cleanup before lunch and before leaving the worksite.
We conclude also that the proposal could significantly restrict
management's right to assign work. As the Agency points out, the
bargaining unit involved here consists of approximately 2,000 employees.
Although it is not clear how many general schedule employees are in the
unit, as opposed to prevailing rate employees who, consistent with our
decision above are entitled to negotiate over cleanup time, it is
reasonable to assume that a significant number of general schedule
employees could, under this proposal, choose to take 20 minutes each day
for clean-up purposes.
On balance, however, we find that in the circumstances of this case,
Proposal 3 does not excessively interfere with management's right to
assign work. We note, in this regard, that it is uncontroverted in the
record before us that for over 10 years, unit employees have been able
to use paid time for cleanup purposes. The Agency does not assert, and
there is no basis in the record on which to conclude, that this practice
has interfered to any meaningful degree with the Agency's right to
assign work. Moreover, although it appears that previous agreements
provided a total of 10 minutes per day for cleanup, the Agency does not
assert that the proposal is nonnegotiable because it provides 20, rather
than 10, minutes for cleanup. Finally, we note that providing employees
with cleanup time also benefits the Agency in that the Agency clearly
desires clean employees and a clean environment. The Agency points out,
in this regard, that "(i)t is a reasonable expectation on the part of
any employer that employees maintain an acceptable level of personal
cleanliness while on duty." Statement of Position at 9. Thus, providing
employees with the ability to cleanse themselves of toxic substances
eliminates risks to employees and possible loss of productivity.
Consequently, without addressing what amount of cleanup time would be so
unreasonable so as to excessively interfere with the Agency's right to
assign work, we conclude here that 20 minutes is not excessive.
It is also uncontroverted in the record before us that "all 2,000
employees have never utilized the washup time or the full amount of time
on a consistent basis." Reply Brief at 6. Therefore, although the
proposal would provide this benefit to all employees, it would be
speculative to assume that all employees would, in fact, use paid time
to cleanup or use the full 20 minutes to do so. In effect, the Agency
requests us to determine whether Proposal 3 excessively interferes with
its right to assign work based on a mathematical computation of the
maximum amount of time that could be used under the proposal. We are
unwilling to do so, in view not only of the parties' previous practice
but also of our common-sense understandings of such matters at the
workplace. Instead, consistent with the parties' practice, it is
reasonable to conclude that as the proposal provides time to cleanup,
that time would not be used if cleanup was not needed.
As stated previously, the Agency points out that "(i)t is a
reasonable expectation on the part of any employer that employees
maintain an acceptable level of personal cleanliness while on duty."
Statement of Position at 9. We agree. We also find it a reasonable
expectation of employees that they be permitted a nonexcessive amount of
time to do so during their hours of work, especially where they have
been so permitted for over 10 years. Accordingly, and in the
circumstances of this case, we conclude that Proposal 3 does not
excessively interfere with the Agency's right to assign work and,
consequently, is negotiable under section 7106(b)(3) of the Statute.
Compare The Washington Plate Printers Union, Local No. 2, I.P.D.E.U.
and U.S. Department of the Treasury, Bureau of Engraving and Printing,
31 FLRA 1250, 1257 (1988) (Authority found contract provision was an
appropriate arrangement where arbitrator found personal cleanup was
"'absolutely required for minimal protection of the health of these
employees' because there (was) 'a clear and direct relationship between
a careful wash-up' and prevention of the adverse consequences of contact
with toxic substances.").
Article 18.
Section 18-6.
a. Except for employees engaged in fire protection activities,
no employee will be required to work more than eight hours a day
without overtime compensation. It is further understood that if
an employee is directed or required by the Employer to report at a
designated location at a specified time prior or subsequent to
his/her regular eight-hour work shift, such time will be
considered compensable at the existing overtime rate.
b. No employee will be required to work, including lunch
breaks, with or without his consent, beyond 16 hours, or a double
shift, within a 24-hour period, unless approved by the Garrison
Commander.
(Only the underscored portion is in dispute.)
A. Positions of the Parties
1. The Agency
The Agency argues that the disputed portion of Proposal 4 interferes
with its right to assign work under section 7106(a)(2)(B) of the Statute
by (1) prescribing that specific duties be performed by a particular
non-bargaining unit employee, the Garrison Commander; and (2) "limiting
the agency's discretion to determine the duration of the employee's work
assignments" by "plac(ing) a condition on the agency's exercise of its
right to assign work." Statement of Position at 11. The Agency contends
that the Union represents several groups of employees and that each
group "has its own Commander who operates independently from the Fort
Campbell Garrison Commander." Id. Therefore, the Agency asserts that
"the Garrison Commander has absolutely no authority to approve or
disapprove these employees' tours of duty." Id.
2. The Union
The Union contends that the disputed portion of Proposal 4 is
intended to "(e)stablish procedures to balance the health and well-being
of employees working unreasonably long hours." Petition for Review at 6.
The Union asserts that the disputed portion of Proposal 4 is a
"procedure which (the Agency) will observe in exercising its authority"
under section 7106(b)(2). Id. The Union further asserts that the
disputed portion of Proposal 4 does not prevent the Agency from
"assigning employees to work over 16 straight hours in one day. It
merely requires the decision to be reviewed by the Garrison Commander."
Id.
B. Analysis and Conclusions
The disputed portion of Proposal 4 requires that if the Agency
assigns more than 16 hours' work to employees within a 24-hour period,
the assignment must be approved by the Garrison Commander.
Management's right to assign work under section 7106(a)(2)(B) of the
Statute encompasses the right to assign specific duties to particular
individuals, including management officials. See American Federation of
Government Employees, Local 1409 and U.S. Department of the Army,
Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground,
Maryland, 38 FLRA 747, 752 (1990) (proposal providing that commander had
discretion over a particular matter found to directly interfere with
management's right to assign work because it singled out a particular
individual who would be responsible); National Association of
Government Employees, Local R1-144, Federal Union of Scientists and
Engineers and U.S. Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 38 FLRA 456, 484-86 (1990) petition for
review filed as to other matters sub nom. U.S. Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No.
91-1045 (D.C. Cir. Mar. 18, 1991) (proposal providing that activity head
designees would take certain actions held to directly interfere with
management's right to assign work).
Here, the Agency would be required to assign to the Garrison
Commander the function of approving or disapproving employees' extended
tours of duty. This requirement is inconsistent with the Agency's right
to assign specific duties to particular individuals. Consequently,
consistent with the cases cited above, we find that the disputed portion
of Proposal 4 directly interferes with management's right to assign
work. Inasmuch as the disputed portion of Proposal 4 directly
interferes with this right, it does not constitute a negotiable
procedure under section 7106(b)(2) of the Statute.
The Union asserts that working beyond 16 hours in a 24-hour period
places "unusual demands on employees' physical safety and well-being
(which) should be balanced by at least a more than usual or cursory look
at the adverse effects upon the employees." Petition for Review at 6.
According to the Union, "(w)orking continually for this long can be
highly detrimental to employees' health(,) safety and well-being
depending on factors such as the danger involved in the work performed,
the amount of stress or physical demands, etc." Id. We construe this
statement as an assertion that the Union intends the disputed portion of
Proposal 4 to be an appropriate arrangement, under section 7106(b)( 3)
of the Statute, for employees who are adversely affected by the exercise
of management's right to assign work.
We determine whether a proposal is an arrangement for employees
adversely affected by management's exercise of its rights by looking to
"the effects or foreseeable effects on employees which flow from the
exercise of those rights, and how those effects are adverse." Kansas
Army National Guard, 21 FLRA 24, 31. We find that it is foreseeable
that employees could suffer adverse effects from working more than 16
hours in a 24-hour period and that the disputed portion of Proposal 4
seeks to mitigate these effects by requiring that the Garrison Commander
approve such work assignments. Therefore, we conclude that the disputed
portion of Proposal 4 is an "arrangement," within the meaning of section
7106(b)(3) of the Statute, to mitigate the adverse effects of
management's exercise of its right to assign work for more than 16 hours
in a 24-hour period. Next, we examine whether the arrangement is
appropriate, or whether it is inappropriate because it excessively
interferes with the Agency's right to assign employees. Id. at 31-33.
The Union asserts that the "unusual demands on employees' physical
safety and well-being (from working more than 16 hours in a 24-hour
period) should be balanced by at least a more than usual or cursory look
at the adverse effects upon the employees." Petition for Review at 6.
On the other hand, the Agency asserts that the Garrison Commander, who
would be required to approve extended tours, "does not have jurisdiction
over all employees in the bargaining unit." Statement of Position at 11.
According to the Agency, the Union represents employees who work for
several different tenants -- the Medical Department Activity, the Dental
Activity, Information Systems Command, and the Commissary. The Agency
asserts that each tenant has its own commander and that the Garrison
Commander "has absolutely no authority to approve or disapprove these
employees' tours of duty." Id.
Employees would benefit from the disputed portion of Proposal 4. If
extended periods of duty required approval at a higher level in an
organization, it is less likely that employees would be assigned to work
in situations which would negatively affect their safety and health. On
the other hand, the Agency asserts, without contradiction by the Union,
that the management official named in Proposal 4 does not have authority
over all the employees in the bargaining unit. Proposal 4 would,
effectively, require that the Agency reorganize its chain of command, at
least for the limited purpose of the proposal. Compare U. S.
Department of the Navy, United States Marine Corps Headquarters and
American Federation of Government Employees, Council 240, 37 FLRA 1304
(1990) (arbitrator's award, which determined that the parties intended
"head of the activity" in their negotiated grievance procedure to mean
the commanding general, had no substantive effect on the agency's
organization and did not interfere with the agency's right to determine
its organization).
We find that the burdens imposed on the Agency outweigh the benefit
to employees from Proposal 4. Accordingly, noting that the Union does
not dispute the Agency's assertions regarding the effect of the proposal
on its organization, we conclude that the disputed portion of Proposal 4
excessively interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute and, therefore, is nonnegotiable.
Compare National Federation of Federal Employees and Department of the
Interior, Bureau of Land Management, 29 FLRA 1491, 1525 (1987)
(provision requiring that the deciding official not be the proposing
official held not to excessively interfere with management's right to
assign work because (1) it did not specify any particular level within
the agency where the final decision would be made and (2) it did not
require the agency to modify its organizational structure).
Article 28.
Section 7-8.
a. Agency employees will receive first consideration for
positions. They will be considered before non-agency candidates
are solicited, ranked or considered for selection.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 6 conflicts with its right to
select employees under section 7106(a)(2)(C) of the Statute. The Agency
asserts that Proposal 6 is "practically identical" to Proposal 2 in
National Treasury Employees Union and Department of the Treasury, Bureau
of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987), rev'd sub nom.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 857 F.2d 819, (D.C. Cir. 1988) (Treasury, BATF). Statement of
Position at 13. In Treasury, BATF, the proposal required the agency to
rank and consider current employees before soliciting or considering
outside applicants. The United States Court of Appeals for the District
of Columbia Circuit held that the proposal "would create pressure on . .
. managers to promote a reasonably competent agency employee rather than
leave a position unfilled during the time it would take to initiate and
complete a late-starting search for a more qualified outside candidate."
Statement of Position at 12 (quoting Treasury, BATF v. FLRA, 857 F.2d at
822).
2. The Union
The Union contends that the intent of Proposal 6 is "first
consideration." Petition for Review at 6. However, the Union asserts
that Proposal 6 "does not limit (the Agency's) right to seek a wide
range of candidates." Id. The Union contends that Proposal 6
"establishes a procedure which, in turn, establishes the sequence by
which management considers those persons developed by the search." Id.
(emphasis in original).
B. Analysis and Conclusions
Proposal 6 would require the Agency to give its employees "first
consideration" for positions before candidates outside the Agency are
solicited, ranked, or considered for selection. In National Association
of Government Employees, Local R5-165 and Tennessee Air National Guard,
35 FLRA 886, 889 (1990) (Tennessee Air National Guard), we held that a
proposal requiring an agency to rank and consider unit employees before
soliciting or considering outside applicants directly interferes with
management's right to select employees under section 7106(a)(2)(C) of
the Statute. We concluded that the proposal would preclude an agency
from assessing the full range of potential candidates when the agency
made its initial employment decisions. Id. at 889-90.
We reject the Union's assertion that Proposal 6 does not "limit" the
Agency from seeking a "wide range of candidates." Petition for Review at
6. Proposal 6 would require the Agency to consider all of its employees
before considering other candidates. As the Authority found in
Tennessee Air National Guard, "(a)lthough such a proposal does not
prevent management from considering outside candidates, it does preclude
an agency from assessing the 'full range of potential candidates' when
it makes its initial employment decisions." Id. at 888-89 (quoting
Treasury, BATF, 857 F.2d at 822).
In addition, we reject the Union's contention that Proposal 6
"establishes a procedure" to be used by the Agency. By limiting the
Agency's ability to select from any appropriate source, Proposal 6
directly interferes with management's right to select under section
7106(a)(2)(C) of the Statute. Consequently, Proposal 6 is not a
negotiable procedure. As the Union does not assert that Proposal 6
constitutes an appropriate arrangement, and as Proposal 6 directly
interferes with the Agency's right to select, it is nonnegotiable.
The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate over Proposals 1 and 3. /3/ The petition for review
of Proposals 2, 4, and 6 is dismissed. Member Armendariz, concurring as
to Proposal 3:
I would find Proposal 3 negotiable insofar as the Agency has
discretion under law and regulation to compensate employees for time
spent in personal cleanup during regular tours of duty or during
overtime and to the extent that the Agency exercises that discretion in
a manner that is consistent with applicable law and regulation. See
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870,
895-98 (1986); National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA 6, 8-12 (1986), aff'd sub nom.
Department of Treasury, Customs Service v. FLRA, 836 F.2d 1381 (D.C.
Cir. 1988).
My colleagues state that they "find nothing in applicable law or
regulations that explicitly or implicitly prohibits an agency from
requiring employees to clean up as a regular assigned duty during the
basic 40-hour workweek or during periods of overtime." Slip op. at 18.
I would agree with that statement if it contained the proviso "so long
as the conditions in the above-cited OPM regulations are met."
Similarly, if the same proviso were added, I would agree with my
colleagues' statement (slip op. at 21) that "we find nothing in 5 C.F.
R., part 551, or the FLSA, which would make illegal an agency
determination that employees be required to cleanup during their regular
tours of duty or on overtime(.)" Again, at 22 of the slip opinion, I
would make the same point by noting that there is no basis on which to
conclude that cleanup time cannot constitute compensable work so long as
the conditions in the above-cited OPM regulations are met.
In this regard, I would emphasize that FPM Supplement 990-2, Book
550, Appendix I, Exhibit 2, paragraph b.(5)(f) states that "washing up
or showering" is an activity that has been considered to be a
preliminary or postliminary activity by the courts and the Department of
Labor in the private sector under the FLSA, and that FPM Supplement
990-2, Book 550, Appendix I, Exhibit 2, paragraph a.(1)(b) provides that
time spent in preliminary or postliminary activities is excluded from
hours of work. See also 5 C.F.R. Sections 550.112(b)(2) and 551.412(b)
("time spent in preliminary or postliminary activities is excluded from
hours of work and is not compensable"). However, if an agency
reasonably determines that a preparatory or concluding activity like
cleanup time: 1) is closely related to the employees' principal
activities; 2) is indispensable to the performance of the principal
activities; and 3) takes more than 10 minutes per workday, then the
employees are to be compensated under 5 C.F.R. Sections 550.112(b)(1)(
i) and 551.412(a)(1).
(1) Member Armendariz' separate concurring opinion as to Proposal 3
is set forth after the majority opinion.
(2) 5 U.S.C. Section 6101 provides, in pertinent part:
Section 6101. Basic 40-hour workweek; work schedules;
regulations . . . .
(2) The head of each Executive agency, military department, and
of the government of the District of Columbia shall --
(A) establish a basic administrative workweek of 40 hours for
each full-time employee in his organization(.)
(3) In finding Proposals 1 and 3 to be negotiable, we make no
findings as to their merits.
40 FLRA 365
40 FLRA NO. 37
Bureau of Public Debt and NTEU, Case No. 3-CA-90571 (Decided April
25, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the exclusive
representative with the names and home addresses of bargaining unit
employees.
Case No. 3-CA-90571
BUREAU OF PUBLIC DEBT
(Respondent)
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the exclusive
representative with the names and home addresses of bargaining unit
employees. For the reasons stated below, we find that the Respondent
committed the unfair labor practice as alleged.
The National Treasury Employees Union, Chapter 199 (the Union) is the
exclusive representative of a unit of employees employed by the
Respondent. By letter dated March 6, 1989, in conjunction with an
upcoming labor-management relations committee meeting, the Union
requested the Respondent to furnish it with the names and home addresses
of the bargaining unit employees employed by the Respondent. Since on
or about March 16, 1989, and continuing to date, the Respondent has
refused to provide the Union with the requested information.
The parties stipulated that the names and home addresses of
bargaining unit employees are normally maintained by the Respondent in
the regular course of business, are reasonably available within the
meaning of section 7114(b)(4) of the Statute, and do not constitute
guidance, advice, counsel or training provided to management officials
or supervisors relating to collective bargaining.
A. General Counsel
The General Counsel argues that the Authority's decision on remand in
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788 (1986) (Farmers Home), which was reaffirmed by the Authority in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990), is dispositive of the issue in the case. In Farmers
Home, the Authority concluded that section 7114(b)(4) of the Statute
entitled the exclusive representative to the names and home addresses of
bargaining unit employees. The General Counsel contends that the
Respondent's admitted failure to furnish the employees' names and home
addresses constitutes a clear violation of section 7116(a)(1), (5), and
(8) of the Statute.
B. Respondent
The Respondent disagrees with the Authority's rationale in its
decision in Portsmouth Naval Shipyard. The Respondent contends that the
release of employees' home addresses is prohibited by law, specifically,
certain provisions of the Freedom of Information Act (FOIA), 5 U.S.C.
Section 552, and the Privacy Act, 5 U.S.C. Section 552a. The Respondent
contends that the Authority's decision in Portsmouth Naval Shipyard is
contrary to, among other things, the plain language of the Statute and
the Supreme Court's "controlling interpretation of the FOIA" in United
States Department of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749 (1989). Respondent Brief at 5. The Respondent
argues that the Authority should apply the reasoning in FLRA v.
Department of the Treasury, Financial Management Service, 884 F.2d 1446
(D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990) (Department of the
Treasury), where the court set aside Authority decisions ordering the
"release of (F)ederal employees' home addresses (to their exclusive
representatives) because i(t) found that 'release of that information
would violate the Privacy Act.'" Brief at 2.
The Respondent claims that the home addresses of bargaining unit
members may be disclosed to unions only if no adequate means exist for
contacting the employees. The Respondent asserts that there are
reasonable alternative means for the Union to communicate with
bargaining unit employees.
C. Union
The Union argues that the Authority's reasoning in Portsmouth Naval
Shipyard is correct and contends that the Respondent's reliance on
Department of the Treasury to justify its refusal to provide the Union
with the names and home addresses of bargaining unit employees should be
rejected. The Union states that the Respondent's objections to
furnishing the Union with the requested information are "substantially
similar to the arguments considered and rejected by the Authority in
Farmers Home . . . and its progeny." Union Brief at 10. Accordingly,
the Union asserts the Authority should "follow its established precedent
and determine that the (Respondent) has violated its duty to furnish the
(U)nion with the names and home addresses of bargaining unit
employees(.)" Id. at 10-11. The Union notes that Authority precedent
establishes that it is not necessary to assess the availability of the
alternative means of communication in this case.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available. Further, it is evident from the parties'
stipulation that the other requirements of section 7114(b)(4)(A), (B),
and (C) have been met in this case.
Accordingly, consistent with the parties' stipulation and based on
the Authority's decision in Portsmouth Naval Shipyard, we find that the
Respondent was required to furnish the Union with the names and home
addresses of employees in the bargaining unit represented by the Union.
Its refusal to do so violated section 7116(a)(1), (5), and (8) of the
Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Bureau of the Public Debt shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, Chapter 199, the exclusive representative of certain of
its employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) 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) Furnish the National Treasury Employees Union Chapter 199, the
exclusive representative of certain of its employees, the names and home
addresses of all employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Treasury Employees Union, Chapter 199 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 and shall be posted in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, Chapter 199, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, Chapter 199,
the exclusive representative of certain of our employees, the names and
home addresses of all employees in the bargaining unit it represents.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 359
40 FLRA NO. 36
Naval Resale Activity, Naval Station, Long Beach, California and
NAGE, Local R12-173, Case No. 8-CA-90564 (Decided April 25, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
FURNISH INFORMATION
NAMES AND HOME ADDRESSES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees represented by the
Union. The Authority found not relevant to its resolution of the case
the Respondent's argument that the requested information would be
supplied from the Respondent's payroll records because the official
personnel files, which are subject to the OPM's routine use notice, are
not the most accurate source of current home addresses. (See 40 FLRA
No. 34)
Case No. 8-CA-90564
NAVAL RESALE ACTIVITY, NAVAL STATION, LONG BEACH, CALIFORNIA
(Respondent)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-173,
AFL-CIO/SEIU
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The Respondent and the General Counsel filed
briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. By memorandum dated March 6, 1989, the Union requested the
names and home addresses of the unit employees it represents. By
memorandum dated April 27, 1989, the Respondent refused to provide the
Union with the home addresses it requested.
The parties stipulated that, within the meaning of section 7114(b)(
4) of the Statute, the requested names and home addresses are normally
maintained by the Respondent in the regular course of business, are
reasonably available, and do not constitute guidance, counsel, or
training provided to management officials or supervisors relating to
collective bargaining.
A. The Respondent
The Respondent disagrees with the Authority's decision in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990). In that case, we reaffirmed the Authority's
decision in Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 788 (1986) (Farmers Home), and concluded that a union
is entitled, under section 7116(b)(4) of the Statute, to the names and
home addresses of bargaining unit employees. The Respondent asserts
that the Authority should apply the reasoning of the court in FLRA v.
U.S. Department of the Treasury, Financial Management Service, 884 F.2d
1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 863 (1990), to find that
the Respondent was not required to supply the Union with the requested
information.
The Respondent contends that the disclosure of employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 552a, and
the Freedom of Information Act, 5 U.S.C. Section 552. The Respondent
argues, in this regard, that the requested information has not been
established to be necessary, within the meaning of section 7114(b)(4) of
the Statute, for discharge of the Union's representational
responsibilities.
Finally, the Respondent asserts that "(t)he system of records that
will be used to supply the union with the requested information is a
Navy system . . . not an OPM system . . . ." Respondent's Brief at 1.
According to the Respondent, the "routine use disclosure provisions of
the applicable Navy system of records . . . precludes() the disclosure
of employee home addresses to unions, especially if there are
alternative means of communications available to the labor
organizations." Id. The Respondent incorporated in, and attached to,
its statement a brief filed by the U.S. Department of Justice in the U.
S. Court of Appeals for the First Circuit in Portsmouth Naval Shipyard,
wherein the Department of Justice argues that (1) employee home
addresses may not be disclosed from official personnel files pursuant to
the routine use notice published by the Office of Personnel Management
(OPM), and (2) the OPM routine use notice does not apply to "the
Department of the Navy payroll system of records, which would probably
be the most accurate source of employees' current home addresses."
Attachment to Respondent's Brief at 44 n.38.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers
Home and Portsmouth Naval Shipyard are dispositive of the issues in this
case. Noting that the Respondent concedes that the requested
information is normally maintained by the Respondent in the regular
course of business, is reasonably available, and does not constitute
guidance, advice, counsel or training provided for management officials
or supervisors, within the meaning of section 7114(b)(4), the General
Counsel asserts that the Respondent's admitted failure to furnish the
Union with the requested information violates section 7116(a)(1), (5),
and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The parties stipulated that the requested information is normally
maintained by the Respondent in the regular course of business, is
reasonably available to the Respondent, and does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining. Accordingly, based on
the Authority's decision in Portsmouth Naval Shipyard, we conclude that
the Respondent violated section 7116(a)(1), (5), and (8) of the Statute
by failing to furnish the Union with the names and home addresses of
unit employees represented by the Union.
We note, in this regard, the Respondent's argument that OPM's routine
use notice does not apply to the "system of records that will be used to
supply the union with the requested information . . . ." Respondent's
Brief at 1. The Respondent does not specify the system of records to
which it refers. Read in light of the Department of Justice brief
attached to, and incorporated in, the Respondent's brief, however, we
construe the Respondent's argument to be that the requested information
would be supplied from the Respondent's payroll records because official
personnel files, which are subject to the OPM's routine use notice, are
not the most accurate source of current home addresses.
This argument is not relevant to our resolution of this case. There
is no basis on which to conclude that the Union specifically requested
the Respondent to provide the home addresses from its payroll records or
from any other specific system of records. Moreover, the Respondent
does not dispute that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice. See U.S. Naval
Ordnance Station, 40 FLRA No. 34 (1991), slip op. at 3-4.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Naval Resale Activity, Naval Station, Long Beach,
California, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R12-173, AFL-CIO/SEIU, the exclusive
representative of certain of its employees, the names and home addresses
of all employees in the bargaining unit it represents.
(b) 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) Furnish the National Association of Government Employees, Local
R12-173, AFL-CIO/SEIU, the exclusive representative of certain of its
employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Association of Government Employees, Local
R12-173, AFL-CIO/SEIU, 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 Commanding Officer of
the Naval Resale Activity and shall be posted in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted, and shall be maintained for 60
consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R12-173, AFL-CIO/SEIU, the
exclusive representative of certain of our employees, the names and home
addresses of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the National Association of Government Employees,
Local R12-173, AFL-CIO/SEIU, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, San Francisco Regional Office, Federal Labor Relations
Authority, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
40 FLRA 354
40 FLRA NO. 35
International Association of Machinists and Aerospace Workers, Local
Lodge 830 and Dept. of the Navy, Naval Ordnance Station, Louisville,
Kentucky, Case No. 0-NG-1914 (Decided April 23, 1991)
7105(a)(2)(E)
NEGOTIABILITY DETERMINATION
DRUG TESTING
POSTPONEMENT PENDING DETERMINATION OF CONSTITUTIONALITY
The case concerned the negotiability of a proposal requiring the
Agency to postpone the implementation of its drug testing program until
the Supreme Court has ruled on the constitutionality of drug testing
programs in the Federal sector. The Authority noted that, as worded,
the proposal does not distinguish among the types of drug tests, nor
distinguish the drug testing program of the Agency from that of other
agencies. The proposal could mean that the Agency must postpone testing
only until the Supreme Court has ruled on the constitutionality of some
type of drug testing, under some drug testing program, at some Federal
agency.
The Authority stated that while delay in implementating a drug
testing program does not in and of itself render nonnegotiable a
proposal causing that delay, in the absence of an explanation by the
Union of the intent of the proposal, there is a range of possible
interpretations of the proposal, some of which would render the proposal
nonnegotiable because they would have the effect of preventing the
Agency from conducting any drug testing. Therefore, the Authority
concluded that the record is not sufficient for it to rule on the
negotiability of the proposal.
Case No. 0-NG-1914
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 830
(Union)
U.S. DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY
(Agency)
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). The case concerns the negotiability of
a proposal requiring the Agency to postpone the implementation of its
drug testing program until the Supreme Court has ruled on the
constitutionality of drug testing programs in the Federal sector. For
the following reasons, we dismiss the Union's petition for review.
It is agreed and understood that drug-testing for bargaining unit
employees shall be held in abeyance until such time that the U.S.
Supreme Court rules on the constitutionality of drug testing
programs in the Federal sector. III. Positions of the Parties
1. Agency
The Agency contends that the proposal would require it "to halt drug
testing procedures pending disposition of the litigation of current
court challenges, including appeals to the Supreme Court." Agency
Statement of Position (Agency Statement) at 2-3. The Agency argues that
the proposal directly interferes with management's right to determine
its internal security practices under section 7106(a)(1) of the Statute
"because it would prevent the (Agency) from carrying out its drug
testing program in accordance with (G)overnment policy and (A) gency
regulation." Id. at 3.
The Agency cites American Federation of Government Employees, Local
2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 57-60 (1988)
(Tooele Army Depot), wherein the Authority found to be nonnegotiable a
proposal requiring that the agency postpone implementation of its drug
testing program until all lawsuits filed by the union or by unit
employees had been resolved. The Agency asserts that although the
proposal in Tooele Army Depot postponed drug testing until all lawsuits
filed by the union and unit employees had been resolved, and the
proposal in this case postpones testing until the Supreme Court has
ruled on the constitutionality of drug testing in the Federal sector,
that difference does not render the proposal in this case negotiable.
The Agency notes that the proposal in this case conditions drug
testing on a Supreme Court decision "without any consideration as to
when or how such an appeal . . . might occur." Agency Statement at 4.
The Agency contends that the proposal would therefore postpone
implementation of its drug testing program without a guarantee that any
such appeal would ever reach the Supreme Court and concludes that, under
the proposal, no testing of unit employees would ever occur.
The Agency also asserts that although the Union does not claim that
the proposal constitutes an appropriate arrangement within the meaning
of section 7106(b)(3) of the Statute, the proposal "does not meet the
criteria necessary to be considered an appropriate arrangement . . . ."
Id. at 5. The Agency argues that the proposal excessively interferes
with management's right to determine its internal security practices
because the proposal could "unduly prevent implementation of drug
testing(.)" Id. at 5-6.
2. Union
The Union contends that the proposal does not interfere, "in any
way," with management's right to determine its internal security
practices. Petition for Review at 1. The Union did not file a response
to the Agency's statement of position.
The proposal in this case requires the Agency to postpone
implementation of its drug testing program for unit employees until "the
U.S. Supreme Court rules on the constitutionality of drug testing
programs in the Federal sector." As worded, the proposal does not
distinguish among the types of drug tests, for example, random testing,
applicant testing, reasonable suspicion testing, or post-accident
testing. Further, the proposal also does not distinguish the drug
testing program of the Agency from that of other agencies. The proposal
does not distinguish between drug testing programs that were established
under Executive Order No. 12564 and those that were not. The Union,
moreover, offers no explanation as to the meaning and intent of the
proposal.
The proposal could mean that the Agency must postpone testing only
until the Supreme Court has ruled on the constitutionality of some type
of drug testing, under some drug testing program, at some Federal
agency. Interpreted in this manner, the condition prescribed by the
proposal has already been met and the proposal is moot. In National
Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989), the
Supreme Court held that the drug testing program established by the U.
S. Customs Service to test employee applicants for promotion to specific
types of positions did not violate employees' rights under the Fourth
Amendment of the U.S. Constitution.
The proposal could also mean that the Agency must postpone testing
until the Supreme Court has ruled on the constitutionality of each type
of testing, under every form of testing program, at each Federal agency.
It is unlikely, however, that the Supreme Court would grant review in
all of the cases that it would take to decide the constitutionality of
all types of testing, under all forms of testing program, at all Federal
agencies. Accordingly, under this interpretation, the proposal clearly
would prevent the Agency from ever implementing its drug testing
program.
Even if we assume that the proposal is merely intended to postpone
implementation of the Agency's drug testing program until the Supreme
Court has ruled on the constitutionality of some type of testing under
the Agency's own drug testing program, the proposal would, in effect,
prevent the Agency from conducting drug tests. Because review by the
Supreme Court of a case involving an aspect of the Agency's drug testing
program would be in the discretion of the Court, and not by right, the
Supreme Court might never grant review to rule on the constitutionality
of that program. Moreover, should the Agency prevail in the courts
below, the losing party could preclude the Supreme Court from resolving
the constitutional question by simply failing or refusing to appeal the
case to the Court. Compare Tooele Army Depot, 31 FLRA at 58 (under the
proposal in dispute, the union and unit employees could prevent the
agency's drug testing program from taking effect by continuing to file
lawsuits).
Delay in implementing a drug testing program does not in and of
itself render nonnegotiable a proposal causing that delay. See, for
example, International Federation of Professional and Technical
Engineers, Local 128 and U.S. Department of the Interior, Bureau of
Reclamation, 39 FLRA No. 133 (1991) (Proposal 1) (proposal delaying
implementation of drug testing until negotiations are completed held to
be negotiable). Consequently, there may be circumstances in which a
proposal to postpone implementation of a drug testing program pending a
decision by the Supreme Court would be negotiable. In the absence of an
explanation by the Union of the intent of the proposal, however, there
is a range of possible interpretations of the proposal, some of which
would render the proposal nonnegotiable because they would have the
effect of preventing the Agency from conducting any drug testing. See
Tooele Army Depot, 31 FLRA at 58-59.
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, 891 (D.C. Cir. 1982), aff'g National Federation of Federal
Employees, Local 1167 and Department of the Air Force, Headquarters,
31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6
FLRA 574 (1981). A party failing to meet this burden acts at its peril.
Consequently, we will dismiss the Union's petition for review. See
American Federation of Government Employees, Department of Education
Council of AFGE Locals and U.S. Department of Education, Washington,
D.C., 38 FLRA 1068, 1103 (1991).
Because the Union did not explain the meaning and intent of the
proposal, we are unable to determine whether the proposal would have the
effect of preventing the Agency from implementing its drug testing
program or, for example, would merely delay implementation until
completion of pending Supreme Court review of that program. We
conclude, therefore, that the record in this case is not sufficient for
us to rule on the negotiability of the proposal.
Finally, because we are dismissing the Union's petition for review on
the grounds that the record is insufficient for us to make a
negotiability determination, we do not reach the question of whether the
proposal is an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute.
The Union's petition for review is dismissed.
40 FLRA 348
40 FLRA NO. 34
U.S. Naval Ordnance Station and International Association of
Machinists and Aerospace Workers, Columbia Local 174, Case No.
3-CA-90877 (Decided April 23, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO FURNISH INFORMATION
NAMES AND HOME ADDRESSES
OFFICIAL PERSONNEL FILES
The Authority found that the Respondent violated section 7116(a)(1),
(5) and (8) by failing and refusing to provide the Union with the names
and home addresses of bargaining unit employees represented by the
Union. The Authority noted that Respondent's argument that official
personnel files, the system of records subject to the OPM's routine use
notice, are not the most accurate source of the employees' current
addresses. This argument is not relevant to the Authority's resolution
of the case. There is no basis on which to conclude that the Union
specifically requested the Respondent to provide the home addresses from
its payroll records. The Authority noted that the Respondent concedes
that the requested information is available from the OPM system of
records. "As such, the possible availability of the requested
information from other agency systems of records has no bearing on
whether the information is properly releasable from the system of
records subject to OPM's routine use notice."
Case No. 3-CA-90877
U.S. NAVAL ORDNANCE STATION
(Respondent)
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
COLUMBIA LOCAL 174, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations based on
a stipulation of facts by the parties, who have agreed that no material
issue of fact exists. The Respondent and the General Counsel filed
briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(
1), (5), and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) by failing and refusing to provide the Union with
the names and home addresses of bargaining unit employees represented by
the Union. For the following reasons, we find that the Respondent
committed the unfair labor practice as alleged.
The Union is the exclusive representative of a unit of Respondent's
employees. On June 30, 1989, the Union requested the names and home
addresses of the unit employees it represents. By letter dated August
14, 1989, and at all times thereafter, the Respondent has refused to
provide the Union with the home addresses it requested.
A. The Respondent
The Respondent disagrees with the Authority's decision in U.S.
Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), application
for enforcement filed sub nom. FLRA v. U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st
Cir. Oct. 1, 1990). In that case, we reaffirmed the Authority's
decision in Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 788 (1986) (Farmers Home), and concluded that a union
is entitled, under section 7116(b)(4) of the Statute, to the names and
home addresses of bargaining unit employees.
The Respondent contends that the disclosure of employees' home
addresses is prohibited by the Privacy Act, 5 U.S.C. Section 552a, and
the Freedom of Information Act, 5 U.S.C. Section 552. The Respondent
argues, in this regard, that the requested information is not necessary,
within the meaning of section 7114(b)(4) of the Statute, because it "has
provided the Union with adequate alternative means of communication
between the Union and the employees it represents." Respondent's Brief
at 2-3. The Respondent also asserts that the Authority should apply the
reasoning of the court in FLRA v. Department of the Treasury, Financial
Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110
S. Ct. 863 (1990), to find that the Respondent was not required to
supply the Union with the requested information.
Finally, the Respondent asserts that although "employee official
personnel files do contain home addresses, they may not be current."
Stipulation at 3, para. 10. According to the Respondent, the only
system of records which contains current home addresses of unit
employees is its payroll system. The Respondent asserts that disclosure
of employees' home addresses from official personnel files or the
payroll system is "not a permitted 'routine use' of that information
under both the Navy and the (Office of Personnel Management) regulations
. . . ." Respondent's Brief at 4.
B. The General Counsel
The General Counsel argues that the Authority's decisions in Farmers
Home and Portsmouth Naval Shipyard are dispositive of the issues in this
case. Noting that the Respondent does not contend that the requested
information is not normally maintained by the Respondent or reasonably
available to the Respondent, within the meaning of section 7114(b)(4),
the General Counsel asserts that the Respondent's admitted failure to
furnish the Union with the requested information violates section
7116(a)(1), (5), and (8) of the Statute.
In Portsmouth Naval Shipyard, we reaffirmed Farmers Home and
concluded that the release of the names and home addresses of bargaining
unit employees to their exclusive representatives is not prohibited by
law, is necessary for unions to fulfill their duties under the Statute,
and meets all of the other requirements established by section
7114(b)(4) of the Statute. We also determined that the release of the
information generally is required without regard to whether alternative
means of communication are available. We find that resolution of this
case does not require consideration of whether alternative means of
communication are available to the Union.
The Respondent does not assert that the requested information is not
normally maintained by the Respondent in the regular course of business
or is not reasonably available to the Respondent, within the meaning of
section 7114(b)(4) of the Statute. Accordingly, based on the
Authority's decision in Portsmouth Naval Shipyard, we conclude that the
Respondent violated section 7116(a)(1), (5), and (8) of the Statute by
failing to furnish the Union with the names and home addresses of unit
employees represented by the Union.
We note, in this regard, the Respondent's argument that official
personnel files, the system of records subject to the Office of
Personnel Management's (OPM's) routine use notice, are not the most
accurate source of employees' current home addresses. This argument is
not relevant to our resolution of this case. There is no basis on which
to conclude that the Union specifically requested the Respondent to
provide the home addresses from its payroll records. Moreover, the
Respondent concedes that the requested information is available from the
OPM system of records. As such, the possible availability of the
requested information from other agency systems of records has no
bearing on whether the information is properly releasable from the
system of records subject to OPM's routine use notice.
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. Naval Ordnance Station shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International
Association of Machinists and Aerospace Workers, Columbia Local 174,
AFL-CIO, the exclusive representative of certain of its employees, the
names and home addresses of all employees in the bargaining unit it
represents.
(b) 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) Furnish the International Association of Machinists and Aerospace
Workers, Columbia Local 174, AFL-CIO, the exclusive representative of
certain of its employees, the names and home addresses of all employees
in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the International Association of Machinists and Aerospace
Workers, Columbia Local 174, AFL-CIO, 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
Commanding Officer of the Naval Ordnance Station and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and shall be maintained for
60 consecutive days thereafter. 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, 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.
WE WILL NOT refuse to furnish, upon request of the International
Association of Machinists and Aerospace Workers, Columbia Local 174,
AFL-CIO, the exclusive representative of certain of our employees, the
names and home addresses of all employees in the bargaining unit it
represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Statute.
WE WILL furnish the International Association of Machinists and
Aerospace Workers, Columbia Local 174, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
(Activity)
Dated . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. 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.
40 FLRA 342
40 FLRA NO. 33
NAGE, Local R14-77 and Dept. of Veterans Affairs, Medical Center,
Grand Junction, Colorado (Sass, Arbitrator), Case No. 0-AR-1910 (Decided
April 23, 1991)
7122(a)
7116(a)(5)
ARBITRATION EXCEPTION
PAST PRACTICE
ISSUE COGNIZABLE UNDER ULP
The grievance was filed over the Agency's discontinuance of the
practice of allowing certain employees duty time for personal clean-up
and to change out of their uniforms at the end of their shift. The
Arbitrator denied the grievance, finding that the Agency's action did
not violate the parties' master agreement and that no "binding past
practice" had been established by practice. The Authority found that
the Union had not established that the award is contrary to any law,
rule or regulation or that it is deficient on other grounds. Noted in
conclusion was that in view of the Arbitrator's finding that no past
practice existed, there is no issue cognizable under section 7116(a)(5)
as to whether the Agency unilaterally changed a binding past practice
without giving the Union notice and an opportunity to bargain, as
alleged by the Union.
Case No. 0-AR-1910
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-77
(Union)
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, GRAND JUNCTION,
COLORADO
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator John F. Sass 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 grievance in this case was filed over the Agency's discontinuance
of the practice of allowing its Dietetic Service employees duty time for
personal clean-up and to change out of their uniforms at the end of
their shifts. The Arbitrator denied the grievance, finding that the
Agency's action did not violate the parties' master agreement and that
no "binding past practice" had been established by the practice.
For the following reasons, we conclude that the Union has failed to
establish that the Arbitrator's award is deficient. Accordingly, we
will deny the Union's exceptions.
On or about March 15, 1989, Dietetic Service employees were notified
by management that, effective April 1, 1989, they would no longer be
allowed any amount of duty time to change out of their uniforms at the
end of their shifts. For at least several years prior to April 1, 1989,
Dietetic Service employees at the Agency were allowed some amount of
duty time at the end of their shift to wash up and to change out of
their work uniforms and into their street clothes. A group grievance
was filed on April 7, 1989, protesting the change that had occurred on
April 1. The grievance was not resolved and the matter was referred to
arbitration.
The parties stipulated before the Arbitrator to the following issue:
Did the Agency violate Article 26, Sections 1 and 6, of the Master
Agreement and an established past practice by refusing to allow
employees in Dietetics duty time for personal clean-up and uniform
change? If so, what is the appropriate remedy?
Arbitrator's award at 1.
The Arbitrator noted that this case is based solely on Article 26,
Sections 1 and 6, of the parties' master agreement and on past practice.
In this regard, he found that Article 26, Section 1, of the master
agreement provided that employees whose uniforms become "inordinately
dirty or contaminated" because of their work assignment must be given
paid duty time to change out of their uniforms. Id. at 3. He also
found that Article 26, Section 6, of the master agreement provided that
employees must also be allowed a reasonable amount of time to properly
cleanse themselves before lunch and at the end of their shifts. Id.
The Arbitrator concluded that the Union had failed to show a violation
of either Section 1 or 6 of Article 26. In this regard, he found that
employees with "inordinately dirty or contaminated uniforms" were
allowed to change them and clean up on duty time, even after April 1,
1989, and that no one had ever denied an employee the right to use the
sink in the work area to wash up on duty time before lunch or at the end
of their shifts. Id.
The Arbitrator noted that the question of whether the Agency had
violated a binding past practice was "a bit more difficult to answer."
Id. at 4. He found that clearly there was at least some practice of
giving employees some duty time to change from their uniforms at the end
of their shifts prior to April 1, 1989, regardless of whether their
uniforms were inordinately dirty or contaminated. The Arbitrator
reasoned that in order for a practice to become binding on the parties,
as any other part of the agreement, the parties who have accepted the
practice must have the authority to make a binding agreement. The
Arbitrator found that "(o)ne local supervisor and her employees clearly
do not have authority to bind the Agency and the Union even at the local
level, let alone nationally." Id. at 5.
The Arbitrator further found that "the past practice in Dietetic
Service . . . was not in accordance with any official local policy(,)"
and there was no "evidence to suggest that it was ever 'accepted' by
Medical Center management and by the Local Union." Id. He found that
the practice "was simply something that one department supervisor
allowed to get started and then to continue in varying form for some
period of time before finally being halted as an unnecessary waste of
employee work time." Id. The Arbitrator concluded that "(s)uch a
practice does not qualify as a binding past practice and can be changed
at any time to bring operations into compliance with the requirements of
the Master Agreement and/or with practice that has been 'accepted' and
'approved' on a much larger scale by authorized representatives of the
Agency and the Union." Id.
Accordingly, the Arbitrator denied the grievance, finding that "the
Agency had every right to halt the practice and to bring its Dietetic
Service operations into compliance with the (master agreement) . . . ."
Id.
A. The Union
The Union does not except to the Arbitrator's finding that there was
no violation of the parties' master agreement. However, the Union does
except to the Arbitrator's conclusion that the practice at issue was not
a binding past practice. The Union contends that the Arbitrator's award
is contrary to well-established arbitral law that determines when a past
practice is binding upon the parties. It argues that the Arbitrator
erred as a matter of law in failing to recognize the binding effect of
the past practice and in failing to recognize that the parties' past
practice "rose to the level of a separate enforceable condition of
employment." Union's Exceptions at 1.
The Union argues that there are several elements that must be met
before an enforceable past practice can be said to exist: (1) the
alleged past practice must be longstanding; (2) the practice must be
clear and unequivocal; and (3) the practice must be widespread and
known to both parties. It contends that all these factors were present
with regard to the practice at issue. The Union asserts that the
Arbitrator's statement of law that the practice was not binding because
the local supervisor lacked authority to bind the Agency and Union is
incorrect. It argues that where an agency has knowledge of a particular
practice and acquiesces to its continuing practice, it is binding upon
the parties as a condition of employment. In support, the Union cites
to the Authority's decision in Social Security Administration,
Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982)
(SSA). The Union further contends that all of the Arbitrator's findings
concerning the practice support the conclusion that the Agency accepted
and was bound by the practice. In this regard, the practice had been in
effect for several years and had been known and accepted by the Chief of
the Dietetic Service. Further, it argues, there was no evidence to
indicate that higher management had sought to limit or curtail the
practice.
The Union also contends that the Arbitrator's award is contrary to
section 7116(a)(5) of the Statute by allowing the Agency to unilaterally
change a past practice without negotiations. The Union asserts that the
Agency failed to give it notice and an opportunity to bargain prior to
ending the past practice. The Union seeks a reinstatement of the former
past practice until such time as the Agency gives notice and completes
negotiations over any change.
B. The Agency
The Agency contends that the Arbitrator properly applied existing law
concerning past practice. The Agency argues that in order to constitute
a past practice, the practice must be consistently exercised over an
extended period and followed by the parties. Further, it argues that
deviations by some supervisors in distinct parts of an activity do not
establish a past practice in the absence of acquiescence of higher
management. In support, the Agency cites to Authority decisions in SSA
and Department of Health and Human Services, Social Security
Administration, 17 FLRA 126 (1985). Also, the Agency argues that local
deviations from a national level policy do not establish a past practice
at the local level where there is no requirement for local bargaining
and the national level management has not acquiesced in the practice.
Thus, the Agency contends that the Arbitrator correctly found that
management's determination to adhere to the requirements of the master
agreement was not a change in past practice.
The Agency further argues that the Union's disagreement with the
Arbitrator is essentially a disagreement with his factual findings and
reasoning that the parties did not agree to and approve a binding past
practice. Accordingly, the Agency contends that the Authority should
reject the Union's attempt to relitigate the case.
Finally, the Agency objects to the Union's attempt to transform this
case into an unfair labor practice case and have the Authority grant a
status quo ante remedy. It argues that the Union may not at this point
attempt to obtain an Authority unfair labor practice remedy. If the
Authority were to overrule the Arbitrator's finding on past practice,
any further remedy, it contends, must be obtained from the Arbitrator.
We conclude that the Union's exceptions do not establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute. The Union claims that the Arbitrator's
conclusion, that the practice of allowing some amount of duty time to
Dietetic Service employees at the end of their shifts to clean up and to
change out of their work uniforms was not a binding past practice, was
incorrect and contrary to well-established arbitral law. The Union
argues that the Arbitrator erred as a matter of law in failing to
recognize the binding effect of the past practice and in failing to
recognize that the parties' past practice rose to the level of a
separate enforceable condition of employment.
We find that the Union has not established that the award is contrary
to any law, rule or regulation or that it is deficient on other grounds
similar to those applied by Federal courts in private sector
labor-management relations cases.
We conclude that the Union provides no basis for finding that the
Arbitrator's determination that there was no binding past practice is
contrary to law. The Union fails to establish that, as a matter of law,
the Arbitrator was compelled to find that a binding past practice
existed merely because one local supervisor allowed such a practice in
varying form for some period of time before the practice was halted by
the Agency. Thus, this case is distinguishable from U.S. Department of
Health and Human Services, Social Security Administration and Social
Security Administration, Field Operations, Region II, 38 FLRA 193
(1990), in which the Authority found that the agency's obligation to
furnish a union official with certain items in one location within the
local union's jurisdiction continued after the official moved to a new
branch office. In that case, we found that the management at the first
branch office had the authority to bind the agency within the geographic
limit of the local union's jurisdiction and that, in addition, there was
evidence that a higher level of the agency had acquiesced in the lower
management's actions. 38 FLRA at 197. In contrast, in this case the
Arbitrator found that the local supervisor did not have authority to
bind the Agency and that there was no evidence that the practice was
ever "accepted" by either the Medical Center or the Union. Arbitrator's
award at 5.
Therefore, we conclude that the Union's exceptions constitute nothing
more than disagreement with the Arbitrator's reasoning and conclusions
and an attempt to relitigate the merits of the grievance. As such,
these exceptions provide no basis for finding the award deficient. See,
for example, American Federation of Government Employees, Local 12 and
U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1247-48
(1990); American Federation of Government Employees, Local 2612 and
Griffiss Air Force Base, New York, 32 FLRA 1238, 1241-42 (1988).
Further, in general, a contention that an arbitrator erred in not
finding a past practice provides no basis for finding an award
deficient. The United States Air Force Air Logistics Command, Tinker
Air Force Base, Oklahoma and American Federation of Government
Employees, Local 916, AFL-CIO, 28 FLRA 343 (1987).
In view of the Arbitrator's finding that no past practice existed,
there is no issue cognizable under section 7116(a)(5) of the Statute as
to whether the Agency unilaterally changed a binding past practice
without giving the Union notice and an opportunity to bargain, as
alleged by the Union.
The Union's exceptions are denied.
40 FLRA 334
40 FLRA NO. 32
Department of Defense, Defense Logistics Agency, Defense Depot
Memphis, Memphis, Tennessee and AFGE, Local 2501 (Howell, Arbitrator),
Case No. 0-AR-2027 (Decided April 22, 1991)
7122(a)
7116(d)
ARBITRATION EXCEPTION
ISSUE RAISED IN A ULP PROCEEDING
NECESSARY FINDINGS
The Union filed a grievance alleging that the Agency violated the
parties' agreement by failing to allow bargaining unit employees to go
to the Union's office for representational purposes. The Arbitrator
determined that 7116(d) barred him from hearing the grievance because
the issue raised in the grievance was the same as the issue raised in an
earlier-filed ULP charge. The Union contended that the ULP charge
involved different issues.
The Authority noted that to be precluded under 7116(d) by an
earlier-filed ULP charge, all of the following conditions must be met:
(1) the issue which is the subject matter of the grievance must be the
same as the issue which is the subject matter of the ULP; (2) such
issue must have been earlier raised under the ULP procedures; and (3)
the selection of the ULP procedures must have been in the discretion of
the aggrieved party. The Authority noted that the Arbitrator appeared
to be finding that the theories advanced in both the ULP charge and the
grievance were the same. However, in the Authority's view, the
Arbitrator made no specific finding as to the factual circumstances
surrounding the grievance and the ULP charge. That is, the record does
not show whether the grievance and the ULP charge arose from the same
occurrence or set of facts. The Authority set aside the award and
remanded the case to the parties to request an arbitrator to make
findings consistent with the decision.
Chairman McKee dissented because, in her view, the Arbitrator's award
is sufficient for the Authority to determine whether the grievance is
barred by 7116(d). In the Chairman's view, it is clear that the
Arbitrator was well aware that the grievance would not be barred if it
was based on Agency actions other than those complained of in the ULP,
and it was equally plain that the award constitutes his determination
that the Union failed to demonstrate that the grievance arose from a set
of circumstances different from those giving rise to the ULP. In the
Chairman's view, the exceptions constitute mere disagreement with the
Arbitrator's evaluation of the evidence and his conclusions.
Case No. 0-AR-2027
U.S. DEPARTMENT OF DEFENSE, DEFENSE LOGISTICS AGENCY, DEFENSE DEPOT
MEMPHIS, MEMPHIS, TENNESSEE
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2501
(Union)
Before Chairman McKee and Members Talkin and Armendariz. /1/
This matter is before the Authority on an exception to the award of
Arbitrator D. L. Howell 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 exception.
The Union filed a grievance alleging that the Agency violated the
parties' collective bargaining agreement by failing to allow bargaining
unit employees to go to the Union's office for representational
purposes. The Arbitrator determined that section 7116(d) of the Statute
barred him from hearing the grievance because the issue raised in the
grievance was the same as the issue raised in an earlier-filed unfair
labor practice (ULP) charge. /2/ The Union contends that the grievance
and the ULP charge involve different issues.
For the following reasons, we find that we are unable to determine
from the record whether section 7116(d) bars the grievance in this case.
Accordingly, we will set aside the award and remand the case to the
parties to request that an arbitrator mutually agreed to by the parties
make findings consistent with our decision.
On December 12, 1989, the Union filed a ULP charge stating, in part,
that
on/or about the 6 November 1989, and continu(ing) thereafter (the
Agency) violated the Union's Contract Agreement, by . . . refus(
ing) to release employees and give them the opportunity to come to
the Union Office, when there (are) matters that need the attention
of the president of the Local(.)
Arbitrator's Award at 4. By letter to the Union's President dated
February 27, 1990, the Regional Director of the Authority's Atlanta
Region stated that pursuant to a telephone conversation with the Union's
agent on February 22, 1990, the ULP charge was being withdrawn. The
Union states that the parties reached a settlement agreement and that,
in a letter dated April 26, 1990, the Union was informed by the Agency
that its "managers and supervisors will continue to recognize" the
Union's designated representatives. Exceptions, Enclosure IV.
According to the Union, it "had no problems" relating to this matter for
approximately 2 months. Exceptions at 1.
On June 22, 1990, the Union filed a grievance stating, in part, that
the Agency violated the parties' agreement by "disallow(ing) employees
covered by the bargaining unit, to come to the Union office for
representational purposes."
Id. at 5. The Agency stated that the grievance was barred by section
7116(d) of the Statute because a ULP charge had previously been filed on
the same issue. Accordingly, the Agency denied the grievance. The
grievance was subsequently submitted to arbitration.
The parties agreed at the arbitration hearing that before ruling on
the merits of the case, the Arbitrator was to determine the following
issue: "Is the subject grievance dated 22 June 1990 arbitrable?" Id.
at 1.
The Agency argued before the Arbitrator that the Union raised the
same issue in its ULP charge and that, under section 7116(d), "raising
the subject issue as an unfair labor practice with the FLRA negates the
filing of a grievance on that same issue." Id. at 5. The Agency further
argued that section 7116(d) uses the word "raised," not "adjudicated,"
and that, "therefore, the withdrawal by the Union of the unfair labor
practice charge with the FLRA does not change the fact that the Union
selected that option, not the grievance procedure(,) in processing the
issue." Id.
The Union argued before the Arbitrator that "the unfair labor
practice charge was not adjudicated by the FLRA" and that "the FLRA
agent stated that a withdrawal of the charge by the Union 'would not
keep the Union from filing a grievance later on.'" Id. at 6. The Union
also argued that "the subject grievance was filed later in the year(.)"
Id.
At the arbitration hearing, the parties agreed that the Arbitrator
should contact the Regional Director of the Authority's Atlanta Region
to determine whether "a grievance could be filed on the same issue if an
unfair labor practice charge were withdrawn." Id. The Arbitrator was
told by the Regional Director that "it was not the policy of the FLRA to
state that 'a grievance could be filed on the same issue if an unfair
labor practice charge was withdrawn before adjudication.'" Id.
The Arbitrator found that the "present grievance appears plainly to
be an attempt to reinstate the former issue in the unfair labor practice
charge which had already been withdrawn from the FLRA by the Union." Id.
at 8. The Arbitrator noted that filing a ULP charge "does not bar the
Union from filing a grievance at some future date if it is felt that a
provision of the contract has been subsequently violated by the Agency."
Id. at 7-8. However, the Arbitrator noted that "any future grievance
claiming a contract violation would have to be so specifically stated to
distinguish it from the withdrawn unfair labor practice charge" and that
in "the subject 22 June 1990 grievance this was not done." Id. at 8. As
he found that the "record does not support any distinction between the
issues on the subject grievance and the previous unfair labor practice
charge(,)" the Arbitrator concluded that the grievance was not
arbitrable. Id.
The Union disputes the Arbitrator's finding that the grievance and
the ULP charge present the same issue within the meaning of section
7116(d) of the Statute. The Union notes that the problems cited in the
ULP charge and the grievance are "similar in nature," but contends that
"the events are covered under two different time span(s)." Exception at
2. Specifically, the Union notes that the ULP charge was filed in
December, 1989 and withdrawn on February 22, 1990, while "in June of
1990," employees and representatives were told by management officials
that they "would not be released from duties for (the) purpose of coming
to the Union Office to deal with representational functions(.)" Id. at
1. Because the "set of situations" from which the grievance arises
"began some two (2) months after the settlement arising from the ULP,"
the Union argues that "these now were a new set of violations, and that
the Union should have the right and the option to make another
filing(.)" Id. at 2.
The Union further argues that upholding the Arbitrator's finding as
to section 7116(d) of the Statute would mean that "neither party at
anytime in the future would have the right to file any charge, based on
the fact that sometime in the past a ruling, withdrawal, or settlement
was rendered for a particular situation." Id.
For the following reasons, we find that we are unable to determine
from the record whether section 7116(d) of the Statute bars the
grievance in this case.
Section 7116(d) of the Statute provides that issues which may be
raised under a negotiated grievance procedure may, in the discretion of
the aggrieved party, be raised under that procedure or as an unfair
labor practice, but not under both procedures. For a grievance to be
precluded under section 7116(d) by an earlier-filed unfair labor
practice charge, all of the following conditions must be met: (1) the
issue which is the subject matter of the grievance must be the same as
the issue which is the subject matter of the unfair labor practice; (2)
such issue must have been earlier raised under the unfair labor practice
procedures; and (3) the selection of the unfair labor practice
procedures must have been in the discretion of the aggrieved party. See,
for example, U.S. Department of Defense, Marine Corps Logistics Base,
Albany, Georgia and American Federation of Government Employees, Local
2317, 37 FLRA 1268, 1272 (1990) (Marine Corps Logistics Base); and U.S.
Department of Health and Human Services, Social Security Administration,
Office of Hearings and Appeals, Region II and American Federation of
Government Employees, Local 1760, 36 FLRA 448, 451 (1990).
The Arbitrator found that the "record does not support any
distinction between the issues on the subject grievance and the previous
unfair labor practice charge; therefore, the 22 June 1990 grievance is
not arbitrable." Arbitrator's Award at 8.
In determining whether the grievance and the ULP charge involve the
same issue, the Authority will look at "whether the ULP charge and the
grievance arose from the same set of factual circumstances and whether
the theories advanced in support of the ULP charge and the grievance are
substantially similar." Marine Corps Logistics Base, 37 FLRA at 1272.
See U.S. Department of Veterans Affairs; and Overseas Education
Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987) (OEA), reversing
and remanding sub nom. Department of Defense Dependents Schools, Pacific
Region and Overseas Education Association, 17 FLRA 1001 (1985), decision
on remand, 29 FLRA 1225 (1987).
By stating that "any future grievance claiming a contract violation
would have to be so specifically stated to distinguish it from the
withdrawn unfair labor practice charge" and that the "record does not
support any distinction between the issues on the subject grievance and
the previous unfair labor practice charge(,)" the Arbitrator appears to
be finding that the theories advanced in both the ULP charge and the
grievance were the same. Arbitrator's Award at 8. However, in our
view, the Arbitrator made no specific findings as to the factual
circumstances surrounding the grievance and the ULP charge. That is,
the record does not show whether the grievance and the ULP charge arose
from the same occurrence or set of facts. See Marine Corps Logistics
Base and OEA. In this regard, we note that the Union claims that the
facts leading to the grievance arose in June 1990, whereas the facts
leading to the ULP charge arose before December 1989. The Agency
disputed those claims before the Arbitrator.
We cannot determine from the record before us the factual
circumstances surrounding the grievance or the ULP charge.
Specifically, there has been no finding made with regard to the Union's
claim that the facts leading to the grievance arose in June 1990, 2
months after the settlement arising from the ULP charge and well after
the events leading to the ULP charge of December 1989. Therefore, we
are unable to determine whether the same issue was presented in both
proceedings within the meaning of section 7116(d). Because the
Arbitrator did not make the necessary factual findings and the record
does not provide the factual information necessary for the Authority to
determine whether the same issue was presented in both proceedings
within the meaning of section 7116(d) of the Statute, we will remand the
case to the parties to request that an arbitrator mutually agreed to by
the parties make findings consistent with this decision.
Accordingly, to find that the ULP charge and the grievance present
the same issue within the meaning of section 7116(d), the arbitrator
must determine that the ULP charge and the grievance arose from the same
set of factual circumstances and that the theories advanced in support
of the ULP charge and the grievance are substantially similar. Should
the arbitrator find that the ULP charge and the grievance present the
same issue, the arbitrator must then consider the remaining factors set
forth previously before finding that section 7116(d) bars the grievance
in this case. Specifically, the arbitrator would have to consider: (1)
whether the issue in the grievance had been earlier raised under the ULP
procedures; and (2) whether the aggrieved party in the grievance and
the ULP proceedings was the same and, if so, whether the selection of
the unfair labor practice procedures was in the discretion of that
party. See, for example, Marine Corps Logistics Base, 37 FLRA at
1273-74; U.S. Department of Veterans Affairs, Veterans Administration
Medical Center, Newington, Connecticut and National Association of
Government Employees, Local R1-109, 36 FLRA 441, 446-47 (1990); and
U.S. Department of Justice, Immigration and Naturalization Service and
American Federation of Government Employees, Local 2724, 20 FLRA 743,
745 (1985).
The award is set aside and the case is remanded to the parties to
request that an arbitrator mutually agreed to by the parties make
findings consistent with this decision.
Opinion of Chairman McKee, dissenting
I dissent in this case because, in my view, the Arbitrator's award is
sufficient for the Authority to determine whether the grievance is
barred by section 7116(d) of the Statute.
At the outset, I agree with my colleagues that, as relevant here, the
grievance is barred if it arose from the same set of factual
circumstances as the unfair labor practice charge. That is, whether the
general "issue" involved in the unfair labor practice charge and the
grievance is the same is not determinative if, in fact, the factual
circumstances giving rise to the two proceedings are different.
In my view, however, the Arbitrator recognized and resolved this
matter. With regard to the Arbitrator's recognition of the issue, the
Arbitrator expressly acknowledged that the earlier-filed ULP charge
"does not bar the Union from filing a grievance at some future date if
it is felt that a provision of the contract has been subsequently
violated by the Agency." Award at 7-8 (emphasis added). Indeed, the
Arbitrator stated that an interpretation of section 7116(d) which would
hold that a previous ULP would bar "forever any future grievance" would
be "grossly unfair" and inconsistent with section 7116(d). Id. at 7
(emphasis in original).
I find it clear, from these statements, that the Arbitrator was well
aware that the grievance would not be barred by section 7116(d) if it
was based on Agency actions other than those complained of in the ULP
charge.
With regard to the Arbitrator's resolution of the issue, the
Arbitrator stated that "any future grievance claiming a contract
violation would have to be so specifically stated to distinguish it from
the . . . unfair labor practice charge." Id. at 8. The Arbitrator then
stated that, in the Union's written grievance, "this was not done." Id.
An examination of the grievance supports the Arbitrator's statement.
Attachment to Exceptions. The Arbitrator concluded, in this regard,
that as the "record does not support any distinction between the issues
on (sic) the subject grievance and the previous unfair labor practice
charge(,)" the grievance was barred. Id.
As I find it plain that the Arbitrator recognized and understood the
framework for resolving the Agency's allegation that the grievance was
barred by section 7116(d), I find it equally plain that the Arbitrator's
award constitutes his determination that the Union failed to demonstrate
that the grievance arose from a set of circumstances different from
those giving rise to the ULP charge. That is, in my view, the
Arbitrator determined that the Union failed to create a record on which
to conclude that the grievance was not barred.
The Union does not now allege that it was prevented from entering
evidence, or making arguments, that the factual circumstances from which
the grievance arose differed from those giving rise to the ULP charge.
Further, the Union does not allege that the Arbitrator failed to
consider any evidence it offered on this matter. Accordingly, I find no
basis on which to conclude that the Arbitrator's award is deficient.
Likewise, the record, in my view, is sufficient to resolve the Union's
exception. I would, therefore, find that the Union's exception
constitutes mere disagreement with the Arbitrator's evaluation of the
evidence before him and his conclusions based thereon and, consistent
with long-standing Authority precedent, deny the exception.
(1) Chairman McKee's dissenting opinion is set forth after the
majority opinion.
(2) Section 7116(d) of the Statute provides in relevant part:
(I)ssues which can be raised under a grievance procedure may, in
the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this
section, but not under both procedures.
40 FLRA 303
40 FLRA NO. 31
Dept. of the Treasury, Internal Revenue Service, Washington, D.C.
and Internal Revenue Service, Salt Lake City, Utah and NTEU, Case No.
7-CA-90546 (Decided April 19, 1991)
7116(a)(1), (5) and (8)
7114(b)(4)
UNFAIR LABOR PRACTICE
DUTY TO PROVIDE INFORMATION
RELEVANT AND NECESSARY
PROCEDURAL RULING
MOTION TO STRIKE
EVENTS OCCURRING AFTER CLOSE OF HEARING
The case grew out of the refusal by the Respondent to provide the
Union with information concerning disciplines on a Region-wide basis,
while providing the requested information concerning the Salt Lake City
office. The Respondent contended that region-wide information was not
relevant. The Union continued to request the region-wide information.
On a procedural issue, the Authority refused to consider certain
exhibits attached to the Respondent's exceptions. The exhibits were not
in existence prior to the close of the ULP hearing and could not,
therefore, have been offered into evidence at the hearing. Exhibits 1
and 2 were documents relating to events occurring after the close of the
hearing and Exhibit 3 is an affidavit discussing Exhibits 1 and 2. The
Authority responded to Respondent's contention that they had no other
way to introduce the evidence by noting that Authority regulations
encompass procedures by which the Respondent could have sought to
introduce the exhibits as evidence, requesting the Judge to reopen the
record. The Authority stated that if the Respondent deemed these
exhibits relevant to the issues in the case, the Respondent should have
sought permission from the Judge to make them part of the record in the
case.
On the merits, the Authority adopted the Judge's conclusion that the
information sought was necessary, rejecting the Respondent's contention
that it was not because region-wide information could not be used in
MSPB proceedings to support allegations of disparate treatment.
On the remedy, the Authority rejected the Respondent's arguments that
they should not be required to furnish the Union with the requested
information on proceed to arbitration because the matter of the
grievant's suspension was resolved by the parties subsequent to the ULP
hearing. There was no agreement between the parties that a requirement
that the Respondent furnish the Union the requested information is moot.
Moreover, the record before the Authority does not support a claim that
the issue is moot. If the Union now considers the matter resolved, the
Union may elect not to take further action in the matter.
Case No. 7-CA-90546
U.S. DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON,
D.C.
INTERNAL REVENUE SERVICE, SALT LAKE CITY, UTAH
(Respondents/Agency)
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This unfair labor practice case is before the Authority on exceptions
filed by the Respondents to the attached decision of the Administrative
Law Judge. The complaint alleged that the Respondents violated section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to provide the Union with
information requested under section 7114(b)(4) of the Statute. The
Judge found that the Respondents violated the Statute as alleged in the
complaint. The General Counsel and the Union filed oppositions to the
Respondents' exceptions. The General Counsel also filed a motion to
strike certain attachments to the Respondents' exceptions and the
Respondents filed a response to the motion.
Pursuant to section 2423.29 of our Rules and Regulations and section
7118 of the Statute, we have reviewed the ruling of the Judge made at
the hearing and find that no prejudicial error was committed. We affirm
those rulings. Upon consideration of the Judge's decision, and the
entire record, we adopt the Judge's findings, conclusions, and
recommended Order, as modified below. /1/
The facts, which are set forth fully in the Judge's decision, are
briefly summarized here.
The Union is the exclusive representative of a nationwide unit of
Respondent's employees. The Union and the Respondents are parties to a
collective bargaining agreement, known as "NORD III," which addresses
adverse actions involving unit employees. Article 39 of NORD III
provides, as relevant here, that in deciding what discipline to impose
on unit employees, the Respondents will give "due consideration" to,
among other things, "consistency of the penalty with those imposed upon
other employees for the same or similar offenses(.)" Brief in Support of
Exceptions at 22; Judge's Decision at 2-3. /2/
The grievant, a unit employee in the Respondent's Salt Lake City
office, received a proposed letter of removal based on alleged
falsification of a document and improper access to the Respondents'
Integrated Data Retrieval System (IDRS). The grievant designated a
National Field Representative of the Union as her representative. The
grievant also requested, under Article 39 of the parties' agreement, to
reply orally to the proposed adverse action.
"(I)n order to represent (the grievant) at the oral reply(,)" the
Union requested information from the Respondents pursuant to section
7114(b)(4) of the Statute. Judge's Decision at 4. In particular, on
May 24, 1989, the Union requested:
All proposed letters, decision letters, letters of reprimand, and
oral admonishments confirmed in writing, counseling memos, closed
without action letters and clearance letters issue (sic) to all
employees in the Southwest Region from January 1, 1984, to the
present concerning the alleged accessing of the employee's own tax
return or of another individual's tax return for personal purposes
including partnerships and corporate tax returns.
Id. (emphasis in original). /3/
The Respondents replied that although the information would be
provided with respect to the Salt Lake City office, region-wide
information would not be provided. The Respondents asserted, in this
regard, that region-wide information was not "relevant()" and relied on
decisions of the Merit Systems Protection Board (MSPB) to support the
assertion. Subsequently, the Respondents provided the Union with
information concerning employees in the Salt Lake City Office.
The Union continued to request region-wide information and further
requested that the grievant's oral reply be postponed until receipt of
that information. The Respondents denied the Union's requests and the
oral reply meeting was held. Subsequently, the grievant was issued a
30-day suspension based on the charges contained in the proposed
removal. On August 14, 1989, the Union invoked arbitration over the
suspension.
For reasons set forth fully in the Judge's decision, the Judge
concluded that the information requested by the Union was normally
maintained by the Respondents in the regular course of business, and was
reasonably available to the Respondents. The Judge concluded also that
the information did not constitute guidance, advice, counsel, or
training provided for management officials and that disclosure of the
information was not prohibited by law.
The Judge also concluded that the requested information was
necessary, within the meaning of section 7114(b)(4). The Judge stated
that the requested information would have enabled the Union to
determine, before the oral reply and before invoking arbitration,
whether the grievant's proposed and final discipline were consistent
with penalties imposed on other employees for similar misconduct.
The Judge rejected, in this regard, the Respondents' assertion that,
based on MSPB case law, "the only relevant information for the purposes
of evaluating disparate treatment is from the employee's same module or
work unit." Judge's Decision at 12. The Judge concluded, instead, that
pursuant to collective bargaining under the Statute, parties may create
enforceable rights which differ from those provided by the MSPB. Noting
that an arbitrator "might very reasonably determine that nationwide or
Region-wide data would be appropriate in determining disparate
treatment" under Article 30 of NORD III, the Judge held that the MSPB
decisions relied on by the Respondents did not preclude a finding that
the requested information was necessary to the Union under section
7114(b)(4) of the Statute. Id. at 14.
To remedy the Respondents' violation of section 7116(a)(1), (5), and
(8) of the Statute, the Judge recommended that the Respondents be
directed to cease and desist from their unlawful actions. The Judge
also recommended, among other things, that the Respondents be directed
to (1) furnish the Union with the requested information, and (2) upon
request of the Union, proceed to arbitration over the grievant's
suspension.
The Respondents raise three exceptions to the Judge's decision.
First, the Respondents contend that the Judge erred in failing "to
adequately address" an asserted conflict between "the law of the (MSPB)
on the production of disparate treatment information" and that of the
Authority. Exceptions at 1. The Respondents argue that under MSPB law
"the only relevant evidence which can be used to prove disparate
treatment is evidence from the employee's work unit." Brief in Support
of Exceptions at 1.
Second, the Respondents assert that the Judge misinterpreted Article
39 of NORD III. The Respondents contend that, in view of the parties'
bargaining history, Article 39 does not support a conclusion that the
requested information could be used to support a claim of disparate
treatment by the grievant.
Finally, the Respondents contend that the only remedy now applicable
is the posting of a notice. The Respondents argue that the other
portions of the Judge's proposed remedy are no longer appropriate based
on events occurring after the conclusion of the unfair labor practice
hearing.
The General Counsel moves that a chart and three exhibits attached to
the Respondents' exceptions be struck from the record. The General
Counsel argues the Authority's decision on exceptions "must be based
upon the record established by the parties at (the) hearing and not upon
additional information submitted by one of the parties after the fact."
General Counsel's Motion to Strike at 2. The General Counsel notes that
although the information contained in the chart and exhibits was in the
Respondents' possession before the Administrative Law Judge issued his
decision, the Respondents did not move to reopen the hearing or in any
other way seek properly to make these matters a part of the record.
In its opposition, the General Counsel argues that the Union is
entitled to the requested information because it is necessary for the
Union to fulfill its representational responsibilities. The General
Counsel asserts that the Respondents' contentions that MSPB decisions
preclude a finding that the requested information is necessary should be
rejected because, in part, parties are entitled under the Statute to
negotiate over the "comparison group(s)" for purposes of determining
disparate treatment and, consistent with decisions by the courts and the
MSPB, such collectively-bargained provisions are enforceable.
The General Counsel also contends that the Judge did not improperly
interpret a provision of the parties' collective bargaining agreement.
The General Counsel asserts that the Judge merely "noted that since the
agreement covers a nationwide bargaining unit, 'an arbitrator might very
reasonably determine that nationwide or Region-wide data would be
appropriate in determining disparate treatment . . . .'" General
Counsel's Opposition at 8 (emphasis in original). The General Counsel
states that "(t)his is a far cry from an interpretation of the
agreement." Id.
Finally, the General Counsel argues that the Judge's recommended
remedy should not be modified "based on events subsequent to the close
of the hearing." Id. at 10. The General Counsel maintains that
requiring the Respondents to furnish the requested data and to proceed
to arbitration upon the Union's request "provides the only meaningful
remedy for management's failure and refusal to furnish data needed by
the Union to represent an employee at arbitration." Id. at 11 (footnote
omitted).
The Union asserts, first, that the Respondents' arguments based on
MSPB case law should be rejected. According to the Union, "the
Authority is the exclusive administrative body for determining a union's
entitlement to information under the Statute." Union's Opposition at 7.
Second, the Union agrees with the General Counsel that the Judge's
"observation" regarding Article 39 of NORD III does not constitute an
improper interpretation of that Article. Id. at 15. The Union also
points out, in this regard, that other arbitrators have "found a
region-wide comparison group to be relevant under Article 39." Id. at
15-16. Finally, the Union argues that, as the Authority is required to
base its decision on the hearing record alone, the Authority should
reject the Respondents' arguments that the Judge's recommended remedy
should be modified based on events occurring after the close of the
hearing.
A. The Motion to Strike
Section 2429.5 of the Authority's Rules and Regulations provides:
The Authority will not consider evidence offered by a party, or
any issue, which was not presented in the proceedings before the
Regional Director, Hearing Officer, Administrative Law Judge, or
arbitrator. The Authority may, however, take official notice of
such matters as would be proper.
Consistent with this Regulation, we will not consider the exhibits
attached to the Respondents' exceptions. Exhibits 1 and 2 are documents
relating to events concerning the grievant's suspension which took place
after the close of the unfair labor practice hearing. Exhibit 3 is an
affidavit discussing Exhibits 1 and 2 and, as such, its admissibility
depends on the admissibility of those exhibits.
The three exhibits were not in existence prior to the close of the
unfair labor practice hearing and could not, therefore, have been
offered into evidence at the hearing. We reject, however, the
Respondents' assertion that there was "no . . . way for the Respondent(
s) to inform the Authority" of the matters contained in the exhibits
other than to attach them to its exceptions. Response to Motion to
Strike at 4. Instead, the Authority's Regulations encompass procedures
by which the Respondents could have sought to introduce the exhibits as
evidence. See 5 C.F.R. Section 2423.19(k) (the Judge presiding at an
unfair labor practice hearing has authority to grant motions to reopen
hearings); 5 C.F.R. Section 2423.22(a) (motions made after a hearing
opens and before a case is transmitted to the Authority must be made in
writing to the Judge).
The documents encompassed by Exhibits 1 and 2 came into existence
within 2 months of the close of the hearing before the Judge.
Accordingly, if the Respondents deemed these exhibits relevant to the
issues in this case, the Respondents should have sought permission from
the Judge to make them a part of the record in this case. As the
Respondents do not justify their failure to do so, and as there is no
basis in Authority precedent for concluding that we should otherwise
take official notice of the exhibits, we will not consider them here.
See United States Department of Agriculture, Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, 26 FLRA 630 (1987).
We also conclude, however, that Chart 1 does not constitute
"evidence" or an "issue," within the meaning of section 2429.5 of our
Regulations. Instead, Chart 1 is merely a graphic description of an
argument, which is properly before us, concerning the meaning and intent
of Article 39 of NORD III. Accordingly, we deny the General Counsel's
motion that it be struck from the record.
B. The Merits
No exceptions were filed to the Judge's conclusions that, within the
meaning of section 7114(b)(4) of the Statute, the requested information:
(1) is normally maintained by the Respondents in the regular course of
business; (2) is reasonably available; (3) does not constitute
guidance, advice, counsel, or training provided for management officials
or supervisors relating to collective bargaining; and (4) is not
otherwise prohibited from disclosure by law. Accordingly, we adopt
these conclusions.
We also adopt the Judge's conclusion that the requested information
is necessary, within the meaning of section 7114(b)(4). We note first
that an agency's contention that information requested under section
7114(b)(4) cannot be used as evidence in another proceeding does not
relieve an agency of its obligation to furnish information under section
7114(b)(4). For example, U.S. Department of Labor, Washington D.C., 39
FLRA 531, 537-39 (1991); U.S. Department of Transportation, Federal
Aviation Administration, New England Region, Burlington, Massachusetts,
38 FLRA 1623, 1628-30 (1991); Department of the Air Force, Scott Air
Force Base, Illinois, 38 FLRA 410, 415-17 (1990), petition for review
filed sub nom. Department of the Air Force, Scott Air Force Base
Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991).
Second, we reject the Respondents' contentions that the requested
information is not necessary because region-wide information could not
be used in MSPB proceedings to support allegations of disparate
treatment. The information was requested, under the Statute, to assist
the Union in making an oral reply to a notice of proposed removal. No
final action on the proposed removal had been taken by the Respondents
and, obviously, no decision as to appeal, if any, of the final action
had been made.
There is no question that the requested information was pertinent to,
and would have been useful in, the oral reply. In fact, the Respondents
do not argue to the contrary. Rather, the essence of the Respondents'
argument is that "the Union was seeking to use the right under (section)
7114(b)(4) to request information as a type of pre-discovery to an
eventual MSPB or arbitration hearing(.)" Brief in Support of Exceptions
at 12. There is, however, no support in the record for the Respondents'
assertion. Instead, as found by the Judge, and consistent with the
Union's request and the entire record, it is clear that the Union
requested the information "in order to represent (the grievant) at the
oral reply." Judge's Decision at 4. As such, the Respondents' arguments
concerning the discoverability and admissibility of evidence in MSPB
proceedings are speculative and provide no basis on which to conclude
that the requested information was not necessary.
We conclude, based on the foregoing, that the requested information
was necessary, within the meaning of section 7114(a)(4) of the Statute,
for the Union to discharge its representational responsibilities. /4/
As the Judge's conclusions that the other requirements in section 7114(
a)(4) were satisfied are not in dispute, the Respondents violated
section 7116(a)(1), (5), and (8) by refusing to furnish the Union with
the requested information.
C. Remedy
We reject the Respondents' arguments that they should not be required
to furnish the Union with the requested information or proceed to
arbitration because the matter of the grievant's suspension was resolved
by the parties subsequent to the unfair labor practice hearing. With
respect to latter point, the Judge's recommended order requires the
Respondents to proceed to arbitration only if so requested by the Union.
As for the former point, there is no agreement between the parties that
a requirement that the Respondents furnish the Union with the requested
information is moot. Compare U.S. Department of Treasury, Internal
Revenue Service, Washington, D.C. and Internal Revenue Service, Helena
District, Helena, Montana, 39 FLRA 241, 255 (1991), petition for review
filed sub nom. United States Department of Treasury, Internal Revenue
Service v. FLRA, No. 91-1153 (D.C. Cir. Mar. 29, 1991) (parties agreed
that there was no longer a need for the respondent to furnish the union
with requested information). Moreover, the record before us does not
otherwise support a claim that this portion of the Judge's recommended
order is moot. We will, however, modify the Judge's order so as to
require the Respondents to provide the requested information upon
request of the Union. If the Union now considers the matter resolved,
the Union may elect not to take any further action in the matter.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Internal Revenue Service, Washington, D.C., and Internal
Revenue Service, Salt Lake City District, Salt Lake City, Utah, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Treasury Employees
Union, the employees' exclusive representative, with the information
requested by the Union on May 24, 1989.
(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of their rights assured them by
the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, furnish the National Treasury Employees Union, with
the information requested by the Union on May 24, 1989.
(b) Upon request of the National Treasury Employees Union, proceed to
arbitration under the collective bargaining agreement in the matter
underlying the request for information.
(c) Post at its Salt Lake City, District Office 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
District Director for the Salt Lake City District, 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Denver Regional Office, 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 furnish the National Treasury
Employees Union, the employees' exclusive representative, with the
information requested by the Union on May 24, 1989.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL upon request, furnish the National Treasury Employees Union,
with the information requested on May 24, 1989.
WE WILL upon request of the National Treasury Employees Union,
proceed to arbitration under the collective bargaining agreement on the
matter underlying the request for information.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Denver Regional Office, whose address is: 1244 Speer
Boulevard, Suite 100 Denver, CO 80204, and whose telephone number is:
(303) 844-5224.
Case No. 7-CA-90546
INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
INTERNAL REVENUE SERVICE, SALT LAKE CITY DISTRICT, SALT LAKE CITY,
UTAH
Respondents
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Susan L. Nieser, Esq., Gary A. Anderson, Esq., For Respondents
Matthew Jarvinen, Esq., For General Counsel of the FLRA
Dean Dehart, For the Charging Party
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. Section 7101 et seq., hereinafter referred
to as the Statute, and the Rules and Regulations of the Federal Labor
Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2423.1 et seq.
The charge herein was filed by the National Treasury Employees Union,
hereinafter called NTEU, against Internal Revenue Service, Washington,
D.C., hereinafter called IRS, and Internal Revenue Service, Salt Lake
City District, Salt Lake City, Utah, hereinafter called IRS Salt Lake
City. /5/ Pursuant to this charge the General Counsel of the FLRA, by
the Regional Director of Region VII of the FLRA, issued a Complaint and
Notice of Hearing alleging that Respondents violated section 7116(a)(1),
(5) and (8) of the Statute by refusing to furnish NTEU with requested
information. Respondents filed an answer denying the Statute had been
violated.
A hearing in this matter was conducted before the undersigned in
Farmington, Utah. Respondents, NTEU and General Counsel of the FLRA
were represented and afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence and to argue orally.
Briefs were filed and have been fully considered.
Based upon the entire record in this matter, /6/ my observation of
the witnesses and their demeanor, and my evaluation of the evidence, I
make the following:
At all material times NTEU has been the exclusive collective
bargaining representative for a nationwide unit of certain IRS employees
employed in IRS District Offices, Regional Offices and the National
Office, including IRS employees in IRS Salt Lake City. NTEU Chapter 17
is the NTEU local that represents the approximately 250 unit employees
at IRS Salt Lake City. IRS and NTEU are parties to a collective
bargaining agreement, NORD III, that became effective on July 1, 1989,
and applied to all unit employees including those employed at IRS Salt
Lake City. Prior thereto IRS and NTEU were parties to NORD II
(Revised), which was the applicable agreement. Article 39 of both Nord
II (Revised) and Nord III provides that in adverse actions management
should consider, among a number of factors, "consistency of the penalty
with those imposed upon other employees for the same or similar
offenses," in deciding upon the appropriate discipline.
The Southwest Region of IRS is composed of fourteen separate offices
with approximately 17,000 to 18,000 bargaining unit employees. The IRS
Southwest Region is composed of the Regional Office in Dallas, the
Austin Service Center with about 3,000 to 4,000 unit employees, the
Ogden Service Center with about 3,000 to 4,000 unit employees, the
Albuquerque District Office, the Austin District Office with about 670
unit employees, the Austin Compliance Center with about 1,200 to 1,500
unit employees, the Cheyenne District Office, the Dallas District Office
with about 2,500 unit employees, the Denver District Office with about
1,000 unit employees, the Houston District Office with about 1,500 unit
employees, the Oklahoma City District Office, the Phoenix District
Office, IRS Salt Lake City, and the Wichita District Office.
Each component office of the IRS Southwest Region is serviced by the
Employee Management Relations Section (EMR) which provides advice to
individual office management concerning labor relations.
IRS maintains a computer system to organize tax data on taxpayers
throughout the country called the "Integrated Data Retrieval System"
(IDRS). Some employees are authorized to put data into or to change
modify data within IDRS, but others, including Revenue Officers, are
only authorized to look up information in IDRS. IRS has strict rules
governing access to IDRS. Access to IDRS is allowed only if the IRS
employee has a specific need to know the information and is doing work
on the specific taxpayer's account that is being accessed. Employees
are not allowed to access the system to look up information in their own
accounts or in the accounts of relatives or any other individuals,
especially those accounts in which an employee has a personal or
financial interest.
At all times material the grievant has been employed at IRS Salt Lake
City as a Revenue Officer and is an employee in the unit represented by
NTEU. The grievant contacted NTEU Chapter 17 Chief Steward Jim Richards
to represent her at an interview by Inspections concerning illegal
access to IDRS.
Subsequent to the interview, a proposed letter of removal was issued
to the grievant on May 16, 1989, by Jeffrey Stetina, Chief of Collection
and Taxpayer Service at IRS Salt Lake City, because of alleged
falsification of an official document and improper access to IDRS. With
respect to the latter allegation the grievant was accused of utilizing
IDRS to examine, among others, the accounts of her husband's mistress,
her mother and her stepfather. Because of the nature of the proposed
adverse action, Richards contacted NTEU's Regional Office in Denver and
requested National Field Representative Kathleen MacKenzie represent the
grievant. MacKenzie agreed and asked Richards to request an oral reply
on behalf of the grievant. By a letter dated May 23, 1989 Richards
advised Stetina that MacKenzie would serve as the grievant's union
representative and requested an oral reply.
By letter to Stetina dated May 24, 1989, NTEU Chapter 17 requested
information pursuant to section 7114(b)(4) of the Statute in order to
represent the grievant at the oral reply. Article 39 of NORD II
(Revised) provides for such oral reply.
Item 4 of the request asked for copies of,
All proposal letters, decision letters, letters of reprimand, and
oral admonishments confirmed in writing, counseling memos, closed
without action letters and clearance letters issue (sic) to all
employees in the Southwest Region from January 1, 1984 to the
present concerning the alleged accessing of the employee's own tax
return or of another individual's tax return for personal purposes
including partnerships and corporate tax returns.
The letter requesting the information stated that the information was
needed so the union could adequately represent the grievant at the oral
reply. The information was to be used to determine whether the proposed
discipline was consistent with the discipline given to other employees
in the Southwest Region for similar conduct.
Upon receipt of the request for information Kathleen Hirabayashi,
Labor Relations Specialist in the EMR located in the Ogden Service
Center, contacted Region Labor Relations Specialist Bill Walker, at the
IRS Regional Office, asking about the types of disciplinary records
maintained at the regional level. Walker advised Hirabayashi that
Region-wide records could not be provided, but that they would provide
records to the union if it provided the names of specific cases. They
did not discuss what records could be retrieved. Neither Walker nor
Hirabayashi made any attempt to ascertain whether the requested
disciplinary records were maintained and available at other offices
within the Southwest Region.
Stetina responded to the request for information by an undated
memorandum to MacKenzie, which was received by MacKenzie on June 12,
1989, and which was signed for Stetina by Richard Hardman. Hirabayashi
helped in the preparation of the memorandum. With respect to the
request for region-wide disciplinary records, the response stated:
The information requested in item #4 has not been attached. The
proposal imposed on the grievant is consistent with the Salt Lake
District Office. Therefore, the information concerning all
employees in the Southwest Region does not apply. If there are
any specific cases you can reference, I can check for their
availability within the scope of my office.
With respect to the foregoing response, Hirabayashi testified that
information concerning the Southwest Region "does not apply" meant that
such information was considered by IRS not to be relevant to the adverse
action proposed against the grievant.
On June 13, 1989, MacKenzie called Stetina and talked to Hardman in
Stetina's absence. MacKenzie advised Hardman that under the existing
law NTEU believed it was entitled to the Region-wide information and
that she needed it right away. Hardman said he would check with
Hirabayashi and get back to MacKenzie.
On June 14, 1989 IRS attorney Susan L. Neiser called MacKenzie and
informed her that IRS would provide the union with disciplinary
information for IRS Salt Lake City concerning employees accused of
improper IDRS access, but would not provide Region-wide information.
MacKenzie argued NTEU was entitled, under the law, to the Region-wide
information, citing Internal Revenue Service, Western Region, San
Francisco, California, 9 FLRA 480 (1982). /7/ Neiser responded that
decisions of the Merit Systems Protection Board (MSPB) stated that
Region-wide information need not be provided. She said further that
Region-wide information was not relevant. Neiser suggested that
MacKenzie communicate with Hirabayashi to secure the disciplinary
information for IRS Salt Lake City. Neiser did not state that the
requested Region-wide records were not normally maintained by IRS, that
it would be burdensome to provide the Region-wide information, that
release of the information was prohibited by the law, or that the
request should have been directed to the Southwest Region.
On June 15, 1989, MacKenzie called Hirabayashi and renewed the
request for the Region-wide information, referring to IRS Western
Region, supra. Although denying the request for Region-wide
information, Hirabayashi agreed to send MacKenzie the IRS Salt Lake City
disciplinary records by FAX. MacKenzie also asked for information
concerning the number of improper accesses to IDRS at IRS Salt Lake
City. Hirabayashi indicated that would be no problem and agreed to send
a printout of this information. Hirabayashi also agreed to provide the
full audit trail of the grievant's allegedly improper accesses to IDRS.
With respect to MacKenzie's request for a copy of IRS employee Tonni
Johnson's "Daily Report of Collection", Hirabayashi and MacKenzie agreed
that, because of the huge volume of such reports, management would make
the daily reports available for Richards to review and management would
provide NTEU with copies of the documents specified by Richards.
Hirabayashi did not indicate that to provide the requested region wide
information was burdensome, that such records were not normally kept by
IRS, that release of the records were prohibited by law, or that the
request for the information should have been directed to the Regional
Office or to the individual offices within the Southwest Region.
On June 16, 1989, MacKenzie received from Hirabayashi a FAX which
contained the IDRS audit trail for the grievant, a computer printout of
all illegal accesses to IDRS in IRS Salt Lake City between August 1983
and December 1988, and proposal and decision letters in the cases of two
employees at IRS Salt Lake City who had been disciplined for improper
IDRS access. In order to obtain the documents concerning the two
employees at IRS Salt Lake City who had been disciplined Hirabayashi
examined a logbook for IRS Salt Lake City maintained in the EMR Section,
which was physically located in the Ogden Service Center, and identified
the two employees who had been disciplined. She then retrieved the
appropriate documents from a comprehensive file system also maintained
in the EMR Section. It took Hirabayashi about one-half hour to identify
the two disciplined employees and to obtain the documents.
The record herein establishes that seven offices in the Southwest
Region /8/ maintained logbooks similar to the logbooks maintained in IRS
Salt Lake City and Ogden Service Center. These logbooks contain
chronological listings of all discipline cases and adverse actions
against the employees in each office. The logbooks, list among other
items, the names of the employees, a brief description of basis of the
discipline, the date of the action or proposed action, the date the case
was closed and the final disposition of the case. Hirabayashi examined
the IRS Salt Lake City logbook under adverse actions and discipline
cases and looked at the brief descriptions of the bases for actions to
ascertain whether illegal IDRS access was involved. Walker testified
that he was pretty sure most offices do maintain such logbooks and
Respondents put in no evidence that all the individual offices did not
maintain such log books.
In light of the foregoing and because Respondents, with knowledge
whether such logbooks are maintained in each office, did not deny the
existence of such logbooks, I find that each office in the Southwest
Region does maintain such a logbook that permits easy identification of
employees who were disciplined or were the subject of adverse actions
because of illegal access to IDRS.
No records or logbooks of disciplinary and adverse actions are
maintained by IRS at either the national level or at the Southwest
Region.
IRS' regulations require that records of disciplinary and adverse
actions must be maintained for various periods. The EMR section at
Ogden Service Center maintains separate files for IRS Salt Lake City and
Ogden Service Center for all discipline and adverse actions for three
years. For each action the individual file contains the proposal
letter, the decision, and related background material. IRS requires
that adverse action files must be retained for four years and discipline
case files must be retained for two years, or if appealed for five
years. No evidence was submitted that any offices in the Southwest
Region did not maintain such files for a number of years.
In light of the foregoing I find that all the offices in the
Southwest Region maintain for a number of years an individual file for
each discipline and adverse action and that once an individual
discipline or adverse action is identified it is a simple matter to
retrieve the case file and have access to the documents.
The record, however, establishes that no such individual files for
discipline or adverse actions are maintained on a Region-wide basis in
the Southwest Regional Office.
On June 16, 1989, after receiving the documents sent by Hirabayashi,
MacKenzie called Hirabayashi and repeated the request for the
Region-wide information and to request a postponement of the June 23
oral reply meeting. Hirabayashi denied both requests. MacKenzie asked
Hirabayashi if any of those listed on the printout of illegal IDRS
accesses had been disciplined. Hirabayashi later advised MacKenzie that
none of those so listed had been disciplined.
By letter dated June 16, 1989 to Hardman, Stetina and Hirabayshi,
MacKenzie renewed the request for Region-wide disciplinary records
needed to represent the grievant at the oral reply. MacKenzie received
no reply.
The oral reply meeting was held on June 23, 1989. MacKenzie,
representing the grievant, asked for a postponement until the union
received Region-wide disciplinary records involving illegal access to
IDRS. MacKenzie explained NTEU was entitled to the Region-wide records
because the collective bargaining agreement covers a nationwide unit and
the requested records would enable the union to determine whether the
grievant's penalty was consistent with penalties imposed for similar
infractions, as required by the collective bargaining agreement.
MacKenzie argued that employees must be treated fairly throughout the
nation, not just within IRS Salt Lake City. MacKenzie stated that NTEU
would settle for Region-wide records and would not demand nationwide
records. Hirabayashi stated she wished to proceed with the oral reply
meeting based on the policies at IRS Salt Lake City. Hirabayashi also
stated that Region-wide records were not maintained at IRS Salt Lake
City, that she was not sure whether such records were maintained by IRS
at the Region, and that if NTEU could cite specific cases within the
Region she would provide the disciplinary records for such cases.
Hirabayashi informed MacKenzie that Hirabayashi had been advised by the
Regional Counsel that to provide the records on a Region-wide basis
would be a voluminous job.
MacKenzie then asked that the oral reply meeting be postponed until
NTEU received information about specific cases. Hirabayashi refused to
agree to the postponement. After again referring Hirabayashi to IRS
Western Region, supra, in support of the Region-wide request, MacKenzie
proceeded to make the oral reply.
On July 27, 1989, the grievant was issued a 30-day suspension based
on the charges contained in the May 16 letter of proposed removal.
MacKenzie rushed a letter to District Director Carol Fay renewing the
request for the Region-wide information so the union would have a chance
to litigate the issue after being able to evaluate the information and
make an informed decision. MacKenzie also asked that the suspension be
stayed until after she received the information. Neiser responded that
IRS was not going to stay the suspension.
On August 14, 1989, NTEU and NTEU Chapter 17 invoked arbitration over
the grievant's suspension. The arbitration hearing was scheduled for
February 7, 1990.
General Counsel of the FLRA contends that Respondents violated
section 7116(a)(1)(5) and (8) of the Statute by failing to comply with
section 7114(b)(4) of the Statute by failing and refusing to furnish
NTEU with Region-wide disciplinary records needed by the union to
represent a unit employee at an oral reply concerning a proposal to
remove the grievant based on improper access to IDRS.
In defining an agency's duty to negotiate in good faith, section
7114(b)(4) of the Statute requires an agency, to the extent not
prohibited by law, to furnish the exclusive representative data which is
normally maintained by the agency 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; and which does not constitute guidance,
counsel or training for management officials or supervisors, relating to
collective bargaining.
Respondents contend that since the Respondents did not maintain the
requested Region-wide records "in this manner" it did not maintain the
requested records, and this is a valid defense to a request under
section 7114(b)(4) of the Statute, citing Federal Aviation
Administration, Alaska Region Office, 7 FLRA 164 (1981). The cited case
involved management's refusal to furnish supervisors to the union to
testify at an arbitration. The FLRA decided that witnesses were not
data within the meaning of section 7114(b)(4) of the Statute and this
case is inapposite to the subject case. IRS did in fact maintain the
files containing the requested documents. It maintained the requested
data in the form requested, although not in the Regional Office or in
any one office. I find no requirement in the Statute that the requested
data must be maintained in any one place for a union to be entitled to
it under section 7114(b)(4). Cf IRS Western Region, supra; and
Department of Defense Dependents Schools, Washington, D.C. and
Department of Defense Dependents Schools, Germany Region, 19 FLRA 790
(1985), reversed on other grounds and remanded, sub nom., North Germany
Area Council, Overseas Education Association v. FLRA, 805 F. 2d 1044
(D.C. Cir. 1986), modified on remand, 28 FLRA 202 (1987), hereinafter
called DODDS.
Section 7114(b)(4)(A) requires only that the agency must furnish the
requested data when it is normally maintained by the agency in the
regular course of business.
The record establishes that each office in the Southwest Region
maintained separate files for a number of years for each individual
discipline and adverse action which contained the pertinent documents
for each case. These files are kept in each office in a system whereby
each case file can be located once the name of the individual is
identified.
Respondents claim, very similar to the argument described above, that
because such files were not kept in the Regional Office, or in any one
office, they were not normally maintained by the agency in the regular
course of business. This contention is rejected. Rather the record
establishes that each office within the Southwest Region did normally
maintain the files containing the documents requested in the regular
course of business. Thus such data was maintained on a Region-wide
basis, albeit not in the Regional Office or even in any one office.
There is no requirement in the Statute that for data to be maintained in
the normal course of business it must be kept in any special place or,
for that matter, that it be kept in any one place. Cf. IRS Western
Region, supra, and DODDS, supra.
In light of the foregoing, I conclude that the request for the
documents concerning employees who were disciplined for improper
accessing the IDRS on a Region-wide basis was a request for data that is
maintained in the normal course of business, within the meaning of
section 7114(b)(4)(A) of the Statute.
Section 7114(b)(4)(B) of the Statute requires that requested data
must be "reasonably available". Respondents contend that to supply the
requested documents in the subject case would have been unduly
burdensome, voluminous was the expression used to deny the request, so
they were permitted to deny the union's request. Respondents put in no
evidence as to the voluminous nature of filling the request for
documents. Rather Respondents seem to rely on the fact that the
requested documents are contained in files that are located in fourteen
separate offices. There was no estimate as to how many documents would
have been involved and how much time would have been needed to identify,
obtain and copy the requested document. The record establishes that
each office contained a logbook and that it was a relatively easy matter
to check the logbooks for disciplinary or adverse actions taken against
employees for illegal access to IDRS. It was then a simple matter to
obtain from the appropriate discipline file the requested documents.
Accordingly, I conclude that Respondents failed to establish that it
would have been unduly burdensome to provide NTEU with the requested
data. See IRS Western Region, supra; DODDS, supra; and Department of
Justice, United States Immigration and Naturalization Service, United
States Border Patrol, El Paso, Texas, Case No. 6-CA-80173, OALJ 90-17
(1989), hereinafter called INS.
Section 7114(b)(4)(B) of the Statute requires an agency to furnish
the exclusive representative of its employees information that is
necessary to enable the union to fulfill its representational
responsibilities. DODDS, supra, and IRS Western Region, supra. These
representational responsibilities include representing employees who are
being, or have been disciplined, and determining whether to take the
matters to arbitration, etc. In representing such employees the union
is entitled to information necessary to determine whether the employee
being represented was treated differently for the same or similar
misconduct as other employees and supervisors. Such information
includes the discipline records of employees and supervisors who were
disciplined for misconduct similar that engaged in by the employee
represented by the union. DODDS, supra.
In the subject case NTEU was representing the grievant with respect
to the proposed adverse action and resulting penalty based upon her
illegal access to IDRS. NORD II (Revised) and later NORD III, was a
collective bargaining agreement for a nationwide unit of employees that
required, in Article 39-Adverse Actions, that one of the considerations
in determining whether an action against an employee is appropriate is
"consistency of the penalty with those imposed upon employees for the
same or similar offenses."
The documents requested would have permitted NTEU to make a judgement
before the oral reply and before deciding whether to take the matter to
arbitration whether the grievant's proposed punishment and actual
punishment were consistent with the penalties imposed upon other
employees who engaged in similar misconduct. Thus I conclude the
documents requested by NTEU were "necessary" for negotiation within the
meaning of section 7114(b)(4)(B) of the Statute. DODDS, supra, and IRS
Western Region, supra.
Respondents contend that the Region-wide data is irrelevant and not
necessary for evaluating disparate treatment with respect to the
grievant's proposed punishment and actual punishment. In so arguing
Respondents rely upon cases involving determinations by the Merit
Systems Protection Board (MSPB), for the proposition that the only
relevant information for the purposes of evaluating disparate treatment
is from the employee's same module or work unit. Carroll v. Dept. of
Health and Human Services, 703 F. 2d 1388, 1390 (Fed. Cir. 1983);
Phillips v. GSA, 38 M.S.P.R. 206 (1988), rev'd on other grounds 878 F.
2d 370 (Fed. Cir. 1989); Taylor v. Dept. of Navy, 35 M.S.P.R. 438
(1987); Little v. TVA, 20 M.S.P.R. 563 (1984); and Gooch v. Postal
Service, 30 M.S.P.R. 90 (1986); see also Kuhlman v. Dept. of Health and
Human Services, 10 M.S.P.R. 356 (1982) and Mills v. Dept. of Navy, 30
M.S.P.R. 403 (1986).
Respondents argue that because section 7121 of the Statute permits an
employee to appeal an adverse action to either the MSPB or through the
grievance procedure to arbitration, and because the Civil Service Reform
Act was intended to apply equally, no matter what the forum, arbitrators
must apply the same substantive rules and standards that would be
applied by the MSPB in deciding whether an adverse action was proper.
Respondents cited Cornelius v. Nutt, 472 U.S. 648 (1985), to support
this position. Thus, argues Respondents, an arbitrator in the subject
case could not consider the consistency of adverse actions given to
employees outside the grievant's same module or work unit, and the
Region-wide data is irrelevant and unnecessary.
In Cornelius v. Nutt, supra, the Supreme Court held that an
arbitrator hearing a case under the contractual grievance procedure,
involving review of an agency's adverse action against two employees,
must apply MSPB's definition of "harmful error". In concluding the
arbitrator erred in failing to apply MSPB's "harmful error" definition
the Supreme Court relied on language in Conference Committee report to
the Civil Service reform act that stated, "'when considering a grievance
involving an adverse action otherwise appealable to the (Board) . . .
the arbitrator must follow the same rules governing burden of proof and
standard of proof that govern adverse actions before the Board.' H.R.
Conf. Rep. No. 95-1717, p 157 (1978)." Cornelius v. Nutt, supra, at 661.
In light of the foregoing it would at first appear that MSPB's rule
limiting disparate treatment consideration only to work module
information would apply in the subject case. However, the holding in
Cornelius v. Nutt, supra, is that the same rules and standards shall
apply to matters that can be taken to either MSPB or arbitration. This
was to lead to uniformity in disposition of cases thus avoiding forum
shopping. The Supreme Court stated that in reviewing an agency's
disciplinary action to determine if there was harmful error in the
application of the agency's procedures in arriving at such discipline,
if there is a collective bargaining agreement, "The agency's
'procedures' considered by the Board . . . include not only procedures
required by statute, rule, or regulation, but also procedures required
by the collective bargaining agreement. . . . Thus, in an appeal of an
agency disciplinary decision to the Board, the agency's failure to
follow bargained-for procedures may result in the action being
overturned, but only if the failure might have affected the result of
the agency's decision to take disciplinary action . . ." Cornelius v.
Nutt, supra, at 659. The Supreme Court was preventing forum shopping by
insuring uniformity in the application of law and standards in each
individual case, regardless of the forum used, while at the same time
recognizing that labor organizations and agencies engaged in collective
bargaining can create rights and obligations which must be enforced and
recognized, again, regardless of the forum used.
Under the holding of Cornelius v. Nutt, supra, an arbitrator and MSPB
would have to consider Article 39 of the NORD II (Revised) in
determining whether the grievant's punishment was appropriate. Thus
Article 39's requirement of consistency of the penalty with those
imposed upon employees for the same or similar offenses would have to be
applied and interpreted by an arbitrator or MSPB, depending upon the
forum in which review were sought. In the subject case, noting that
NORD II (Revised) and NORD III both cover a nationwide unit, an
arbitrator might very reasonably determine that nationwide or
Region-wide data would be appropriate in determining disparate treatment
in the grievant's situation. In the subject case the MSPB cases cited
and relied upon by Respondents would not prevent such consideration by
an arbitrator, or by MSPB, because they do not involve applying and
interpreting the terms of collective bargaining agreements in
determining the areas to be considered in determining if there had been
disparate treatment in discipline cases.
In light of all of the foregoing, I conclude MSPB law does not
prevent an arbitrator from considering Region-wide data in determining
if the grievant's penalty was appropriate. Thus such information was
necessary for NTEU to consider in preparing to represent the grievant at
the oral reply and deciding how best to represent her, including whether
to proceed to arbitration. DODDS, supra, and IRS Western Region, supra.
In this regard I also note the language of the FLRA in Department of
the Air Force, Wright-Patterson Air Force Base, 21 FLRA 529 (1986),
wherein it states, "The Authority does not agree with the Judge's
finding that 'the comparison of penalties imposed by a diverse group of
AFLC management officials in different environments would not be
relevant and necessary to the processing of the . . . grievance.'
Rather, given the general mandate of 'like penalties for like offenses
in like circumstances,' the Authority would find such data necessary for
the Union to fulfill its representational duties if the information
related to discipline of unit employees for similar offenses." Id
footnote at 532.
In their brief Respondents contend that because NTEU did not direct
the request for Region-wide data to the Regional Office or to each of
the individual offices within the Region, Respondents were not obliged
to provide the requested data. I reject this contention. NTEU made the
request for information to the IRS representative involved in the
grievant's discipline. There was no indication made by Respondents at
that time that the request was made to the improper person. Rather
Respondents denied the request for other reasons. I conclude that the
request for data herein was appropriately made by NTEU.
I reject Respondents' contention that the request for data was too
broad because it presumably included employees not within the unit.
Again I note that this objection was not raised at the time of the
request. The FLRA has held that requests for data for non-unit persons
is relevant for comparing consistency of penalties. See DODDS, supra,
and Department of the Air Force, Wright-Patterson Air Force Base, supra.
Respondents at no time have alleged that providing the requested
information is prohibited by any law. Rather it provided the data for
IRS Salt Lake City and offered to provide it for any individual that
NTEU could specifically identify. Accordingly, I conclude that the
record herein fails to establish that providing the requested data was
prohibited by any law.
The data herein was requested for the period from 1984 until the date
of the request. Respondents did not contend that they no longer had all
the requested documents and produced no evidence to that effect. Of
course Respondents are obliged to furnish only the documents they have.
Respondents have at no time contended that the requested data was
guidance, advice, counsel or training provided management officials or
supervisors, relating to collective bargaining and put in no evidence to
support such a finding. Accordingly, I find the requested data was not
such guidance, advice, counsel or training.
In light of all of the foregoing I conclude that Respondents were
obliged under section 7114(b)(4) of the Statute to furnish to NTEU the
Region-wide data it requested and Respondents failure to comply with the
request for the information constituted a violation of section
7116(a)(1)(5) and (8) of the Statute. IRS Western Region, supra, and
DODDS, supra.
Because arbitration was being sought to review the grievant's
punishment and the requested data was to be used to decide whether to
proceed to arbitration and, if arbitration is sought, to be presented to
the arbitrator, I conclude the appropriate remedy herein must require
Respondents to furnish the requested data and, upon request of NTEU, to
proceed to arbitration concerning the grievant's punishment.
Having found that Respondents violated section 7116(a)(1)(5) and (8)
of the Statute, I recommend the authority issue the following Order:
Pursuant to section 2423.9 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is hereby ordered that Internal Revenue Service, Washington,
D.C. and Internal Revenue Service, Salt Lake City District, Salt Lake
City, Utah shall:
1. Cease and desist from:
(a) Failing and refusing to furnish National Treasury Employees
Union, the employees' exclusive representative, all disciplinary
documents issued to all employees in the Southwest Region from January
1, 1984 until May 24, 1989 concerning alleged improper accessing of the
employee's own tax return or another individual's tax return for
personal purposes including partnerships and corporate tax returns.
(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) Furnish the National Treasury Employees Union all disciplinary
documents issued to all employees in the Southwest Region from January
1, 1984 until May 24, 1989 concerning alleged improper accessing of the
employee's own tax return or another individual's tax return for
personal purposes including partnerships and corporate tax returns.
(b) Upon the request of National Treasury Employees Union, proceed to
arbitration under the collective bargaining agreement concerning the
penalty issued to the grievant for her alleged improper access to the
Integrated Data Retrieval System.
(c) Post at the Salt Lake City District Office copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such they shall be signed by the District
Director for the Salt Lake City District and shall be posted and
maintained by him for 60 consecutive days thereafter, in conspicuous
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, Region VII in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
Issued: September 25, 1990, Washington, D.C.
/s/ SAMUEL A. CHAITOVITZ
SAMUEL A. CHAITOVITZ
Administrative Law Judge
(1) On March 15, 1991, the Authority granted the Charging Party's
motion, which was not opposed by the General Counsel or the Respondents,
to delete all references to the affected employee's name from any
subsequent decision and order or publication issued by the Authority and
to substitute, in lieu thereof, "the grievant."
(2) At the time of the Union's original request for information, the
Union and the Respondents were parties to a predecessor agreement, "NORD
II." Brief in Support of Exceptions at 21. There are no differences
relevant to this case between Article 39 of NORD II and Article 39 of
NORD III. Id. at 22 n. 5; Judge's Decision at 2.
(3) The Southwest Region is composed of 14 separate offices and
approximately 18,000 unit employees.
(4) In so concluding, we find it unnecessary to address, and do not
adopt, the Judge's conclusions regarding the MSPB and court cases relied
on by the Respondents or the Judge's statements regarding Article 39 of
NORD III.
(5) Collectively referred to as Respondents.
(6) General Counsel of the FLRA filed a motion to correct the
transcript of the hearing herein. This motion was unopposed.
Accordingly this motion is hereby GRANTED and a copy of the motion is
attached hereto as APPENDIX.
(7) Hereinafter referred to as IRS Western Region.
(8) IRS Salt Lake City, Ogden Service Center, Austin Service Center,
Denver District Office, Dallas District Office, Houston District Office
and Oklahoma City District Office.
WE WILL NOT fail and refuse to furnish National Treasury Employees
Union, the employees' exclusive representative, all disciplinary
documents issued to all employees in the Southwest Region from January
1, 1984 until May 24, 1989 concerning alleged improper accessing of the
employee's own tax return or another individual's tax return for
personal purposes including partnerships and corporate tax returns.
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 National Treasury Employees Union all
disciplinary documents issued to all employees in the Southwest Region
from January 1, 1984 until May 24, 1989 concerning alleged improper
accessing of the employee's own tax return or another individual's tax
return for personal purposes including partnerships and corporate tax
returns.
WE WILL upon the request of National Treasury Employees Union,
proceed to arbitration under the collective bargaining agreement
concerning the penalty issued to the grievant for her alleged improper
access to the Integrated Data Retrieval System.
(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,
Region VII, whose address is: 535 16th Street, Suite 310, Denver, CO
80202 and whose telephone number is: (303) 844-5224.
Case No. 7-CA-90546
INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
INTERNAL REVENUE SERVICE, SALT LAKE CITY DISTRICT, SALT LAKE CITY,
UTAH
NATIONAL TREASURY EMPLOYEES UNION
COMES NOW the Counsel for the General Counsel and moves to correct
the transcript of the proceedings as follows so that it may correctly
reflect the proceedings in this matter:
Respectfully submitted,
/s/ MATTHEW JARVINEN
Matthew Jarvinen
Counsel for the General Counsel
Federal Labor Relations Authority
Region VII, 535-16th Street,
Suite 310
Denver, CO 80202
(303) 844-5224; FTS: 564-5224
40 FLRA 290
40 FLRA NO. 30
Dept. of Veterans Affairs, Veterans Administration Medical Center,
San Francisco, California and Karen O'Rourke, Case No. 9-CA-80315 and
80473 (Decided April 19, 1991)
7116(a)(1), (2) and (6)
7102
7103(a)(2)(A)
UNFAIR LABOR PRACTICE
PROTECTED ACTIVITY
EMPLOYEE
PROFESSIONAL MEDICAL EMPLOYEE
38 U.S.C. 4104
38 U.S.C. 4106(b)
38 U.S.C. 4110
DISCRIMINATION FOR UNION ACTIVITY
LETTERKENNY FRAMEWORK
The consolidated cases were before the Authority pursuant to the
granting of the Respondent's request for special permission to appeal an
ALJ's denial of Respondent's motion for summary judgment in Case No.
9-CA-80473, which alleged that Charging Party O'Rourke was removed, in
part, based on consideration of her activities protected by 7102. The
earlier filed 9-CA-80315 alleged that the Respondent violated 7116(a)(
1) by interrogating O'Rourke about efforts to organize a labor
organization and by promulgating an overly broad no-solicitation,
no-distribution rule.
The Authority noted at the outset that it was clear that the Charging
Party was an "employee" within the meaning of section 7102 of the
Statute. It was also clear that as a professional medical employee
appointed pursuant to 38 U.S.C. 4104, the Charging Party does not have a
right to bargain collectively, through representatives chosen by
employees under the Statute, over conditions of employment. The
Authority found, however, that they have no basis on which to conclude
that the absence of rights under 7102(2) affects the other rights
encompassed by section 7102. Accordingly, the Authority held that the
Charging Party has the right to form, join, or assist a labor
organization without fear of penalty or reprisal under 7102 of the
Statute. The Authority found it has statutory jurisdiction to resolve
the consolidated ULP complaints in the case.
With respect to the 7116(a)(1) and (2) allegations contained in
9-CA-80473, the Authority found that their analytical framework from
Letterkenny is not applicable in the facts of this case because the
Respondent has exclusive authority under title 38 to determine to
separate the Charging Party. Consistent with the Respondent's authority
to issue regulations regarding working conditions under 38 U. S.C. 4108
as well as its authority to take action resulting from recommendations
of disciplinary boards established under 38 U.S.C. 4110, the Authority
concluded that the Respondent's authority to separate, or take other
actions affecting the employment status, of probationary employees under
38 U.S.C. 4106 is exclusive.
The Authority held that, in resolving ULP complaints alleging
violations of 7116(a)(2) involving professional employees of the
Department of Veterans Affairs, a respondent's asserted lawful reasons
for taking the allegedly unlawful action must be evaluated with due
regard for the Agency's exclusive authority to determine working
conditions and make decisions regarding inaptitude, inefficiency, and
misconduct under title 38. To the extent that a respondent asserts a
lawful reason for taking a disputed action, and that reason is
consistent with a final determination made pursuant to the exercise of
the Agency's exclusive authority under title 38, review of such action
may be sought only pursuant to the procedures, if any, set forth in
title 38 and/or Agency regulations issued pursuant to title 38. A final
determination made pursuant to such exclusive authority will not be
substantively reviewable in an ULP proceeding. Accordingly, to the
extent that the complaint in 9-CA-80473 encompasses the Charging Party's
separation, the complaint was dismissed.
As to the allegations in 9-CA-80473 alleging that Respondent violated
the Statute by making certain statements to the Charging Party and the
complaint in 9-CA-80315 alleging that the Respondent violated the
Statute by impermissably interrogating an employee and by promulgating
an allegedly improper no-solicitation, no distribution rule, the
Authority remanded those aspects of the complaints to the ALJ for action
consistent with the decision.
Case No. 9-CA-80315, 9-CA-80473
U.S. DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL
CENTER, SAN FRANCISCO, CALIFORNIA
(Respondent)
KAREN O'ROURKE
(Charging Party)
Before Chairman McKee and Members Talkin and Armendariz.
These consolidated cases are before the Authority pursuant to the
Authority's Order granting the Respondent's request, in which the
General Counsel joined, for special permission to appeal an
Administrative Law Judge's denial of the Respondent's motion for summary
judgment in Case No. 9-CA-80473. /1/ Pursuant to the Authority's order,
the Respondent and the General Counsel filed briefs.
For the following reasons, we conclude that the Respondent's motion
for summary judgment must be granted in part. We will dismiss part of
the complaint in Case No. 9-CA-80473 and remand the remaining portions
of that complaint, as well as the complaint in Case No. 9-CA-80315, to
the Judge for proceedings consistent with this decision.
In August 1987, the Charging Party was appointed by the Respondent
under the provisions of 38 U.S.C. Section 4104 as a staff registered
nurse. The appointment was subject to a 2-year probationary period.
On April 27, 1988, the Charging Party filed an unfair labor practice
charge (Case No. 9-CA-80315) alleging that the Respondent violated the
Statute by (1) interrogating an employee about efforts to organize a
labor organization, and (2) telling an employee that union
organizational material could not be distributed at the Respondent's
facility. /2/
On June 15, the Charging Party received a proficiency report,
prepared by the Head Nurse of the Intensive Care Unit, rating the
Charging Party's performance as a staff registered nurse as
unsatisfactory. The Head Nurse recommended that the Charging Party's
probationary period not be continued and that a Nurse Professional
Standards Board (NPSB) consider her termination. The Chief of Nursing
Service concurred in the recommendation. On July 14, the NPSB convened
to review the Charging Party's professional record. The NPSB found that
the Charging Party's performance was unsatisfactory and did not
recommend her retention in a probationary status.
On July 15, the complaint was issued in Case No. 9-CA-80315, alleging
that the Respondent violated section 7116(a)(1) of the Statute by
interrogating an employee about efforts to organize a labor organization
and by promulgating an overly broad no-solicitation, no-distribution
rule.
By letter dated July 22, the NPSB recommended that the Respondent's
Chief Medical Director take action to remove the Charging Party from her
position for failing to perform satisfactorily during her probationary
period. On July 26, the Charging Party filed a second unfair labor
practice charge (Case No. 9-CA-80473) alleging, in part, that the NPSB's
action was based on consideration of the Charging Party's activities
protected by section 7102 of the Statute. The charge alleged that the
NPSB met and terminated the Charging Party's employment on July 14.
By letter to the Charging Party dated August 11, the Medical Center
Director stated that the Charging Party had been absent without leave
(AWOL) for all scheduled duty days since July 14. The letter stated
that if a satisfactory explanation of the absence was not received by
August 24, a second NPSB would be convened to determine whether the
Charging Party should be recommended for separation on the ground of
abandonment of position. The Charging Party did not respond to the
letter and, on August 25, the NPSB convened, determined that the
Charging Party had abandoned her position, and recommended her removal
on that basis. By letter dated August 25, the Medical Center Director
notified the Charging Party that she had been removed from her position,
effective that date, because she had abandoned her position.
On February 28, 1989, the Charging Party amended the charge in Case
No. 9-CA-80473 to include, as relevant here, the allegation that the
Respondent removed her from her position because she had engaged in
activities protected by the Statute, including filing an unfair labor
practice charge with the Authority. On that same date, a complaint
issued in that case alleging that the Respondent's actions were based on
consideration of the Charging Party's protected activities and, as such,
violated section 7116(a)(1) and (2) of the Statute. Subsequently, the
two complaints now before us were consolidated by the Regional Director.
The Respondent filed a motion for summary judgment in Case No.
9-CA-80473 with the Chief Administrative Law Judge. In support of its
motion, the Respondent argued first that, as the Charging Party was
appointed to and separated from her position under the provisions of
title 38 of the United States Code, the Authority lacked jurisdiction to
resolve the complaint involving her separation. The Respondent argued
also that as the separation was effected on August 25, 1988, the
allegations as to the separation in the amended charge filed on February
28, 1989, were not timely.
The General Counsel opposed the Respondent's motion for summary
judgment, arguing that the Charging Party's status as an employee
appointed under the provisions of title 38 did not deprive her of rights
protected by section 7102 of the Statute. The General Counsel argued
further that the amended charge in Case No. 9-CA-80473 was timely filed
because it merely corrected the incorrect alleged date of termination
contained in the original charge.
The Judge, who was referred the motion by the Chief Administrative
Law Judge, denied the motion. The Judge concluded that as Case No.
9-CA-80473 involved allegations of interference with and discrimination
based on consideration of rights protected by section 7102 of the
Statute, the Respondent had not demonstrated that the Authority lacked
jurisdiction over the complaint. The Judge concluded further that
genuine issues of material fact existed with regard to the timeliness of
the amended charge and denied the motion for summary judgment on that
basis also.
Subsequently, the Respondent filed a request with the Authority for
permission to appeal the Judge's denial of its motion for summary
judgment. The Respondent argued that the Authority lacked jurisdiction
over Case No. 9-CA-80473, and asserted that as the issue was of
paramount importance to the Respondent and the Authority, it should be
resolved before a hearing on the merits of the case. The General
Counsel filed a motion to join the Respondent's request. The Authority
granted the parties' request and provided them an opportunity to file
briefs, and responses to the briefs, on the issue of the Authority's
jurisdiction. The Respondent and the General Counsel filed briefs and
the General Counsel filed a response to the Respondent's brief. /3/
A. The Respondent
The Respondent argues, based on Colorado Nurses Association v. FLRA,
851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses) and American Federation
of Government Employees v. FLRA, 850 F.2d 782 (D.C. Cir. 1988), that
the Authority "lacks jurisdiction over matters involving working
conditions of title 38 employees . . . ." Respondent's Brief at 3. The
Respondent asserts that although the Department of Veterans Affairs'
(Agency's) "exclusive authority over working conditions does not divest
FLRA of jurisdiction to determine (unfair labor practice complaints)
involving title 38 health care professionals(,)" the Authority may not
"substantively review VA's determination that the employee engaged in
misconduct or that his/her performance is deficient." Id. at 4. /4/
B. The General Counsel
The General Counsel argues that the Respondent's reliance on Colorado
Nurses is misplaced. According to the General Counsel, this case does
not involve bargaining rights or rights obtained during the bargaining
process. Instead, the General Counsel asserts that the case "involves
rights protected by section 7116(a)(1)(,) (2) (and) (4) of the Statute,
. . . the right to engage in union organizing and the right to file an
unfair labor practice charge without fear of threat or reprisal."
Attachment to General Counsel's Brief (Opposition to Motion for Summary
Judgment at 2).
In its response to the Respondent's brief, the General Counsel
asserts that there is no "rational basis" for concluding that the
Authority may not inquire "into the legitimacy and adequacy of
Respondent's grounds for terminating (the Charging Party's) employment."
Response at 2. The General Counsel argues that, consistent with
established precedent in similar cases, the Respondent must demonstrate
by a preponderance of the evidence that it would have removed the
Charging Party from her position even in the absence of consideration of
protected activity.
Section 7102 of the Statute provides, in pertinent part:
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right -- (1)
to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities, and (2) to engage in collective
bargaining with respect to conditions of employment through
representatives chosen by employees under this Chapter.
It is clear, and not contested by the Respondent, that the Charging
Party is an "employee," within the meaning of section 7102. See 5 U.S.
C. Section 7103(a)(2)(A), defining "employee," with exceptions not
relevant here, as an individual "employed in an agency(.)" It is also
clear, however, that as a professional medical employee appointed
pursuant to 38 U.S.C. Section 4104, /5/ the Charging Party does not have
a right to bargain collectively, through representatives chosen by
employees under the Statute, over conditions of employment. See
Colorado Nurses, 851 F.2d at 1491 (court held that, pursuant to 38 U.S.
C. Section 4108, Congress granted the Secretary of Veterans Affairs
"exclusive authority to determine the working conditions" of
professional medical employees). /6/ See also American Federation of
Government Employees, Local 3884 and U.S. Department of Veterans
Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34
FLRA 199, 201-02 (1990), petition for review filed sub nom. American
Federation of Government Employees, Local 3884 v. FLRA, No. 90-1379 (8th
Cir. Mar. 9, 1990). Compare U.S. Department of Veterans Affairs,
Medical Center, Danville, Illinois and American Federation of Government
Employees, Local 1963, 34 FLRA 131, 134-36 (1990), aff'd mem. sub nom.
American Federation of Government Employees, Local 1963 v. FLRA, No.
90-2080 (C.D. Ill. Aug. 14, 1990) (Medical Center, Danville)
(Secretary's authority to establish working conditions of such employees
is not subject to negotiated grievance procedures, including
arbitration, under section 7121 of the Statute); U.S. Department of
Veterans Affairs, Washington, D.C. and U.S. Department of Veterans
Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34
FLRA 182 (1990), petition for review filed sub nom. American Federation
of Government Employees v. FLRA, No. 90-1380 (8th Cir. Mar. 9, 1990)
(union is not entitled under section 7114(b)(4) of the Statute to
information necessary to process grievances involving working conditions
of professional medical employees).
Consistent with the foregoing, the Charging Party is not entitled to
exercise the right, under section 7102(2) of the Statute, to "engage in
collective bargaining with respect to conditions of employment through
representatives chosen by employees . . . ." We have no basis on which
to conclude, however, and it is not asserted, that the absence of rights
under section 7102(2) affects the other rights encompassed by section
7102. Accordingly, we hold, as relevant here, that the Charging Party
has the right to form, join, or assist a labor organization without fear
of penalty or reprisal under section 7102 of the Statute.
Unlawful interference by the Respondent with the Charging Party's
right to form, join, or assist a labor organization without fear of
penalty or reprisal would constitute an unfair labor practice under
section 7116(a)(1) of the Statute. For example, Equal Employment
Opportunity Commission, 24 FLRA 851, 855 (1986), aff'd as to other
matters sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987).
Moreover, unlawful discrimination against the Charging Party on the
basis of her exercise of rights under section 7102 would constitute a
violation of section 7116(a)(2) of the Statute. For example,
Letterkenny Army Depot, 35 FLRA 113, 117-26 (1990) (Letterkenny).
The Respondent asserted in its motion for summary judgment that the
Authority lacked jurisdiction over Case No. 9-CA-80473 because of the
Charging Party's status as a professional medical employee. Motion for
Summary Judgment at 2. The Respondent has abandoned that claim,
however. In particular, the Respondent now asserts that the
Respondent's "exclusive authority over working conditions does not
divest FLRA of jurisdiction to determine (unfair labor practice
complaints) involving title 38 health care professionals." Respondent's
Brief at 4.
Although this matter does not now appear to be in dispute, we confirm
that as the Charging Party is covered by and may exercise rights
pursuant to section 7102 of the Statute, and as interference with or
discrimination based on the exercise of those rights constitutes an
unfair labor practice under section 7116(a) of the Statute, the
Authority has statutory jurisdiction to resolve the consolidated unfair
labor practice complaints in this case. Stated simply, as conceded by
the Respondent, the Charging Party's status as a professional medical
employee subject to title 38 of the United States Code does not deprive
the Authority of jurisdiction to resolve complaints alleging violations
of section 7116(a) of the Statute.
The complaint in Case No. 9-CA-80473 alleges that the Respondent
violated section 7116(a)(1) and (2) of the Statute by, among other
things, separating the Charging Party from her position as a staff
registered nurse in reprisal for her exercise of rights protected by
section 7102 to form, join, or assist a labor organization. In other
cases alleging such violations, the General Counsel must establish that
the employee against whom the alleged discriminatory action was taken
was engaged in protected activity and that consideration of such
activity was a motivating factor in the respondent's treatment of the
employee in connection with hiring, tenure, promotion, or other
conditions of employment. Letterkenny, 35 FLRA at 118. If the General
Counsel makes this required prima facie showing, the respondent may seek
to establish, by a preponderance of the evidence, the affirmative
defense that there was a legitimate justification for its action and
that the same action would have been taken even in the absence of the
consideration of protected activity. Id. at 123.
In this case, however, we are unable to apply the framework set forth
in Letterkenny for determining whether the Respondent violated section
7116(a)(1) and (2) by separating the Charging Party. We find, instead,
that as the Respondent has exclusive authority under title 38 to
determine to separate the Charging Party, the Letterkenny framework does
not apply and, as a matter of law, the Respondent's motion for summary
judgment must be granted insofar as it relates to the allegations in
Case No. 9-CA-80473 regarding the separation of the Charging Party.
The Charging Party was separated, during her 2-year probationary
period, by the Respondent's Medical Center Director on the grounds that
she had abandoned her position. The Medical Center Director's decision
was based on a recommendation of the Nurse Professional Standards Board.
The NPSB is established pursuant to 38 U.S.C. Section 4106, which
provides, in relevant part:
(a) Appointments of . . . nurses shall be made only after
qualifications have been satisfactorily established in accordance
with regulations prescribed by the Administrator, without regard
to civil-service requirements.
(b) Such appointments . . . shall be for a probationary period
of two years and the record of each person serving under such
appointment in the . . . Nursing Service() shall be reviewed from
time to time by a board, appointed in accordance with regulations
of the Administrator, and if said board shall find such person not
fully qualified and satisfactory such person shall be separated
from the service.
The regulations, referred to in 38 U.S.C. Section 4106(b), pursuant
to which the NPSB's action in this case were taken, are contained in
Department of Medicine and Surgery (DM&S) Supplement MP-5, Part II,
Chapter 9, Paragraph 9.10, entitled "Abandonment of Position."
Attachment to Respondent's Motion for Summary Judgment. Paragraph 9.10
sets forth the procedures applicable to actions proposed as a result of
alleged abandonment of position and provides for the convening of a
Professional Standards Board to review such actions. Paragraph 9.10(b)
provides that cases involving probationary employees will be processed
by the Board in accordance with regulations contained in DM&S Supplement
MP-5, Part II, Chapter 4, entitled "Probationary Period." Attachment to
Respondent's Motion for Summary Judgment. Those regulations similarly
set forth procedures governing Board deliberations and recommendations.
In particular, a recommendation that an employee be separated during his
or her probationary period is transmitted to the Medical Center Director
who, under MP-5, Part II, Chapter 9, Paragraph 9.13(b), has authority to
approve such recommendation. As noted above, 38 U.S.C. Section 4106(b)
provides that if a Board finds that an employee is "not fully qualified
and satisfactory such person shall be separated from the service."
It is clear and undisputed that the Charging Party's separation for
abandonment of her position was effected pursuant to the foregoing
statutory and regulatory provisions. Further, although no violations of
these provisions are alleged in this case, it is clear also that any
such allegations would not be reviewable pursuant to grievance and
arbitration procedures negotiated under the Statute. See Medical
Center, Danville, 34 FLRA at 134. Indeed, apart from the Agency's
"unfettered" discretion to issue regulations concerning general working
conditions, Colorado Nurses, 751 F.2d at 1492, the Authority has long
held that the Agency has exclusive authority to make determinations
regarding alleged professional misconduct or incompetence. See, for
example, Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, Minneapolis, Minnesota, 15 FLRA 948, 952
(1984). See also Veterans Administration Medical Center, Northport, New
York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) (VA, Northport); Veterans
Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d
953 (8th Cir. 1983) (VA, Minneapolis). /7/
Although previous decisions regarding the Agency's authority to make
determinations regarding professional misconduct or incompetence
addressed 38 U.S.C. Section 4110, which is not involved in this case, we
have no basis on which to conclude that the Agency's authority to make
determinations regarding the separation of probationary employees under
38 U.S.C. Section 4106 should be treated any differently than the
Agency's authority under section 4110. Therefore, consistent with the
Agency's authority to issue regulations regarding working conditions
under 38 U.S.C. Section 4108 as well as its authority to take action
resulting from recommendations of disciplinary boards established under
38 U.S.C. Section 4110, we conclude that the Agency's authority to
separate, or take other actions affecting the employment status of,
probationary employees under 38 U.S.C. Section 4106 is exclusive.
As the Agency's and Respondent's authority under 38 U.S.C. Section
4106 to make determinations regarding the employment status of
probationary employees is exclusive, we conclude that final
determinations made pursuant to that authority are not substantively
reviewable in an unfair labor practice proceeding. To hold otherwise,
in our view, would be inconsistent with Congress' intent "to grant the
Administrator exclusive authority to determine the working conditions of
DM&S employees." Colorado Nurses, 851 F.2d at 1491. See also VA,
Minneapolis, 705 F.2d at 956 (court held that Congress intended
"disciplinary review by 'peer' boards with ultimate decision by the
Administrator to be exclusive insofar as it concerned 'inaptitude,
inefficiency, or misconduct' of DM&S professionals.").
Based on the foregoing, we hold that, in resolving unfair labor
practice complaints alleging violations of section 7116(a)(2) of the
Statute involving professional medical employees of the Department of
Veterans Affairs, a respondent's asserted lawful reasons for taking the
allegedly unlawful action must be evaluated with due regard for the
Agency's exclusive authority to determine working conditions and make
decisions regarding inaptitude, inefficiency, and misconduct under title
38. To the extent that a respondent asserts a lawful reason for taking
a disputed action, and that reason is consistent with a final
determination made pursuant to the exercise of the Agency's exclusive
authority under title 38, review of such action may be sought only
pursuant to the procedures, if any, set forth in title 38 and/or Agency
regulations issued pursuant to title 38. A final determination made
pursuant to such exclusive authority will not be substantively
reviewable in an unfair labor practice proceeding.
In Case No. 9-CA-80473, the Respondent asserts a lawful reason for
separating the Charging Party from her position, the Respondent's
separation action was taken pursuant to its exclusive authority under 38
U.S.C. Section 4106, and the determination is final. As such, the
Respondent's determination to separate the Charging Party for
abandonment of her position is not substantively reviewable in this
unfair labor practice proceeding. As the Respondent's determination to
separate the Charging Party is not substantively reviewable, the
Letterkenny framework, requiring a determination as to whether a
respondent has established by a preponderance of the evidence a
legitimate justification for its action, does not apply. Stated
otherwise, the Respondent has established a lawful reason for separating
the Charging Party from her position as a staff registered nurse. As
such, it would be meaningless to determine whether, for example, the
General Counsel established a prima facie case that the Respondent
violated the Statute. Even if the General Counsel established a prima
facie case, the General Counsel could not, as a matter of law, prove the
allegations in the complaint by a preponderance of the evidence.
Accordingly, to the extent that the complaint in Case No. 9-CA-80473
encompasses the Charging Party's separation, the complaint must be
dismissed. /8/
Although the portion of the complaint in Case No. 9-CA-80473
challenging the Respondent's separation of the Charging Party must be
dismissed, other allegations in the complaint may properly be
adjudicated. In particular, portions of the complaint in Case No.
9-CA-80473 allege that the Respondent violated the Statute by making
certain statements to the Charging Party. Similarly, the complaint in
Case No. 9-CA-80315 alleges that the Respondent violated the Statute by
impermissibly interrogating an employee and by promulgating an allegedly
improper no-solicitation, no-distribution rule. No reason is asserted,
or otherwise apparent to us, that these allegations in the two
complaints may not be processed further. We will, therefore, remand
these aspects of the complaints to the Administrative Law Judge for
action consistent with this decision.
In sum, we conclude that the Charging Party, and other professional
medical employees, are entitled to exercise rights pursuant to section
7102 of the Statute, including the right to form, join, or assist a
labor organization without fear of penalty or reprisal. Unlawful
interference with such rights constitutes a violation of section
(1) Although Case Nos. 9-CA-80315 and 9-CA-80473 were consolidated
and, as such, are both before us, the parties' arguments and motions
relate solely to Case No. 9-CA-80473.
(2) Unless otherwise noted, all dates refer to 1988.
(3) As the Authority's Order did not provide for the parties to
submit a reply to the responses, and as the Respondent has not
demonstrated sufficient reason for us to depart from the Order, the
Respondent's motion to file a reply brief to the General Counsel's
response is denied.
(4) The Respondent states that although its request for permission to
appeal the Judge's denial of its motion for summary judgment is limited
to the issue of the Authority's jurisdiction, it continues to maintain
that the amended charge in Case No. 9-CA-80473 was not timely.
(5) 38 U.S.C. Section 4104 provides, as relevant here: "There shall
be appointed by the Administrator additional personnel as the
Administrator may find necessary for the medical care of veterans, as
follows: (1) . . . nurses . . . (.)"
(6) 38 U.S.C. Section 4108 provides, in relevant part, that
"Notwithstanding any law, Executive order, or regulation, the
Administrator shall prescribe by regulation the . . . conditions of
employment . . . of . . . nurses, . . . ."
(7) VA, Northport and VA, Minneapolis addressed 38 U.S.C. Section
4110, which provides, in relevant part:
(a) The Chief Medical Director, under regulations prescribed by
the Administrator shall from time to time appoint boards to be
known as disciplinary boards, . . . to determine . . . charges of
inaptitude, inefficiency, or misconduct of any person employed in
a position provided in paragraph (1) of section 4104 of this
title.
(8) As there is no allegation in the complaint in Case No.
9-CA-80473 that the Respondent's separation of the Charging Party
violated section 7116(a)(1) independent of the alleged violation of
section 7116(a)(2), both allegations will be dismissed.
40 FLRA 283
40 FLRA NO. 29
DHHS, Pub. Health Serv. and Cent. Disease Control, NIOSH, Appalachian
Lab. for Occupational Safety and Health and AFGE, Local 3430, Case No.
3-CA-00190, 00409, 00410, 00411 (39 FLRA No. 115) (Decided April 19,
1991)
REQUEST FOR RECONSIDERATION
CORRECTION OF TYPOGRAPHICAL ERROR
The Respondent sought reconsideration of the Authority's finding
violations by the disapproval of a contractual provision negotiated
between the Union and the Appalachian Laboratory for Occupational Safety
and Health, National Institute for Occupational Safety and Health and by
directing the Centers for Disease Control to discontinue designated
smoking area at NIOSH's Morgantown, West Virginia facility.
The Authority corrected a typographical error in its original
decision, noting that it is clear that the designated smoking areas
involved in the case were eliminated on April 1, 1990, rather than April
1, 1989, as stated in the decision. As to all other arguments, the
Authority found that they constituted nothing more than disagreement
with the Authority's decision and do not demonstrate extraordinary
circumstances. The motion for reconsideration was denied.
Case Nos. 3-CA-00190, 3-CA-00409, 3-CA-00410, 3-CA-00411, (39 FLRA
No. 115 (1991))
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH SERVICE
AND CENTERS FOR DISEASE CONTROL, NATIONAL INSTITUTE FOR OCCUPATIONAL
SAFETY AND HEALTH, APPALACHIAN LABORATORY FOR OCCUPATIONAL SAFETY AND
HEALTH
(Respondents)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3430, AFL-CIO
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on a motion filed by the Public
Health Service (Respondent PHS) seeking reconsideration of our decision
in 39 FLRA No. 115. Respondent PHS also requested a stay of the
Authority's decision. Neither the General Counsel nor the Charging
Party filed an opposition to Respondent PHS's motion.
For the following reasons, we conclude that Respondent PHS has failed
to establish that extraordinary circumstances exist warranting
reconsideration of our decision. Accordingly, we will deny the motion
and request for a stay. We will, however, correct typographical errors
in our Order and Notice.
In 39 FLRA No. 115, the Authority concluded, as relevant here, that
Respondent PHS violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) by: (1)
disapproving a contractual provision negotiated between the Union and
the Appalachian Laboratory for Occupational Safety and Health, National
Institute for Occupational Safety and Health (Respondent NIOSH); and
(2) directing the Centers for Disease Control (Respondent CDC) to
discontinue designated smoking areas at Respondent NIOSH's Morgantown,
West Virginia facility. With respect to the latter point, the Authority
noted that "Respondent NIOSH complied with the directions from
higher-level management and, on April 1, 1990, discontinued the
designated smoking areas." Slip op. at 12. Among other things, the
Authority directed Respondent NIOSH to rescind its improper disapproval
of the contractual provision and to reinstate and reestablish the
designated smoking areas. The Authority also directed that a notice,
signed by the Assistant Secretary of the Public Health Service, be
posted in facilities where unit employees involved in the dispute are
located.
Respondent PHS requests that the Authority reopen and reconsider the
decision in 39 FLRA No. 115 for three reasons. First, Respondent PHS
points out that the Authority's Order and Notice require the
reinstatement of designated smoking areas which existed prior to April
1, 1989. Respondent PHS claims that as the stipulated record in this
case shows that the designated smoking areas were closed on April 1,
1990, not 1989, the decision should be reconsidered. Second, Respondent
PHS asserts that the Authority's Order does not "effectuate the purposes
and policies of the Statute()" because, by requiring the reinstitution
of smoking areas in existence on April 1, 1989, the Order deprives the
Respondent of the "benefit" of the contractual provision concerning
designated smoking areas which it improperly disapproved. Motion at 5.
Finally, Respondent PHS asserts that as the position of Assistant
Secretary, PHS, is "a highly visible one in which he must often provide
the leadership necessary to get the American people to engage in actions
which will promote good health(,)" it is inconsistent with that
official's responsibilities to "indicate publicly that he will take
action to facilitate . . . the practice of smoking . . . ." Id. at 9.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to request
reconsideration of a decision of the Authority. We conclude that
Respondent PHS has not established such extraordinary circumstances.
It is clear that, as noted in the Authority's decision, the
designated smoking areas involved in this case were eliminated on April
1, 1990. 39 FLRA No. 115, slip op. at 4, 12. The references in the
Authority's Order and Notice to April 1, 1989, resulted from
typographical errors. As such, Respondent PHS's arguments regarding the
effects of the incorrect Order and Notice provide no basis for
reconsideration. We will, however, issue a corrected Order and Notice.
Respondent PHS's remaining arguments constitute nothing more than
disagreement with the Authority's decision, however, and do not
demonstrate extraordinary circumstances. Consequently, Respondent PHS's
motion for reconsideration will be denied. For the same reasons,
Respondent PHS's request for a stay of the decision will be denied.
The motion for reconsideration and the request for a stay of the
Authority's Decision and Order in 39 FLRA No. 115 are denied. The Order
and Notice in 39 FLRA No. 115 are corrected as follows:
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 Public Health Service, shall:
1. Cease and desist from:
(a) Failing and refusing to approve the provisions in Article 31,
Section 1, of the August 14, 1989, negotiated agreement between the
Appalachian Laboratory for Occupational Safety and Health, National
Institute of Occupational Safety and Health (NIOSH) and the American
Federation of Government Employees, Local 3430, AFL-CIO (Union), which
pertain to designated smoking areas and are substantially identical to
proposals previously found to be negotiable by the Federal Labor
Relations Authority.
(b) Directing NIOSH to declare nonnegotiable Union proposals that are
substantially identical to proposals previously determined to be
negotiable by the Authority.
(c) Rescinding and/or directing the Centers for Disease Control (CDC)
and NIOSH to repudiate lawful agreements with the Union, including the
December 11, 1989, Memorandum of Understanding on designated smoking
areas.
(d) Directing CDC and NIOSH to discontinue the designated smoking
areas at the Morgantown, West Virginia, facility or in any like or
related manner, unlawfully interfering with the collective bargaining
relationship between NIOSH and the Union.
(e) In any like or related, manner, interfering with, restraining or
coercing its employees in the exercise of their rights assured them by
the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Withdraw and rescind its disapproval of Article 31, Section 1,
Smoking Policy of the August 14, 1989, negotiated agreement between
NIOSH and the Union and notify those two parties of such action in
writing.
(b) Reinstate and reestablish the designated smoking areas at the
Morgantown, West Virginia, facility that existed prior to April 1, 1990.
(c) Post at its facilities where 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, Public Health Service, and they 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.
(d) 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.
The allegations in the consolidated complaints against the
Respondents HHS, CDC, and NIOSH are dismissed.
WE WILL NOT fail and refuse to approve the provisions in Article 31,
Section 1, of the August 14, 1989, negotiated agreement between the
Appalachian Laboratory for Occupational Safety and Health, National
Institute of Occupational Safety and Health (NIOSH) and the American
Federation of Government Employees, Local 3430, AFL-CIO (Union), which
pertain to designated smoking areas and are substantially identical to
proposals previously found to be negotiable by the Federal Labor
Relations Authority.
WE WILL NOT direct the Centers for Disease Control (CDC) and NIOSH to
declare nonnegotiable Union proposals that are substantially identical
to proposals previously determined to be negotiable by the Authority.
WE WILL NOT rescind or direct CDC and NIOSH to repudiate lawful
agreements with the Union, including the December 11, 1989, MOU on
designated smoking areas.
WE WILL NOT direct CDC and NIOSH to close the designated smoking
areas at the Morgantown, West Virginia, facility or in any like or
related manner unlawfully interfere with the collective bargaining
relationship between NIOSH and the Union.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL withdraw and rescind our disapproval of Article 31, Section
1, Smoking Policy of the August 14, 1989, negotiated agreement between
NIOSH and the Union and notify those two parties of such action in
writing.
WE WILL reinstate and reestablish the designated smoking areas at the
Morgantown, West Virginia, facility which existed prior to April 1,
1990.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C., 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.
40 FLRA 275
40 FLRA NO. 28
Dept. of the Army, Army Transportation Center, Fort Eustis, Virginia
and NAGE, Local R4-6 (Shaw, Arbitrator), Case No. 0-AR-2056 (Decided
April 19, 1991)
7122(a)
ARBITRATION EXCEPTION
ATTORNEY FEES
BACK PAY ACT
ARBITRATOR'S AUTHORITY FOLLOWING MODIFICATION OF AWARD
In an earlier award, the Arbitrator sustained a grievance over a
5-day suspension, ordering management to make the grievant whole and pay
the grievant's legal fees and costs. On exceptions filed by the Agency,
the Authority concluded that the award was not contrary to
7106(a)(2)(A), but that the award of attorney fees was contrary to the
Back Pay Act. After the Authority's decision, the Union filed a motion
for attorney fees with the Arbitrator. In a supplemental award, the
Arbitrator denied the request, stating that the matter of fees would not
be pursued without an order of the Authority remanding the matter to
her.
The Authority denied the Union's exceptions, finding that the
Arbitrator properly determined that because her award of attorney fees
had been voided and set aside, she was precluded from correcting the
deficiency in her award of attorney fees. Reviewing its applicable
precedent, the Authority stated, "These cases also mean that all future
proceedings with respect to the matter set aside are barred unless the
parties jointly agree otherwise." ". . ., the matter involved could not
be reopened and reconsidered by the arbitrator absent joint approval of
the parties." ". . ., it is irrelevant that the arbitrator could
subsequently render a decision that is not deficient." The Authority
concluded, ". . ., we agree with the Arbitrator that because we had
voided and set aside her award of attorney fees, she was precluded from
reopening the matter of attorney fees to correct the deficiency in her
award of attorney fees."
Case No. 0-AR-2056
U.S. DEPARTMENT OF THE ARMY, ARMY TRANSPORTATION CENTER, FORT EUSTIS,
VIRGINIA
(Agency)
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-6
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on an exception to the
supplemental award of Arbitrator Sue Olinger Shaw 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.
In her original award, the Arbitrator sustained the grievance over a
5-day suspension. She ordered management to make the grievant whole and
pay the grievant's legal fees and costs. The Agency filed exceptions to
the award. We concluded that the award was not contrary to section
7106(a)(2)(A) of the Statute, but that the award of attorney fees was
contrary to the Back Pay Act. Accordingly, in U.S. Department of the
Army, Army Transportation Center, Fort Eustis, Virginia and National
Association of Government Employees, Local R4-6, 38 FLRA 186 (1990),
request for clarification denied, 40 FLRA No. 10 (1991), we modified the
award to strike the provision for attorney fees.
After the Authority's decision modifying the award, the Union filed a
motion for attorney fees with the Arbitrator. In a supplemental award,
the Arbitrator denied the Union's request. She stated that the matter
of fees would not be pursued without an order of the Authority remanding
the matter to her.
We conclude that the Union fails to establish that the supplemental
award is deficient and we will deny the exception.
A. Arbitrator's Original Award
The Arbitrator found that management violated the parties' collective
bargaining agreement by failing to impose discipline on the grievant
within the time limit prescribed by the agreement. The Arbitrator
sustained the grievance and directed management to revoke the 5-day
suspension of the grievant and to expunge all references to the
discipline from the grievant's personnel file. The Arbitrator also
directed management to provide the grievant with backpay for the days
she was improperly suspended and to "pay the legal fees and costs
incurred by the Grievant in the prosecution of this grievance(.)" Award
at 11.
B. The Decision in 38 FLRA 186
The Agency filed exceptions to the award. We concluded that the
Agency had failed to establish that the award was contrary to
management's right to discipline under section 7106(a)(2)(A) of the
Statute. We also concluded that the award of attorney fees was contrary
to the Back Pay Act.
With respect to the award of attorney fees, we first rejected the
Union's contention that the Arbitrator had not awarded fees, but had
merely indicated an eligibility for an award that would not be made
until after receiving a motion for attorney fees, absent settlement. We
found that the Arbitrator had specifically awarded attorney fees.
Therefore, we also rejected the Union's contention that the exception to
the award of fees was premature. Noting that the Authority had
repeatedly held that an award of attorney fees under the Back Pay Act
requires a fully articulated, reasoned decision setting forth the
specific findings supporting the determination on each pertinent
statutory requirement, we concluded that the Arbitrator had awarded
attorney fees without the proper support and that, consequently, the
award of fees was contrary to the Back Pay Act. We also noted that in
National Association of Air Traffic Specialists and Federal Aviation
Administration, Washington Flight Service Station, 21 FLRA 169, 173
(1986) (Washington Flight Service Station), the Authority explicitly
stated that in future cases, an award granting attorney fees without the
required support would be found deficient and would be set aside or
modified, as appropriate, rather than being remanded. Accordingly, we
modified the award to strike the provision for attorney fees.
C. Arbitrator's Supplemental Award
After our decision modifying the award, the Union filed a motion for
attorney fees with the Arbitrator.
The Arbitrator noted that the matter of attorney fees was raised
during the arbitration hearing and that, in her original award, the
Arbitrator ruled that attorney fees were warranted. The Arbitrator
acknowledged that this portion of the award had been struck by the
Authority and that the Authority had rejected the Union's position that
the award merely indicated an eligibility for the award of fees. Thus,
the Arbitrator stated the issue to be whether she could clarify the
award of fees after that award had been voided and set aside by the
Authority: that is, whether she could correct the deficiency in her
award of attorney fees upon the renewed request of the Union, absent a
remand order of the Authority. She stated that the issue was not
whether she had jurisdiction to consider a request for attorney fees
after the award on the merits had become final and binding.
The Arbitrator reminded the parties that at the arbitration hearing,
when the Union first requested an award of attorney fees, she inquired
of the parties as to the basis for the request. She noted that the
Union's response was a "firm assertion," in which the Agency's
representative concurred, that the Arbitrator had the authority to award
attorney fees. Award at 2. The Arbitrator stated that despite her
request for support for the authority to award attorney fees, "none was
offered." Supplemental Award at 2. She explained that, as a result, she
fashioned the award specifically to provide an award of attorney fees
"to the extent and within limits established by applicable laws and
regulations" in an effort to avoid the award of an impermissible fee.
Id. at 2-3. Although the Arbitrator was of the view that the award was
found deficient as a result of the failure of the parties to provide her
with applicable guidelines, the Arbitrator found that the Authority's
decision in Local 1749, American Federation of Government Employees and
Commander 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117 (1986)
(Laughlin Air Force Base), precluded her from correcting the deficiency
in her award without a specific remand order from the Authority.
Accordingly, the Arbitrator denied "the Union's request for a new
award of attorney fees(.)" Id. at 3. She advised that the matter of
fees would not be further pursued unless one of the parties obtained an
order from the Authority remanding the matter of the Union's request for
fees to her for an articulation of findings.
D. Union's Request for Clarification of the Decision in 38 FLRA 186
In addition to filing an exception to the Arbitrator's supplemental
award, the Union filed a request for clarification of our decision in 38
FLRA 186 "to reflect that the Arbitrator has continuing authority to
issue a decision on the fee issue." Request for Clarification at 2. In
U.S. Department of the Army, Army Transportation Center, Fort Eustis,
Virginia and National Association of Government Employees, R4-6, 40 FLRA
No. 10 (1991), we denied the request. We found that our decision needed
no clarification and that the issue of the authority of the Arbitrator
following our decision was more appropriately addressed in resolving the
Union's exception in this case.
A. Union's Exception
The Union contends that the supplemental award is deficient because,
contrary to the Arbitrator's determination, she had jurisdiction over
the motion for attorney fees.
The Union maintains that what occurred in the original award is that
"the Arbitrator 'jumped the gun' and awarded fees as part of the initial
decision." Exception at 2. The Union claims that the Arbitrator
erroneously awarded fees prior to the proper motion being filed in which
counsel would have advised the Arbitrator of the number of hours worked,
the work performed, and the rationale for awarding fees as warranted in
the interest of justice. Accordingly, the Union asserts that, in
accordance with Philadelphia Naval Shipyard and Philadelphia Metal
Trades Council, 32 FLRA 417 (1988) (Philadelphia Naval Shipyard), the
Union timely and properly moved for an award of attorney fees within a
reasonable period of time after the award became final and binding as a
result of the Authority's decision in 38 FLRA 186. Consequently, the
Union contends that the Arbitrator erroneously found that she needed a
remand order from the Authority.
The Union also maintains that this case highlights a serious problem
facing unions. The Union claims that as a result of the Arbitrator's
inability to write a legal decision, the Union will be penalized and
must bear the financial burden of failing to have the award of attorney
fees sustained. /*/
B. Agency's Opposition
The Agency contends that the Union's exception should be denied.
The Agency argues that the Union's suggestion that the Arbitrator's
award of fees was premature is contradicted by the Arbitrator's award.
The Agency maintains that the Arbitrator clearly stated that the request
for attorney fees was made at the original arbitration hearing. The
Agency claims that there were discussions concerning the fees, but that
insufficient guidance was provided to the Arbitrator.
The Agency also argues that Philadelphia Naval Shipyard does not
support the Union's exception. The Agency maintains that although
requests for fees can be made after an award becomes final under
Philadelphia Naval Shipyard, requests during the course of the
arbitration hearing are not premature and negate the right to file after
the award issues.
The Agency further argues that the Union's statements about the
problems facing unions do not warrant finding the award deficient. The
Agency claims that the Union implies that the Union has been wronged by
the Arbitrator's lack of familiarity with awarding fees. The Agency
maintains that the Union is being penalized not by the Arbitrator's lack
of familiarity, but by the parties' failure to inform the Arbitrator
concerning her obligation to issue a fully articulated decision, as the
Authority has strongly encouraged the parties to do. The Agency notes
that in her award, the Arbitrator reminded the parties that she had
requested support for her authority to award attorney fees, but "none
was offered." Opposition at 4 (quoting Arbitrator's supplemental award).
We conclude that the Union's exception provides no basis for finding
the award deficient. We find that the Arbitrator properly determined
that because her award of attorney fees had been voided and set aside by
the Authority, she was precluded from correcting the deficiency in her
award of attorney fees.
In striking the provision of an award of attorney fees in 38 FLRA
186, we noted that in Washington Flight Service Center, the Authority
explicitly stated that in future cases, an award of attorney fees
without the required support would be set aside or modified, as
appropriate, rather than remanded to the arbitrator for clarification.
38 FLRA at 191. Furthermore, in Laughlin Air Force Base, cited by the
Arbitrator, the Authority held that the failure of the parties to
provide the Arbitrator with applicable rulings of the Authority on
awards of attorney fees by arbitrators did not cure the deficiency of
the arbitrator's award of attorney fees without the required support and
did not warrant a remand of the case to the arbitrator for
clarification. 24 FLRA at 119.
Similarly, in U.S. Army Transportation Center, Ft. Eustis, Virginia
and National Association of Government Employees, Local R4-106, 34 FLRA
601 (1990) (NAGE Local R4-106), we denied the union's request for a
clarification of the Authority's decision in 33 FLRA 391 (1988), in
which the Authority had set aside, in part, an arbitration award. We
also denied the union's request that the case be remanded to the
arbitrator. In the initial decision in that case, the Authority had set
aside the first four remedies awarded by the arbitrator and denied
exceptions to the fifth remedy. In NAGE Local R4-106, the union
requested that we clarify the decision in 33 FLRA 391 to provide
instruction as to whether the case had been remanded to the arbitrator
for a more complete opinion or whether the case had been dismissed. The
union argued that the arbitrator had sufficient information to render a
decision that was not deficient. The union maintained that the
appropriate action was to set aside the award and remand it to the
arbitrator.
We found no need to clarify the Authority's decision. We held that
when the Authority "sets aside the award in whole or in part, the award
is dismissed as to the portion or portions set aside." 34 FLRA at 603.
We also found no basis to remand the award to the arbitrator. We held
that once we find an award deficient and set aside the award, "a claim
that the Arbitrator could now render a legally sufficient decision does
not establish a basis on which to remand this case to the Arbitrator."
Id. at 604.
In our view, these cases mean that when the Authority sets aside a
portion of an arbitration award, that portion of the award is voided and
vacated. These cases also mean that all future proceedings with respect
to the matter set aside are barred unless the parties jointly agree
otherwise. Therefore, the matter involved could not be reopened or
reconsidered by the arbitrator absent joint approval of the parties.
U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia and National Association of Government Employees, Local R4-19,
39 FLRA 692, 695 (1991) (once the Authority has set aside an
arbitrator's award, an arbitrator is precluded from reopening and
modifying an award unless both parties request the arbitrator to do so).
Consequently, as we indicated in NAGE Local R4-106, it is irrelevant
that the arbitrator could subsequently render a decision that is not
deficient. For these reasons, we agree with the Arbitrator that because
we had voided and set aside her award of attorney fees, she was
precluded from reopening the matter of attorney fees to correct the
deficiency in her award of attorney fees.
The Authority's decision in Philadelphia Naval Shipyard does not
provide otherwise. As noted by the Arbitrator, the issue presented was
not one of whether she had jurisdiction to consider a request for
attorney fees after an award on the merits had become final and binding
under Philadelphia Naval Shipyard; the issue was whether she could
clarify the award of fees already awarded after that award had been
voided and set aside by the Authority. We also reject the Union's claim
that the Arbitrator "jumped the gun" in awarding fees in her initial
decision. As noted by the Agency, we have expressly held that "it is
not premature to request attorney fees as part of an arbitrator's award
on the merits of a grievance." Health Care Financing Administration,
Department of Health and Human Services and American Federation of
Government Employees, Local 1923, 35 FLRA 274, 289-90 (1990). If what
the Union was attempting to do was merely to reserve the right to file a
motion for fees, it was incumbent on the Union to make that reservation
understood to the Arbitrator. Instead, the Union failed to respond to
the specific request of the Arbitrator for further guidance on what the
Arbitrator viewed to be a request for an award of fees. Therefore, this
case is in contrast to Allen Park Veterans Administration Medical Center
and American Federation of Government Employees, Local 933, 34 FLRA 1091
(1990) (Allen Park VA Medical Center), where "(n)othing in the record
indicate(d) that the Union ha( d) requested an award of attorney fees or
that the Agency has had an opportunity to respond to a request for
fees." 34 FLRA at 1105. Consequently, in Allen Park VA Medical Center,
we set aside the award of attorney fees "without prejudice to the
Arbitrator's consideration of any request for fees filed by the Union in
accordance with the time limits discussed in Philadelphia Naval Shipyard
and of any response to such a request filed by the Agency." Id.
Finally, we reject the Union's suggestion that the Union is being
penalized for the Arbitrator's inability to write a binding decision.
The Authority has repeatedly indicated that it is in the interests of
the parties to assure that their arbitrators are advised of pertinent
statutory requirements in rendering awards. See Laughlin Air Force
Base, 24 FLRA at 119. The Arbitrator specifically requested that the
Union provide her further guidance in resolving its request for attorney
fees, but "none was offered." Arbitrator's Supplemental Award at 2. In
our judgment, the Union is not so much being penalized as suffering the
consequences of its failure to provide requested guidance to the
Arbitrator that would have enabled her to issue a sustainable award.
The Union's exception is denied.
(*) The Union has requested an opportunity to present oral argument
in support of its exception. We deny the request. We find that the
Union's position is adequately presented in its exception.
40 FLRA 264
40 FLRA NO. 27
Dept. of Energy, Headquarters, Washington, D.C. and NTEU, Case No.
3-CU-00018 (Decided April 19, 1991)
7103(a)(11)
APPLICATION FOR REVIEW
CLARIFICATION OF UNIT
GM-15 ATTORNEYS
MANAGEMENT OFFICIALS
MATTERS NOT BEFORE REGIONAL DIRECTOR
SUPERVISORS OR CONFIDENTIAL EMPLOYEES
The Agency sought review of the Regional Director's (RD) Decision and
Order wherein it was found that 32 individuals encumbering GM-15 level
attorney positions in the Office of General Counsel are not management
officials within the meaning of 7103(a)(11).
The Authority concluded that the Agency had established compelling
reasons for granting the application for review, only as it concerned
the GM-15 attorneys in the Finance Section of the Assistant General
Counsel for Procurement and Finance, finding that the RD's decision that
the employees are not management officials raised a substantial question
of law or policy because of a departure from Authority precedent. In
the Authority's view, the record establishes that the Attorneys in the
Finance Section are management officials, noting in particular that they
review written products for legal sufficiency; serve as legal advisors
on task forces with Agency representatives; provide legal advice to the
General Counsel and Agency officials on finance matters; and provide
recommendations on Agency finance programs and activities. The
Authority concluded that these attorneys effectively influence courses
of action for the Agency.
As to the other attorneys at issue, the Authority concluded that no
compelling reasons exist for granting review of the RD's determination
that they are not management officials. In the Authority's view, these
attorneys serve as highly trained experts who provide legal advice and
assistance within their areas of knowledge and who represent the Agency
in various capacities, but do not formulate or effectively influence the
Agency's policy within the meaning of 7103(a)(11).
The Authority declined to consider the Agency's allegation that the
attorneys were supervisors or confidential employees, finding that the
Agency did not timely present these contentions to the Regional
Director.
Case No. 3-CU-00018
U.S. DEPARTMENT OF ENERGY HEADQUARTERS, WASHINGTON, D.C.
(Agency)
NATIONAL TREASURY EMPLOYEES UNION
(Labor Organization/Petitioner)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an application for review filed
by the Agency under section 2422.17(a) of the Authority's Rules and
Regulations. The Agency is seeking review of the Regional Director's
(RD) Decision and Order on Petition for Clarification of Unit. The RD
found that 32 individuals encumbering GM-15 level attorney positions in
the Office of the General Counsel are not management officials within
the meaning of section 7103(a)(11) of the Federal Service
Labor-Management Relations Statute (the Statute) and should be included
in the existing bargaining unit. The Petitioner (Union) filed an
opposition to the application for review.
For the reasons set forth below, we grant the application as to the
RD's finding that the GM-15 attorneys in the Finance Section of the
Office of the Assistant General Counsel for Procurement and Finance,
GC-34, are not management officials. We deny the application as to the
RD's findings concerning all other GM-15 attorneys alleged to be
management officials. We also find that the Agency's claim that certain
GM-15 attorneys are either supervisors or confidential employees under
the Statute was not timely presented to the Regional Director, in
accordance with section 2422.17(b) of the Authority's Rules and
Regulations, and is not properly before the Authority.
The Union holds certification as the exclusive representative in the
following unit:
All professional and nonprofessional employees of the Department
of Energy Headquarters in the Washington, D.C. metropolitan area
excluding employees of the Federal Energy Regulatory Commission,
confidential employees, employees engaged in Federal personnel
work in other than a purely clerical capacity, management
officials, and supervisors as defined in the order.
The Union filed the instant Clarification of Unit (CU) petition
seeking to include the following in the bargaining unit: "GM-15
Attorney-Advisor (contract) -- Carol Cowgill and all other GM-15
Attorney Advisory (sic) in the Office of the General Counsel." Authority
Exhibit No. 1(a), Attachment. /1/ The record indicates that there are
both supervisory and nonsupervisory GM-15 attorneys in the Office of the
General Counsel. The petition here concerns only the nonsupervisory
GM-15 attorneys. /2/
The RD concluded that 32 individuals encumbering GM-15 attorney
positions in eight offices within the Office of the General Counsel
should be included in the existing bargaining unit because they are not
management officials within the meaning of section 7103(a)(11) of the
Statute. /3/ The RD made no determinations with regard to the
bargaining unit eligibility of other GM-15 attorneys in four additional
General Counsel offices because no testimony was presented regarding
their duties, responsibilities, and functions. /4/ No review was sought
as to the RD's determination concerning these positions.
In reaching his determination that the incumbents in the eight
offices within the Office of the General Counsel are not management
officials, the RD relied on the Authority's decision in Department of
the Navy, Automatic Data Processing Selection Office, 7 FLRA 172 (1981)
(Navy, ADP). In that case, the Authority defined "management official"
to include those individuals who (1) create, establish or prescribe
general principles, plans or courses of action for an agency; (2)
decide upon or settle upon general principles, plans or courses of
action for an agency; or (3) bring about or obtain a result as to the
adoption of general principles, plans or courses of action for an
agency.
Applying the definition set forth in Navy, ADP to this case, the RD
found that the incumbents do not perform duties which either require or
authorize them to formulate, determine, or influence the Agency's
policies. The RD found that attorneys in the Office of the General
Counsel, including the incumbents, perform essentially the same duties,
although the GM-15 attorneys work more independently and are assigned
more complex cases with more responsibility than lower-graded attorneys.
The RD also found that the GM-15 attorneys make recommendations as to
the implementation of Agency policies, regulations, and program
activities, but that in performing these functions, they act as highly
skilled attorneys providing legal advice and recommendations concerning
their respective areas of expertise. Finally, the RD found that the
recommendations and work products of the GM-15 attorneys were reviewed
by several supervisory levels and did not extend to a point of creating,
settling upon, or bringing about the Agency's policy or course of
action.
The Agency seeks review of the RD's decision on the grounds that (1)
a substantial question of law or policy is raised because of the absence
of, or a departure from, Authority precedent; and (2) the RD's decision
on a substantial factual issue is clearly erroneous.
The Agency challenges the RD's findings that the attorneys are not
management officials. The Agency contends, based on Navy, ADP, that
"(t)here is ample testimony in the record that some of the GM-15
attorneys in this case, and potentially all of them, clearly meet one or
more of the above three criteria for the status of 'management
official'." Application for Review at 18. The Agency argues that the
attorneys are management officials because they "participate in the
formulation or determination of agency policy and influence that policy
as it is developed and refined." Id. The Agency also asserts that the
attorneys are management officials because they assist in shaping,
rather than simply implementing, the Agency's policies. The Agency
claims that the RD placed "undue stress" on the fact that the work of
the GM-15 attorneys is subject to review and being overruled. The
Agency notes that under Authority precedent set forth in Department of
Agriculture, Food and Nutrition Service, Alexandria, Virginia, 34 FLRA
143 (1990) (Agriculture, Food and Nutrition), the degree of higher level
review or approval is simply one factor to consider in determining
whether an employee is a management official, but is not the sole
factor.
The Agency also contends that certain of the attorneys are
supervisors and confidential employees under the Statute, and must be
excluded from the unit on that basis. The Agency acknowledges that the
hearing on the CU petition was based on whether or not the employees are
management officials. However, the Agency asserts that the record
contains substantial evidence concerning its contention and, as the
evidence was heard by the RD, and addressed by the Union in its
post-hearing brief, the contention is properly before the Authority at
this time.
The Union contends that the Agency has failed to submit compelling
reasons for granting review of the RD's decision under section 2422.17(
c) of the Authority's Rules and Regulations.
First, the Union argues that the RD's decision is consistent with
Authority precedent in Navy, ADP. Second, the Union argues that the RD
did not deviate from Authority precedent as set forth in Agriculture,
Food and Nutrition, because the RD based his findings on all of the
duties and responsibilities of the GM-15 attorneys, not just on the fact
that their work was subject to higher level review.
The Union also argues that the Agency is precluded by section
2422.17(b) of the Authority's Rules and Regulations from asserting, for
the first time in its application for review, that the GM-15 attorneys
are either supervisors or confidential employees under the Statute. The
Union states that "(t)here was no testimony elicited before the Regional
Director on these factual allegations." Opposition at 7. However, the
Union also sets forth arguments concerning the Agency's claim that one
employee is a confidential employee.
For the following reasons, we conclude that the Agency has
established compelling reasons within the meaning of section 2422.17(
c)(1) of the Authority's Rules and Regulations for granting the
application for review, only as it concerns the GM-15 attorneys in the
Finance Section of the Office of the Assistant General Counsel for
Procurement and Finance, GC-34. We find that the RD's decision that the
employees are not management officials raises a substantial question of
law or policy because of a departure from Authority precedent.
We further conclude, however, that no compelling reasons exist within
the meaning of section 2422.17(c) of the Authority's Rules and
Regulations for granting review of the application concerning the RD's
findings that the remaining GM-15 attorneys in dispute are not
management officials and should be included in the unit.
Finally, we conclude that the Agency's contention that certain GM-15
attorneys are supervisors or confidential employees is not properly
before the Authority.
A. Attorneys Alleged to be Management Officials
Section 7103(a)(11) of the Statute defines a management official as
"an individual employed by an agency in a position the duties and
responsibilities of which require or authorize the individual to
formulate, determine, or influence the policies of the agency." As the
Authority stated in Navy, ADP, the definition of management officials
includes those individuals who: (1) create, establish or prescribe
general principles, plans or courses of action for an agency; (2)
decide upon or settle upon general principles, plans or courses of
action for an agency; or (3) bring about or obtain a result as to the
adoption of general principles, plans or courses of action for an
agency. 7 FLRA at 177. As the Authority also stated in Navy, ADP, the
term "'to influence'" is synonymous with "'to effectively influence(,)'"
and means "to bring about or to obtain a result." Id. at 174, 175.
Except for the attorneys in the Finance Section of the Office of the
Assistant General Counsel for Procurement and Finance, GC-34, we agree
with the RD that the attorneys are not management officials.
With regard, first, to the attorneys outside the Finance Section, the
record indicates that some or all of these employees are engaged in the
following activities: providing legal advice on energy-related matters;
participating in litigation on behalf of the Agency; serving on
various committees and panels; drafting regulations and other
documents; and negotiating interagency and settlement agreements and
Agency contracts relating to patents and copyrights.
The RD found that the attorneys were not management officials because
they did not perform duties which require or authorize them to
formulate, determine, or influence the Agency's policies within the
meaning of section 7103(a)(11) of the Statute. The RD found that the
GM-15 attorneys act as highly skilled attorneys who provide legal advice
and recommendations concerning their respective areas of expertise and
that their recommendations do not extend to a point of creating,
settling upon, or bringing about the Agency's policy or course of
action.
The Agency, in its application for review, argues that the attorneys
participate in the formulation or determination of policy and influence
what the policy will be and, thus, shape the Agency's policy.
In our view, the record establishes that the attorneys do not
function as management officials. Instead, they serve as highly trained
experts who provide legal advice and assistance within their areas of
knowledge and who represent the Agency in various capacities.
For example, the attorneys render legal advice to the Agency
officials who promulgate policy and engage in litigation activities on
behalf of the Agency. In this manner, the attorneys are involved in
providing expertise and implementing, rather than shaping, the Agency's
policies. See U.S. Department of Housing and Urban Development, Boston
Regional Office, Region I, Boston, Massachusetts, 16 FLRA 38, 39 (1984)
(employees classified as GM-Attorney Advisors (General) are highly
trained and experienced professionals who handle litigation on behalf of
the agency, provide legal expertise and interpret agency policies and
are not management officials); Merit Systems Protection Board, 12 FLRA
137, 140 (1983) (employees classified as Attorney-Examiners, General
Attorneys, and Trial Attorneys (General) who provide legal advice and
make recommendations on policy issues do not influence the establishment
of agency policy, as their work is directed by a superior and their
recommendations are reviewed as those of experts or professionals rather
than those of management officials); Equal Employment Opportunity
Commission, 9 FLRA 973, 975 (1982) (employees classified as General
Attorneys, Attorney Examiners, and Attorney Advisors (Civil Rights)
found to be professionals whose actions assist in implementing, as
opposed to shaping, the agency's policies).
Similarly, as to the function of serving on committees and panels,
the record establishes that the attorneys engaged in this activity act
as resource persons providing technical expertise, rather than
formulating or effectively influencing the Agency's policy. See U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina,
12 FLRA 358, 359 (1983) (employees serving on committees act as resource
persons to those who make policy and are not management officials).
Compare, U.S. Coast Guard, Headquarters, Washington, D.C., 7 FLRA 743,
744-45 (1982) (employee who serves as chairman of international work
group and makes policy recommendations found to be a management
official).
As to the conduct of employees in drafting regulations and other
documents, the record indicates that the employees are utilizing their
technical expertise in developing regulations or preparing documents,
but that the attorneys do not establish the Agency's policy. See, for
example, Department of the Interior, U.S. Fish and Wildlife Service,
Patuxent Wildlife Research Center, Laurel, Maryland, 7 FLRA 643, 648
(1982) (employees who provide input into the agency's national hunting
regulations are simply experts or professionals rendering resource
information). Compare Headquarters, Space Division, Air Force Systems
Command, Department of the Air Force, Department of Defense, 9 FLRA 885,
888 (1982) (Space Division) (employees who have responsibility for
authoring and interpreting regulations which set forth agency policy are
management officials). Generally, signatory authority for these
documents resides at higher levels within the Agency. On the one
occasion when an employee signed off on a document, the record indicates
that the attorney did not have full responsibility for the contents of
the document.
With regard to the negotiation of settlement and other agreements,
the record establishes that the employees act as highly skilled
professionals in implementing the Agency's policy objectives. In fact,
the Agency acknowledges that employees who negotiate patent waivers, for
example, do so within guidelines and statutory constraints.
Finally, we note, as did the RD, that by virtue of their expertise,
the attorneys frequently work independently and with little direct
supervision. These facts, however, reflect that the attorneys are
highly skilled professionals but do not establish that the employees
formulate or effectively influence the Agency's policy within the
meaning of section 7103(a)(11) of the Statute. Additionally, we note,
contrary to the Agency, that the RD did not place "undue stress" on the
fact that the work of the GM-15 attorneys is subject to review and being
overruled. Rather, the RD's determinations were based on all his
findings concerning the duties and responsibilities of the attorneys.
In sum, we conclude that the RD properly found that the attorneys are
not management officials and should be included in the unit.
However, as to the attorneys in the Finance Section of the Office of
the Assistant General Counsel for Procurement and Finance, GC-34, the
record establishes that they are management officials.
The RD found that the GM-15 attorneys in the Finance Section review
written products for legal sufficiency; serve as legal advisors on task
forces with Agency representatives; provide legal advice to the General
Counsel and Agency officials on finance matters; and provide
recommendations on Agency finance programs and activities.
In its application for review, the Agency argues that the attorneys
have wide discretion to act for the General Counsel and the Agency
involving alternative fuels matters; make independent and unreviewed
decisions; draft final documents; take independent action with regard
to multi-million dollar properties; have independent signatory
authority; represent the Agency at multi-party negotiations over loan
guarantees and property closings; meet with and advise the Under
Secretary and Deputy Secretary of the Agency; substantively influence
the formulation of Agency policies by providing valued advice; and have
authority to override the role of the program and contracting officers.
The record indicates that these attorneys effectively influence
courses of action for the Agency. Thus, the attorneys have wide
discretion to act for the General Counsel and the Agency, making
independent and unreviewed decisions with regard to energy matters. In
this connection, the attorneys also have full signatory authority to
bind the Agency. By way of example, the record indicates that one of
the attorneys made decisions on behalf of the Agency with regard to the
foreclosure of a multi-million dollar barge terminal facility and also
made decisions concerning the disposal of various alternative fuel
plants. Both the decisions made and the documents subsequently prepared
were signed by the attorney on behalf of the Office of the General
Counsel. The signatory authority exercised is unlike that of the other
attorneys found not to be management officials because, in this
instance, the employee had full authority to decide the course of action
on behalf of the Agency. See Headquarters, 1947th Administrative
Support Group, U.S. Air Force, Washington, D.C., 14 FLRA 220, 228-29
(1984) (employees with signatory authority to bind the United States on
decisions made at international conferences regarding the development of
airlift procedures, in the area of budget allocation for supply and
equipment to Air National Guard units, and with regard to payments to
various organizations and programs totalling in the millions of dollars,
found to be management officials); Space Division, 9 FLRA at 888
(employees who negotiate and administer contracts with final signatory
authority to bind the agency and its resources held to be management
officials).
The record also indicates that one of the attorneys made decisions
concerning financial closings involving the sale of assets and the
disposal of property, and negotiated bankruptcy-type settlement
agreements. The attorneys also have the authority to override the
action of program offices by withholding concurrence on the particular
program matter, thus influencing the course of action the Agency takes.
In sum, we find that the attorneys in the Finance Section influence
Agency policy by creating and bringing about Agency policy
determinations. Accordingly, the GM-15 attorneys in the Finance Section
of the Office of the Assistant General Counsel for Procurement and
Finance are management officials under the Statute and should continue
to be excluded from the bargaining unit.
B. Attorneys Alleged to be Supervisors or Confidential Employees
Finally, the Agency contends that certain attorneys are supervisors
or confidential employees and should be excluded from the unit on that
basis. The Union argues that the Agency is precluded from asserting
this claim, for the first time, in its application for review.
Section 2422.17(b) of the Authority's Rules and Regulations states,
in pertinent part, that:
An application may not raise any issue or allege any facts not
timely presented to the Regional Director.
We find that the Agency did not timely present to the Regional
Director the contention that certain employees are supervisors or
confidential employees. Rather, the Agency raised this issue, for the
first time, in its application for review. Consequently, under our
Rules and Regulations, the issue is not properly before us. The
Agency's assertion that the record contains evidence to support its
contention does not establish that the issue was timely raised, as is
required by our Regulations.
We grant the application for review as to the RD's finding that the
GM-15 attorneys in the Finance Section of the Office of the Assistant
General Counsel for Procurement and Finance, GC-34, are not management
officials. We find that these GM-15 attorneys are management officials
and should continue to be excluded from the bargaining unit.
We deny the application as to the RD's findings that the other GM-15
attorneys are not management officials. We also find that the Agency's
contention that certain GM-15 attorneys are either supervisors or
confidential employees under the Statute was not timely raised before
the RD and is not properly before us for review.
Accordingly, the bargaining unit for which clarification was sought
is clarified to include the GM-15 attorneys in the following Offices of
the Assistant General Counsel: Conservation and Regulations, GC-12
(presently GC-41); Special Litigation, GC-21; General Litigation,
GC-22; Nuclear Affairs (presently named Civilian Nuclear Program),
GC-31; Natural Gas and Mineral Leasing, GC-32 (presently named Fossil
Energy, GC-14); Regulatory Interventions and Power Marketing, GC-33;
the Procurement Section of Procurement and Finance, GC-34; and Patents,
GC-42.
(1) Attorneys in the Office of the Assistant General Counsel for
General Law, GC-43, were excluded from the bargaining unit by a previous
Regional Director's determination and are not at issue in this case.
Application for Review at 2, n.1.
(2) The parties agreed that the testimony of nine GM-15 attorneys at
the hearing was representative of the duties, responsibilities, and
functions of the disputed GM-15 attorneys in their respective offices.
(3) The eight offices are: Conservation and Regulations, GC-12
(presently GC-41); Special Litigation, GC-21; General Litigation,
GC-22; Nuclear Affairs (presently named Civilian Nuclear Program),
GC-31; Natural Gas and Mineral Leasing, GC-32 (presently named Fossil
Energy, GC-14); Regulatory Interventions and Power Marketing, GC-33;
Procurement and Finance, GC-34; and Patents, GC-42.
(4) These offices are: Environment, GC-11; Legislation, GC-13;
Legal Services, GC-40; and International Affairs, GC-41.
40 FLRA 244
40 FLRA NO. 26
Defense Mapping Agency Aerospace Center, St. Louis, Missouri and
NFFE, Local 1827, Case No. 57-CA-00084 (Decided April 19, 1991)
7116(a)(1) and (5)
UNFAIR LABOR PRACTICE
UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT
CLASS A TELEPHONE SERVICE
REMEDY
STATUS QUO ANTE
The Authority adopted the Judge's conclusion that the Respondent
violated section 7116(a)(1) and (5) by unilaterally discontinuing the
Class A telephone service for unit employees without affording the Union
an opportunity to bargain over its decision to do so. The Authority
rejected the Respondent's disagreement with certain findings of fact by
the Judge and its arguments that it was not obligated to bargain over
the decision because: (1) there was no established past practice of
providing the Class A telephone service; and (2) the impact of the
change on unit employees' conditions of employment was de minimis. The
Authority also agreed with the Judge that a status quo ante remedy was
appropriate.
Case No. 57-CA-00084
DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI
(Respondent/Agency)
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
(Charging Party/Union)
Before Chairman McKee and Members Talkin and Armendariz.
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding. The Judge found that the Respondent violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally discontinuing Class A
telephone service for bargaining unit employees in its Graphic Arts
Negative Engraving Division (GAN), without affording the Union an
opportunity to bargain over the change.
The Respondent filed exceptions to the Judge's Decision and the
General Counsel filed an opposition to the 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 those rulings. Upon consideration of the Judge's
decision and the entire record, we adopt the Judge's findings,
conclusions, and recommended Order.
The Respondent expresses disagreement with certain findings of fact
by the Judge and reiterates arguments that it was not obligated to
bargain over the decision to discontinue Class A telephone service for
unit employees in GAN because: (1) there was no established past
practice of providing employees in GAN access to Class A telephone
service; (2) the impact of the change on unit employees' conditions of
employment was de minimis; and (3) the use of Class A telephone service
by GAN employees involves the technology of performing work under
section 7106(b)(1) of the Statute. For the reasons set forth in the
Judge's decision, we reject these arguments.
We also reject the Respondent's argument that bargaining over its
decision to discontinue Class A telephone service would be inconsistent
with 41 C.F.R. Section 201-38.007-6 which, according to the Respondent,
"provides that an agency should not 'increase' the level of service on
existing telephones to accommodate personal use." Exceptions at 13. The
Respondent claims, in this regard, that by "eliminating the Class A
telephone service in GAN, the Agency avoided having an increase in
telephone service merely to accommodate personal use." Id. at 14.
It is well established that "'insofar as an agency has discretion
regarding a matter affecting conditions of employment it is obligated
under the Statute to exercise that discretion through negotiations
unless precluded by regulatory or statutory provisions.'" U.S.
Department of Labor, Washington, D.C. and U.S. Department of Labor,
Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25,
36 (1990) (quoting U.S. Customs Service, 21 FLRA 1, 10 (1986)). We
conclude that 41 C.F.R. Section 201-38.007-6 did not mandate that the
Respondent eliminate the Class A telephone service of unit employees
without providing the Union with notice and an opportunity to bargain
over its decision. Instead, that determination was within the
Respondent's discretion and, accordingly, within the duty to bargain.
Compare National Treasury Employees Union and U.S. Department of the
Treasury, Internal Revenue Service, 38 FLRA 615, 618-21 (1990), petition
for review as to other matters filed sub nom. National Treasury
Employees Union v. FLRA, No. 91-1048 (D.C. Cir. Jan. 25, 1991) (proposal
that union be provided with office space to include a telephone held not
inconsistent with 41 C.F.R. Section 201-38.007-1(a) and (b));
Professional Airways Systems Specialists and U.S. Department of the
Navy, Marine Corps Air Station, Cherry Point, North Carolina, 38 FLRA
149, 152-54 (1990) (proposal that unit employees in travel status have
use of Government telephones "to take care of personal business" held
not inconsistent with 41 C.F.R. Section 201-38.007).
Based on the foregoing, we agree with the Judge that the Respondent
violated section 7116(1) and (5) of the Statute by unilaterally
discontinuing the Class A telephone service for unit employees in GAN
without affording the Union an opportunity to bargain over its decision
to do so. We also agree with the Judge, for the reasons set forth in
his decision, that a status quo ante remedy is appropriate and necessary
to effectuate the purposes and policies of the Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Defense Mapping Agency Aerospace Center, St. Louis,
Missouri, shall:
1. Cease and desist from:
(a) Removing the Class A telephone service from its Graphic Arts
Negative Engraving Division (GAN) and unilaterally changing the policy
whereby GAN employees are allowed to use such telephones to make
personal and union-related calls, without notifying the National
Federation of Federal Employees, Local 1827, the exclusive
representative of its employees, and affording it an opportunity to
bargain, to the extent consistent with law and regulations, on the
decision to make such change.
(b) In any like or related manner, interfering with, restraining or
coercing its employees in the exercise of their rights assured them by
the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Restore the Class A telephone service in the Graphic Arts
Negative Engraving Division (GAN).
(b) Reinstate the policy whereby GAN employees are allowed to use the
Class A telephones within GAN to make personal and union-related
telephone calls.
(c) Notify the National Federation of Federal Employees, Local 1827,
the exclusive representative of its employees, of any intention to
change the policy at the Graphic Arts Negative Engraving Division and,
upon request, bargain with the Union to the extent consistent with law
and regulations on any decision to make such change.
(d) Post at its facilities at 8900 S. Broadway, St. Louis, Missouri,
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 Area Director, and they 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.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Chicago Region, 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 remove the Class A telephone service from our Graphic
Arts Negative Engraving Division (GAN) and unilaterally change the
policy whereby GAN employees are allowed to use such telephones to make
personal and union-related calls, without notifying the National
Federation of Federal Employees, Local 1827, the exclusive
representative of our employees, and affording it an opportunity to
bargain, to the extent consistent with law and regulations, on the
decision to make such change.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL restore the Class A telephone service in the Graphic Arts
Negative Engraving Division (GAN).
WE WILL reinstate the policy whereby GAN employees are allowed to use
the Class A telephones within GAN to make personal and union-related
telephone calls.
WE WILL notify the National Federation of Federal Employees, Local
1827, the exclusive representative of our employees, of any intention to
change the policy at the Graphic Arts Negative Engraving Division and,
upon request, bargain with the Union to the extent consistent with law
and regulations, on any decision to make such change.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Chicago Region Federal Labor Relations Authority, whose
address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 and
whose telephone number is: (312) 353-6306.
Case No. 57-CA-00084
DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI
Respondent
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
Langston C. Davis, Esq., For the Respondent
Susanne S. Matlin, Esq., For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on February 27,
1990 by the Regional Director for Region V, Federal Labor Relations
Authority, a hearing was held before the undersigned on June 12, 1990 at
St. Louis, Missouri.
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101, et seq., (herein called the Statute).
It is based on a charge filed on November 29, 1989 by National
Federation of Federal Employees, Local 1827 (herein called the Union)
against Defense Mapping Agency Aerospace Center, St. Louis, Missouri
(herein called the Respondent).
The Complaint alleged, in substance, that on or about October 27,
1989 Respondent removed the Class A telephone service from the Graphic
Arts Negative Engraving Division (GAN) without notifying the Union, or
affording it an opportunity to negotiate as to the substance, and/or
impact and implementation of its conduct -- all constituting a refusal
to bargain and violative of section 7116(a)(1) and (5) of the Statute.
Respondent's Answer, dated March 23, 1990, admits that it changed the
Class A telephone service to Class C on October 27, 1989; that it
advised the Union that such change was non-negotiable; and denies that
it engaged in unfair labor practices as alleged.
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 /1/ were filed which have
been duly considered. /2/
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 Union has been, and still is,
the exclusive representative of a unit of all nonprofessional employees
of the Defense Mapping Agency, Aerospace Center in St. Louis, Missouri,
excluding professional employees, management officials, supervisors and
employees described in 5 U.S.C. 7112(b)(2), (6) and (7).
2. At all times since August 21, 1986 Respondent and the Union have
been parties to a written collective bargaining agreement covering the
aforesaid unit employees.
3. Respondent operates at two locations in St. Louis, 3200 S. 2nd
Street and 8900 S. Broadway which are about 50 blocks apart from each
other. The Graphic Arts (GA) division is now located at 8900 S.
Broadway. Within GA are several branches which include a plate room,
finishing area, bindery, warehouse, and a negative engraving preparation
section (GAN).
4. About 200 employees work in the GA department which occupies half
of a large warehouse building. About one-third of the building is in a
secured area at the east end, and about one-sixth of such area is
utilized by GAN. The entire length of the organization (east to west)
is somewhat over 100 yards. /3/ Within GAN are: the Division Chief,
Richard Siefert, who is the second level supervisor; four branch chiefs
(supervisors); and 12 inspectors who are part of a total of
approximately 54 bargaining unit employees.
5. Siefert's office was formerly within the GAN work area. It is
now in the unsecured area toward the middle of the building. The office
of the Chief of GA, Otto Stoessel, is located in the middle of the
secured area of the building. Stoessel is Siefert's supervisor.
6. In 1984 the GAN area was organized into GA. Previously, GAN had
the responsibility to contact and work with contractors. Its duties
required the use of commercial telephone lines, but after 1984 GA
handled such work.
7. The Kansas City Field Office of Respondent existed for over 10
years. Around 1984 GA started to get work from the Kansas City office
which was handled by the GAN division.
8. There are two types of telephone lines or service at the
facilities: Class A and Class C. The Class A line allows the caller to
phone inside or outside the agency, whereas Class C phones are utilized
only for in-house calls -- within the agency itself. Class A phones are
used generally for transacting official government business. It is
available primarily for commercial calls.
9. At GAN the Class A line was intended to be used for telephone
calls to the Kansas City Field Office. These calls were mostly made,
during the existence of that office, by 12 inspectors (unit employees)
and the supervisors at GAN. They were made to discuss manuscript
problems and specific features. In recent years, the record reflects,
the amount of calls to Kansas City dwindled and not much usage of them
was made for that purpose. The contracting office of Respondent now
uses the Class A line to call contractors.
10. The record reflects that for at least five years the Class A
phones were used, with management's sanction and permission, by
employees to make personal calls. The employees used these phones,
which were in the GAN work area and placed on the desks of supervisors,
for such purposes as calling home, arranging for car repairs, making
doctor's appointments, and the like. They also utilized this Class A
line to call the Union and contact a representative thereat. No
employee had been reprimanded by management for the continued use or any
abuse of this privilege.
11. On September 30, 1989 Defense Mapping Agency issued a General
Order disestablishing the Kansas City Field Office as of that date. The
mission and functions of that field office were thereby transferred to
the Respondent Aerospace Center in St. Louis, Missouri.
12. Under date of October 25, 1989 Elmer Hacker, President of the
Union, wrote Sharon A. McSpadden, Chief, Employee and Labor Relations of
Respondent, stating he learned that management plans to discontinue
Class A telephones in the GAN work area. Further, he described this as
an employee benefit of long-standing and requested it not be changed
until after bargaining re the change is completed. Hacker also
requested negotiations over the change.
13. On October 27, 1989 Class A line service was removed from the
GAN working area. Siefert's office was relocated outside that area to
an unsecured site about 69 yards from the GAN work area. There is a
Class A phone on Siefert's desk as well as one on the desk of his
secretary. No outgoing calls may be made from GAN on a Class A phone
any longer.
14. Prior to October 27, 1989 Respondent removed Class A telephone
lines from certain divisions in GA department. Such lines were removed
from the finishing and the photo plate sections due to waste, abuse, and
that no need existed for commercial calls to be made from these areas.
The record reflects that the existence of such Class A lines was
mission-related.
15. Up until October 27, 1989 there were two Class A lines in GAN.
During that month an employee complained that another employee spent too
long a time on that commercial phone. Siefert spoke to Chief Stoessel
re the complaint. Whereupon Stoessel asked if the continued use of that
phone could be justified. Siefert stated that since the Class A line
was for the purpose of calling Kansas City, and that office had been
closed, there was no justification for its existence in GAN.
16. McSpadden replied to the Union's request to negotiate in a
letter dated November 14, 1989 wherein she stated that there was no
reason to continue the Class A phone in GAN. She mentioned that the
said line was intended to conduct business with the Kansas City Field
Office; that since that Office was abolished, the Class A phone in GAN
was unnecessary. Further, McSpadden wrote that the telephones are
instruments used in the performance of official duties -- i.e. part of
the methods/procedures of work and thus the issue is not negotiable.
17. Record facts reflect that there are still Class A lines within
the GA department. The phones are located on the desks of supervisors
in an enclosed office and there is a Class A phone in Stoessel's office.
All of these phones are several hundred feet away from GAN's work area,
and they are locked up after hours.
18. There are also two pay telephones which are located about 69
yards from the GAN work site. One is outside Siefert's new office and
the other is nearby at the lunch or break room. There is an emergency
phone which GAN employees may use, which is about 108 yards away from
their work area. All 200 employees in GA are free to use these phones.
A Class A line was installed in December 1989 as the emergency phone.
The record indicates that GAN employees are reluctant to use the pay
phones due to the distance from their work area. Further, these phones
are in booths which are not well lit and are dirty. Apart from the fact
that the employees are compelled to be away from their GAN work area and
lose production time, the pay phones are used by many other individuals,
delivery people or contractors, and are not readily available for use.
Calls which they would make on GA Class A lines during emergencies do
not afford privacy. Contact with the Union by employees is made more
difficult in using the pay phones.
19. In a subsequent letter to Hacker, dated December 11, 1989,
McSpadden stated that management is willing to meet and conduct impact
bargaining; that Hacker should contact her if the Union agrees to such
meeting.
20. Union representative Hacker testified that management came to
the Union in December 1989 with a list of 29 phones and where they were
situated. Further, he testified he did not recall whether the Union was
offered the opportunity to negotiate it. McSpadden testified that
management met with the Union to see if it had any proposals that the
agency felt were negotiable. She further testified that the Union
proposal was to go back to status quo; that management made such
recommendations in terms of what they would be willing to provide the
Union -- some additional information re the location of phones. /4/
The central issue is whether the removal by Respondent of the Class A
telephone service at the GAN division without notification to the Union,
and affording it an opportunity to bargain concerning the change and/or
its impact and implementation, was violative of section 7116(a)( 1) and
(5) of the Statute.
While conceding that it unilaterally removed that service, Respondent
contends it was part of a change in the technology, methods and means of
performing work and only negotiable at the election of the agency.
Further, Respondent elected not to negotiate the removal. It is also
contended that any impact or reasonably foreseeable impact of removing
Class A service was de minimis. Finally, Respondent argues that since
the primary purpose for which this service was instituted --
communicating with the Kansas City Field Office -- no longer existed (in
view of the closing of such office), it was entitled to remove such
service.
At the outset, it is quite clear that GAN employees were permitted
the use of Class A phones for personal calls for at least five years
prior to October 1987. It is undisputed that the unit employees in GAN
utilized such telephones to call home, arrange for doctor's
appointments, take care of repairs to their cars, and the like. These
calls, which were known to management and supervisors, were outgoing
though not long distance in nature. As such, I conclude that such use
of Class A phone service by GAN employees constituted an established
practice at this division of Respondent's operations.
It must also be determined whether this practice was a condition of
employment at the time of the dispute herein. Basic considerations for
this determination were set forth by the Authority in Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA 235. Whether a matter involved a condition of
employment rested on the following tests: (1) if it pertained to
bargaining unit employees, and (2) the nature and extent of the effect,
of the matter proposed, on working conditions of those employees.
No question exists as to the first consideration. The practice of
allowing GAN employees to use Class A phones for personal calls involved
all bargaining unit employees in such division. This is not disputed
and thus the practice clearly pertains to bargaining unit employees.
With respect to the second test, I conclude that this practice had a
direct effect upon the working condition of these employees. Telephone
calls to the Union for either obtaining a representative or to handle a
complaint/grievance would bear on their work problems and their
conditions of employment. As reflected in the record, GAN employees
would, on occasion, use the Class A phone to call home and notify
families if the individuals were required to work overtime. At other
times this phone was used by them to call a doctor or arrange for car
repairs. Since the foregoing telephone calls could quite obviously have
an impact upon their continuation at work and the performance of their
duties, the use of such Class A service for personal calls could
necessarily affect working conditions. Accordingly, I conclude that the
past practice of allowing GAN employees to use Class A telephones for
personal calls while at work was a condition of employment and existent
on October 27, 1987. /5/
Consideration is now given to Respondent's principal contention
herein: that the telephone usage by GAN employees of Class A phones
concerned the technology, methods, and means of performing work under
section 7106(b)(1) of the Statute. Further, that Respondent might elect
to negotiate the discontinuance of this privilege but was not required
to do so.
The Authority has had occasion to discuss the use of telephones by
employees on the job as well as such usage by union officials. As to
the latter, the Authority has held that telephone use by such officials
in conducting labor-management relations activities does not involve the
technology of performing work under section 7106(b)(1) of the Statute.
Contrariwise, the use of telephones by employees in the performance of
official duties does involve such technology under that section of the
Statute. See American Federation of Government Employees, Council 214,
AFL-CIO and Department of the Air Force, Air Force Logistics Command, 31
FLRA 1259.
Turning to the case herein, note is taken that the employees who were
GAN inspectors used the Class A telephones to call the Kansas City Field
Office prior to the closing of that office on September 30, 1989. To
the extent that such employees made such calls in performing their
official duties they were, in accordance with the holdings laid down by
the Authority, engaged in activity involving the technology of
performing work under section 7106(b)(1). Therefore, any proposals by
the Union in regard to the use, or discontinued use, by the inspectors
of Class A telephones for that purpose were not negotiable.
Irrespective of whether the Kansas City Field Office remained open or
not, the use by those particular employees of such phones would have
been in the performance of their duties when they called that field
office, and Respondent would not be bound to negotiate such continued
usage by them.
The present case, however, concerns the elimination of a past
practice and a different condition of employment involving employees in
GAN. All of the unit employees at GAN, including the inspectors, had
been granted the privilege of using Class A phones for personal reasons,
albeit problems which impinge upon their work, but not to conduct agency
business. The usage of such Class A service by GAN employees to call
home, or arrange for medical and other assistance, was not related to
the existence of the Kansas City Field Office. Thus, providing GAN
employees access to such service would not relate to the technology of
performing work under section 7106(b)(1) of the Statute. Further,
unless otherwise excepted by law or regulations, Respondent would be
required to negotiate the elimination of such service with the Union.
Although not raised as a defense herein, attention is given to 41 CFR
201-38.007.1 and its applicability to this case. /6/ That section
provides, under (a) hereof, that the use of Government telephone systems
shall be limited to the conduct of official business. However, it is
also provided, under (b) thereof, that the "use of Government telephone
systems may properly be authorized as being necessary in the interest of
the Government . . ." Subdivision (c) refers to examples of
circumstances which may constitute authorized use in an accompanied
chart, and these include the following:
-- Calls to notify family, doctor, etc. when an employee is
injured on the job.
-- An employee is required to work overtime without advance
notice and calls . . . to advise his or her family of the change
in schedule or to make alternate transportation or child care
arrangements.
-- An employee makes a brief daily call . . . to speak to
spouse or minor children . . . to see how they are.
-- An employee makes brief calls to locations . . . that can be
reached only during working hours, such as a local government
agency or physicians.
-- An employee makes brief calls . . . to arrange for emergency
repairs to his or her residence or automobile.
Subdivision (d) thereof provides that personal calls that must be made
during working hours may be made over the commercial long-distance
network if consistent with the criteria in 201-38.007-1(b).
In view of the provisions in the foregoing regulation, I conclude
that the agency is not precluded from negotiating on the continued usage
by GAN employees of Class A phones for personal calls; that the said
usage does not run counter to the regulation so as to constitute a
defense herein.
It is therefore concluded that the use by GAN employees of Class A
phones for the personal reasons, as specified, was not related to the
technology, methods and means of performing work under section 7106(b)(
1) of the Statute. Accordingly, Respondent was obliged to bargain with
the Union concerning the removal of this service and the discontinuance
of the practice which was a condition of employment on October 27, 1989.
Having failed and refused to negotiate over the change, Respondent
violated section 7116(a)(1) and (5) of the Statute. /7/
The General Counsel seeks a status quo ante remedy. Such a remedy
has been deemed appropriate where, as here, management has unilaterally
changed a negotiable condition of employment. Effectuations of the
purposes and policies of the Statute require a return to the status quo
ante in order not to render meaningless the obligation to bargain. See
Department of Health and Human Services, Public Health Service, Health
Resources and Services Administration, et al., 31 FLRA 498.
Accordingly, I shall recommend that the Class A phone service at
Respondent's GAN division be restored until bargaining with the Union is
completed.
Having concluded that Respondent violated section 7116(a)(1) and (5)
by reason of the unilateral change 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 Defense Mapping Agency Aerospace Center, St.
Louis, Missouri, shall:
1. Cease and desist from:
(a) Removing the Class A telephone service from its Graphic Arts
Negative Engraving Division (GAN) and unilaterally changing the policy
whereby GAN employees are allowed to use such telephones to make
personal and union-related telephone calls, without notifying the
National Federation of Federal Employees, Local 1827, the exclusive
representative of its employees and affording it an opportunity to
bargain, to the extent consistent with law and regulations, on the
decision to make such change.
(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) Restore the Class A telephone service in the Graphic Arts
Negative Engraving Division (GAN).
(b) Reinstate the policy whereby GAN employees are allowed to use the
Class A telephones within GAN to make personal and union-related
telephone calls.
(c) Notify the National Federation of Federal Employees, Local 1827,
the exclusive representative of its employees, of any intention to
change the policy at the Graphic Arts Negative Engraving Division and,
upon request, bargain with said Union to the extent consistent with law
and regulations on any decision to make such change.
(d) Post at its facilities at 8900 S. Broadway, St. Louis, Missouri,
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 Area Director 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, Region V, Federal Labor
Relations Authority, 175 West Jackson Boulevard, Suite 1359-A, Chicago,
IL 60604, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply herewith.
Issued, Washington, D.C., October 26, 1990.
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
(1) On August 20, 1990 Respondent submitted corrected pages to its
brief concerning typographical or punctuation errors on pages 3, 5, 13
and 14 thereof. It requested that said corrected pages be substituted
for the original ones. No objection being interposed, the request is
granted, and pages 3, 5, 13 and 14 submitted on the above-named date are
substituted for those original numbered pages.
(2) General Counsel filed a Motion To Correct Record citing certain
errors in the transcript. No objection being interposed, and it
appearing that such proposed corrections are proper, the said motion is
granted as requested.
(3) See Respondent's Exhibit 6.
(4) While McSpadden testified she believed the Union rejected those
recommendations, she also stated that she was not present at the
sessions regarding the telephones. The record does not contain any
other details concerning proposals made at this session, nor is there
any evidence re negotiations as to the impact of the removal of Class A
lines from the GAN work area.
(5) Nothing in the record indicates, in any event, that Respondent
challenges this conclusion.
(6) The Authority has concluded that it is a government-wide
regulation within the meaning of section 7117 of the Statute National
Federation of Federal Employees and General Services Administration, 24
FLRA 430.
(7) In view of my conclusions that Respondent was required to bargain
re the substance of the change herein, it is not necessary to pass upon
the contention by Respondent that the impact of the change upon
employees was de minimis.
WE WILL NOT remove the Class A telephone service from our Graphic
Arts Negative Engraving Division (GAN) and unilaterally change the
policy whereby GAN employees are allowed to use such telephones to make
personal and union-related telephone calls, without notifying the
National Federation of Federal Employees, Local 1827, the exclusive
representative of our employees and affording it an opportunity to
bargain, to the extent consistent with law and regulation, on the
decision to make such change.
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 restore the Class A telephone service in the Graphic Arts
Negative Engraving Division (GAN).
WE WILL reinstate the policy whereby GAN employees are allowed to use
the Class A telephones within GAN to make personal and union-related
telephone calls.
WE WILL notify the National Federation of Federal Employees, Local
1827, the exclusive representative of our employees, of any intention to
change the policy at the Graphic Arts Negative Engraving Division and,
upon request, bargain with said Union to the extent consistent with law
and regulations on any decision to make such change.
(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, Region 5,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, IL
60604, and whose telephone number is: (312) 353-6306.
40 FLRA 236
40 FLRA NO. 25
Dept. of the Army, Army Missile Command, Redstone Arsenal, Alabama
and AFGE, Local 1858 (Griffin, Arbitrator), Case No. 0-AR-1995 (Decided
April 17, 1991)
7122(a)
ARBITRATION EXCEPTION
NON-QUALIFICATION FOR POSITION
CONFLICT WITH REGULATION
OPM TECHNICAL NOTE
5 U.S.C. 2302
A grievance was filed challenging the Agency's decision that the
grievant was not qualified for a GS-1102-5 contracting specialist
position. The Arbitrator concluded that the grievant was not qualified
for the position and denied the grievance. The Authority construed the
Union's argument that the disputed job announcement conflicts with the
OPM Technical Note and that the Arbitrator should have found that the
Agency violated 5 U.S.C. 2301 and 2302(b) by issuing that announcement
and by unfairly denying the purchasing agents a right to compete for
that position as contentions that the award is contrary to law and
regulation under section 7122(a)(1).
The Authority assumed, for the purpose of the decision, that the OPM
Technical Note constitutes a regulation within the meaning of section
7122(a)(1) and concluded that the Union had not demonstrated that, by
rejecting the Union's argument that the job announcement conflicted with
the Note, the award is deficient. The Authority concluded that the
Union had not established that the award conflicts with law or
regulation by upholding the Agency's determination that the grievant
could not qualify for the contract specialist position unless she
demonstrated that she had received 24 semester hours of formal
instruction in business discipline. In so concluding, the Authority
rejected the Union's related assertion that, by issuing and enforcing an
improper job announcement and by improperly discriminating against
purchasing agents on the basis of that announcement, the Agency violated
5 U.S.C. 2301 and 2302.
Case No. 0-AR-1995
U.S. DEPARTMENT OF THE ARMY ARMY MISSILE COMMAND REDSTONE ARSENAL,
ALABAMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1858
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Marvin A. Griffin. A grievance was filed challenging the
Agency's decision that the grievant was not qualified for a GS-1102-5
contracting specialist position. The Arbitrator concluded that the
grievant was not qualified for the position and denied the grievance.
The Union filed exceptions 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.
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 grievant, a purchasing agent, applied for a GS-1102-5 contracting
specialist position. The grievant was notified by the Agency that her
experience did not qualify her for the position. The grievant requested
that her application be re-evaluated, asserting in part that her
"experience and education" qualified her for the position. Exhibit 4 to
Union's Exceptions. The Agency, however, did not change her rating.
The Agency asserted, in this regard, that "(a) sstated in the Merit
Promotion announcement, experience as a Purchasing Agent, . . . is not
qualifying unless it was supplemented by at least 24 semester hours of
formal instruction in . . . business disciplines(.)" Exhibit 5 to
Union's Exceptions.
The grievant filed a grievance over the Agency's failure to rate her
as qualified for the disputed position and, when the grievance was not
resolved, it was submitted to arbitration. The Arbitrator framed the
issue as follows:
Did the Agency violate the Collective Bargaining Agreement (CBA)
when it determined that the Grievant's application failed to meet
the selection criteria for the position of GS-1102-5, . . . . If
answered in the affirmative, what shall the remedy be?
Id. at 1.
The Arbitrator found that it was necessary for him to interpret the
Agency's job announcement and an Office of Personnel Management (OPM)
Technical Note which set forth requirements for the contract specialist
position. With regard to the job announcement, the Arbitrator noted
that applicants for the position could qualify "through experience or by
education." Id. at 9. The "experience option," according to the
Arbitrator, required that in addition to 3 years of specialized
experience, applicants have obtained "necessary business knowledge" in
one of three ways specified in the announcement. Id. at 10. Applicants
who sought to qualify through undergraduate or graduate educations, on
the other hand, were required to demonstrate that they had completed a
degree in various business subjects or supplemented a degree with at
least 24 hours of study from among specified business disciplines. The
Arbitrator noted also that the job announcement stated that although
"(c)ombinations of successfully completed education and experience"
could be used to satisfy the qualifications requirements, "(e)xperience
as a purchasing agent, . . . is not qualifying unless it was
supplemented by formal instruction in busines disciplines . . . ." Id.
The job announcement, according to the Arbitrator, gave "a reasonably
accurate summary" of the Technical Note. Id. at 11. The Arbitrator
found that, under the Technical Note, the Agency could not "'require
applicants to possess a college degree or a specific number of credits
from a college or university(.)'" Id. (quoting Technical Note). The
Arbitrator also concluded, however, that under the Technical Note, the
Agency was "'responsible for determining the amount, scope, and mix of
training . . .'" in "business-related disciplines" which was necessary
for inservice placement. Id. at 12 (quoting Technical Note). The
Arbitrator found that the Agency's requirement that the grievant, whose
work experience was limited to clerical and technical support positions,
have completed 24 semester credit hours in business courses was
"reasonable and necessary" and consistent with OPM's Technical Note.
Id. at 13. The Arbitrator also concluded, in this regard, that the
Agency had not discriminated against purchasing agents. Rather, he
found that the Agency properly determined that such agents needed to
supplement their experience with education.
In conclusion, the Arbitrator rejected the Union's contentions that
the Agency violated the parties' agreement, the OPM Technical Note, the
job announcement, or 5 U.S.C. Sections 2301 and 2302 in rating the
grievant as unqualified for the disputed position. Accordingly, the
Arbitrator denied the grievance.
The Union contends that the Arbitrator erred in upholding the
Agency's decision that the grievant needed 24 semester hours of academic
instruction to be qualified for the contract specialist position.
According to the Union, the Agency's job announcement is in direct
conflict with the Technical Note and, if the job announcement had been
drafted properly, the grievant would have been found qualified for the
position. The Union argues, in this regard, that the grievant "sought
promotion based on experience alon(e). She did not and has never sought
promotion based on educational requirements(.)" Exceptions at 10
(emphasis in original). The Union argues that the Arbitrator erred also
in concluding that the grievant "attempted to use her . . . academic
work to qualify for the 24 semester credit hours." Id. at 3.
The Union also argues that the Arbitrator erred in failing to find
that the Agency improperly discriminated against purchasing agents. The
Union asserts that, based on a supervisor's advice, the grievant
transferred from a "promotable position" to a purchasing agent job, at a
lower rate of pay and with no opportunity for promotion, in order to
better her chances for promotion to a contract specialist position. Id.
at 18. According to the Union, the Agency's change in the
qualifications requirements occurred only after the grievant accepted
the new position.
Finally, the Union argues that the Arbitrator erred by failing to
find that the Agency committed a prohibited personnel practice. The
Union asserts first that the Agency violated 5 U.S.C. Section 2302(b)(
4), (6), (8), and (11) /1/ by "requiring 24 semester hours for
experience only qualification . . . and in denying the right of
purchasing agents to complete (sic) for promotion to contract specialist
. . . ." Id. at 22. Second, the Union argues that the Agency committed
a prohibited personnel practice by developing qualifications standards
for the disputed position which are inconsistent with OPM requirements.
/2/
We construe the Union's arguments that the disputed job announcement
conflicts with the OPM Technical Note and that the Arbitrator should
have found that the Agency violated 5 U.S.C. Sections 2301 and 2302(b)
by issuing that announcement and by unfairly denying purchasing agents a
right to compete for that position as contentions that the award is
contrary to law and regulation under section 7122(a)(1) of the Statute.
We will assume, for the purposes of this decision, that the OPM
Technical Note constitutes a regulation within the meaning of section
7122(a)(1) of the Statute. Having so assumed, however, the Union has
not demonstrated that, by rejecting the Union's argument that the job
announcement conflicted with the Note, the award is deficient.
The Technical Note states that applicants for positions such as the
one in dispute in this case may qualify on the basis of experience or
education. To qualify on the basis of "general experience, an applicant
must demonstrate that he or she has acquired . . . necessary knowledge
of business-related disciplines through work, education, or training or
any combination thereof." Exhibit 8 to Exceptions at 1. It is clear,
therefore, that an applicant may qualify for a contracting specialist
position based on experience alone. Consistent with the Technical Note,
the job announcement provided that an applicant could qualify for the
position based on 3 years of particularized experience coupled with a
"demonstration of business knowledge." Exhibit 1 to Exceptions.
It is clear, therefore, that the Agency did not require applicants to
possess a college degree or a specific number of credit hours from a
college or university to qualify for the contracting specialist
position. Instead applicants possessing certain experience could
qualify for the position without demonstrating any particular academic
credentials.
The Technical Note also provides, however, that an "applicant whose
experience is limited to procurement support or purchasing work can meet
the general experience requirements if he or she has training which
provided the business knowledge necessary for successful performance of
. . . (the) work." Exhibit 8 to Exceptions at 2. The Note further
provides that to be "creditable . . . , the knowledge gained in the
training must be equivalent to that which would have been obtained
through 24 semester hours of college level course work . . . ." Id.
With particular regard to employees such as the grievant, the Note
confirms that "(e)xperience as a purchasing agent, procurement
assistant, or in other clerical and technical support positions is not
qualifying unless it was supplemented by formal instruction . . . ." Id.
at 3.
We note that, as pointed out by the Union, prior to issuance of the
Technical Note, OPM revised the classification standards for the GS-1102
contracting series and, in a cover memo accompanying the revised
standards, OPM addressed the kind and amount of formal instruction
necessary to supplement experience as a "purchasing agent, procurement
assistant, etc., in order to meet the minimum general experience
requirements . . . ." Exhibit 9 to Exceptions. In particular, OPM
stated that "the formal instruction need not be obtained in college
courses." Id. OPM also stated, however, that such experience would
qualify for positions in the contracting series only if the applicant
could demonstrate formal instruction including "substantial coverage of
business disciplines . . . ." Id. OPM noted that the "specific
disciplines and the number of hours required may be determined by local
subject matter experts." Id.
In its letter denying the grievant's request that her qualifications
be reevaluated, the Agency noted that "experience as a Purchasing Agent,
Procurement Assistant, or in other clerical and technical support
positions is not qualifying unless it was supplemented by at least 24
semester hours of formal instruction . . . ." Exhibit 5 to Exceptions.
The Agency confirmed that the grievant's experience was "creditable(.)"
Id. However, the Agency rated the grievant as unqualified because she
had not completed the 24 semester hours of business courses from a
college or university necessary to supplement her experience.
As found by the Arbitrator, the grievant's experience was "limited to
clerical and technical support positions." Award at 13. Accordingly, the
Arbitrator found the Agency's further requirement that the grievant
demonstrate 24 hours of formal instruction in business disciplines to be
"reasonable and necessary . . . ." Id. Nothing in the Technical Note or
the previous memorandum accompanying the revised classification
standards prohibits the Agency from determining that 24 semester hours
of formal instruction is necessary to supplement experience such as the
grievant's. Indeed, OPM specifically provided that the "number of
hours" of formal instruction necessary to supplement such experience
could be determined locally. Exhibit 9 to Exceptions.
We conclude, based on the foregoing, that the Union has not
established that the award conflicts with law or regulation by upholding
the Agency's determination that the grievant could not qualify for the
contract specialist position unless she demonstrated that she had
received 24 semester hours of formal instruction in business
disciplines. In so concluding, we reject also the Union's related
assertions that, by issuing and enforcing an improper job announcement
and by improperly discriminating against purchasing agents on the basis
of that announcement, the Agency violated 5 U.S.C. Sections 2301 and
2302. See generally 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, 463 (1991) (a finding
of a prohibited personnel practice under 5 U.S.C. Section 2302(b)
requires showings that (1) the disputed personnel action violated law,
rule, or regulation; and (2) the law, rule, or regulation implements or
directly concerns merit systems principles).
As the Union has cited no provision of law prohibiting the Agency's
actions in this case, the Union has not demonstrated that the
Arbitrator's award is contrary to any laws or regulations. Accordingly,
the Union's arguments provide no basis for finding the award deficient.
Finally, the grievant's claim that she never attempted to qualify for
the position based on academic course work is misplaced. Had the
grievant possessed, or demonstrated to the Arbitrator that she
possessed, the particularized experience set forth in the job
announcement, no demonstration of formal instruction would have been
necessary to supplement that experience.
As noted previously, however, the Arbitrator confirmed the Agency's
finding that the grievant's experience was "limited to clerical and
technical support positions." Award at 13. Accordingly, consistent with
the job announcement and the Technical Note, the grievant could not
qualify based on her experience without the required course work. As
such, the Union's exception that the Arbitrator erred by examining the
grievant's course work to determine whether that work satisfied the
requirement for 24 hours of instruction provides no basis for finding
the award deficient.
The Union's exceptions are denied.
(1) 5 U.S.C. Section 2302(b) provides, as relevant here, that an
employee who has authority to take, recommend, or approve personnel
actions shall not:
(4) deceive or willfully obstruct any person with respect to such
person's right to compete for employment;
(6) grant any preference or advantage not authorized by law,
rule, or regulation to any employee or applicant for employment
(including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or
injuring the prospects of any particular person for employment;
(8) take or fail to take a personnel action with respect to any
employee or applicant . . .
(11) take or fail to take any other personnel action if the
taking of or failure to take such action violates any law, rule,
or regulation implementing, or directly concerning, the merit
system principles contained in section 2301 of this title.
(2) The Union also argues that the Agency violated Federal Personnel
Manual (FPM) chapter 271 by not following OPM's classification standards
for the contract specialist position. However, as that FPM chapter was
eliminated pursuant to FPM Letter 271-6 (Oct. 14, 1980), we will not
consider the Union's argument further.
40 FLRA 233
40 FLRA NO. 24
Dept. of the Army, Army Finance and Accounting Center, Indianapolis,
Indiana and AFGE, Local 1411, Case No. 0-AR-1763 (38 FLRA 1345) (Decided
April 16, 1991)
REQUEST FOR RECONSIDERATION
WAIVER OF TIME LIMITS
EXTRAORDINARY CIRCUMSTANCES
ATTORNEY OUT-OF-TOWN
The Authority dismissed the Union's motion for reconsideration as
untimely filed under Authority regulations. The Authority rejected the
Union's request that the Authority waive its regulations because its
representative was out of the State during a period of time before the
request for reconsideraton could have been timely filed. The Authority
noted that in addition to the representative, the Union President was
also served with the Authority decision. Therefore, the Union may not
claim that it was unaware of the decision. Moreover, the Union has not
shown that the fact that its attorney was out of town prevented him from
receiving a copy of the decision or from timely filing a motion for
reconsideration.
Case No. 0-AR-1763 (38 FLRA 1345 (1991))
U.S. DEPARTMENT OF THE ARMY ARMY FINANCE AND ACCOUNTING CENTER
INDIANAPOLIS, INDIANA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1411
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on the Union's motion for
reconsideration of the Authority's decision in 38 FLRA 1345 (1991)
(Member Talkin dissenting). That decision set aside an arbitrator's
award because section 7116(d) of the Federal Service Labor-Management
Relations Statute (the Statute) barred consideration of the grievance in
that case. The Agency filed an opposition to the Union's motion for
reconsideration, contending that the Union's motion should be dismissed
as untimely filed.
For the following reasons, we will dismiss the Union's motion as
untimely filed. /*/
The Union filed a motion for reconsideration of the Authority's
decision in 38 FLRA 1345 (1991) (Member Talkin dissenting). That
decision set aside an arbitrator's award because section 7116(d) of the
Federal Service Labor-management Relations Statute barred consideration
of the grievance in that case.
Section 2429.17 of the Authority's Rules and Regulations provides
that a motion for reconsideration must be filed "within ten (10) days
after service of the Authority's decision or order." Section 2429.27
provides that the "date of service or date served shall be the day when
the matter served is deposited in the U.S. mail or is delivered in
person."
The Authority's decision in 38 FLRA 1345 was issued on January 8,
1991 and was deposited in the U.S. mail on that date. 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, to be timely, a motion for
reconsideration had to have been postmarked by the U.S. Postal Service
or received in person at the Authority no later than January 23, 1991.
See 5 C.F.R. Section 2429.22. However, the Union's motion for
reconsideration was filed (postmarked) on February 6, 1991 and, thus, is
untimely.
The Authority may waive the time limits applicable to motions for
reconsideration in extraordinary circumstances. See 5 C.F.R. Section
2429.23(b). The Union argues that its motion for reconsideration "was
received by the Representative of (the) 'Union' on or about Tuesday 22
January 1991 . . . . (because the) Representative was out of the State
of Indiana about 7 to 19 January 1991." Motion to Reconsider at 1.
Because the Union's representative did not receive the Authority's
decision until January 22, 1991, the Union contends that its motion for
reconsideration was not due until February 6 and, therefore, is timely.
Id.
The Union's argument that its attorney was out of town at the time
that he was served with the Authority's decision does not establish
extraordinary circumstances which would warrant waiving the expired time
limit for filing a request for reconsideration. In this regard, we note
that the Union President was also served with the Authority's decision.
Therefore, the Union may not claim that it was unaware of the
Authority's decision. Moreover, the Union has not shown that the fact
that its attorney was out of town prevented him from receiving a copy of
the decision or from timely filing a motion for reconsideration. See
Internal Revenue Service, Indianapolis District and National Treasury
Employees Union, Chapter 49, 32 FLRA 1235 (1988).
Accordingly, the Union's motion for reconsideration is not properly
before us.
The Union's motion for reconsideration is dismissed.
(*) The Union filed a request for an extension of time to file a
legal memorandum in support of its motion for reconsideration. As the
Union's motion for reconsideration is untimely, we deny the Union's
request for an extension of time to file additional material. The Union
also filed a motion for an extension of time or a continuance to respond
to any future orders of the Authority. Section 2429.23(a) of the
Authority's Rules and Regulations provides for an extension of specific
time limits "for good cause shown." As the Union has not stated the
specific time limit that it requests the Authority to extend, we deny
the Union's motion.
40 FLRA 221
40 FLRA NO. 23
Dept. of the Air Force, Carswell Air Force Base, Texas and Fort Worth
Federal Firefighters Association and AFGE, Local 1364, Case No.
6-RO-00001 (Decided April 12, 1991)
APPLICATION FOR REVIEW
CERTIFICATION OF REPRESENTATIVE
FIREFIGHTERS
SEVERANCE FROM EXISTING UNIT
CRITERIA FOR APPROPRIATE UNIT
FRAGMENTATION
CONDUCT OF THE HEARING
The FWFFA seeks review of the Regional Director's Decision and Order
dismissing FWFFA's petition to represent the Activity's nonsupervisory
civilian firefighters and fire protection inspectors (firefighters) in a
unit separate from the Activity-wide unit represented by AFGE. The
Authority denied the application for review, concluding as to the
contentions:
1. Reconsideration of the Authority's policy that where an
established unit continues to be appropriate and no unusual
circumstances are presented, a petition seeking to remove certain
employees from the overall unit and to separately represent them must be
dismissed, in the interest of reducing the potential for unit
fragementation and promoting effective dealings and efficiency of agency
operations, is not warranted.
2. The FWFFA's argument that because nonsupervisory civilian
firefighters were not employed when the Activity-wide unit was
recognized, and the firefighters have not been formally recognized as
part of that unit, the Authority should find that a separate unit of
firefighters is appropriate, does not provide extraordinary
circumstances warranting review of the Authority policy.
3. The Hearing Officer's sustaining of an objection to the question,
"How many members do you have at the local 1364?" does not constitute a
prejudicial error.
The Regional Director's findings concerning AFGE's representation
activities and the community of interest among firefighters and other
civilian employees at the Activity are not clearly erroneous.
Case No. 6-RO-00001
U.S. DEPARTMENT OF THE AIR FORCE CARSWELL AIR FORCE BASE, TEXAS
(Activity)
FORT WORTH FEDERAL FIREFIGHTERS ASSOCIATION
(Petitioner)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1364
(Intervenor)
Before Chairman McKee and Members Talkin and Armendariz.
This case is before the Authority on an application for review filed
by the Fort Worth Federal Firefighters Association (FWFFA) under section
2422.17(a) of the Authority's Rules and Regulations. FWFFA seeks review
of the Regional Director's Decision and Order on Petition for
Certification of Representative. The Regional Director dismissed
FWFFA's petition to represent the Activity's nonsupervisory civilian
firefighters and fire protection inspectors (hereinafter firefighters)
in a unit separate from the Activity-wide bargaining unit represented by
AFGE. Neither the Activity nor AFGE filed an opposition to the
application for review.
For the following reasons, we deny the application for review.
II. Background and Regional Director's Decision
On May 16, 1968, the Activity granted AFGE exclusive recognition for
a bargaining unit consisting of "(a)ll nonsupervisory, nonprofessional,
appropriated fund Air Force employees serviced by the Civilian Personnel
Office . . . excluding all professional employees, management officials
and supervisors, employees described in 5 U.S.C. section
7112(b)(2)(3)(4)(6) and (7), and all employees located at Falcon Gunnery
Range at Fort Sill, Oklahoma." Regional Director's Decision at 1. The
only change in the bargaining unit since 1968 was the exclusion of
employees located at the Falcon Gunnery Range from the unit, pursuant to
a clarification of unit (Case No. 6-CU-60001).
There are approximately 700 employees in the AFGE unit who work for
various components of the Activity, which is part of the Strategic Air
Command (SAC). Nonsupervisory civilian firefighters were first employed
at the Activity in 1973 or 1974. This case arose when the FWFFA sought
to represent a bargaining unit composed solely of civilian
nonsupervisory firefighters.
The firefighters are part of the civil engineering group composed of
craft employees, such as plumbers, carpenters, and electricians, who
maintain the base. There are seven lead firefighters, four
firefighters, and two fire protection inspectors. Two supervisory
firefighters are responsible for the Operations Section and report to
the Fire Chief. The Fire Chief is under the supervision of the Civil
Engineering Commander, who reports directly to the Base Commander.
The Regional Director found that "some working conditions of the
firefighters are distinctive in relation to the rest of the civilian
workforce . . . ." Id. at 4. The Regional Director noted that "only the
operations firefighters work 24-hour shifts, and certain aspects of
their premium pay and retirement appear to be unique." Id. However, the
Regional Director also found that "elements of the firefighters'
employment are shared with other employees or employee groups" at the
Activity. Id. The Regional Director found that the firefighters use
the same central payroll department, personnel office and security
service and are in the same pay schedule and promotion system.
Additionally, the Regional Director noted that the firefighters have
"routine contact" with Activity employees. Id. The Regional Director
also noted that "while only firefighters work a 24-hour shift, numerous
other (Activity) employees work in around-the-clock operations,
requiring night shift hours, . . . ." Id. In conclusion, the Regional
Director found that the firefighters share a community of interest with
the other civilian employees of the Activity.
The Regional Director also found that the record demonstrated that
the relationship between the Activity and AFGE, as the exclusive
representative of an Activity-wide unit, "has resulted in efficient (A)
gency operations and effective dealings." Id. at 5. According to the
Regional Director, AFGE and the Activity have negotiated collective
bargaining agreements since 1971, and the 1978 agreement and the current
draft agreement addressed the specific concerns of firefighters. The
Regional director found that a separate unit of firefighters would
require the Activity to duplicate "resources and administrative working
hours" to administer two collective bargaining agreements, negotiate
separately concerning the impact of changes in conditions of employment
"for the very small group of firefighters(,)" and communicate separately
to two units. Id.
In addition, the Regional Director concluded that "(t)he record
contains no evidence of a failure to represent firefighters at (the
Activity) on the part of AFGE." Id. The Regional Director noted that
AFGE brought in firefighters to negotiate "the specific provision
addressing firefighters." Id. Further, the Regional Director noted that
firefighters have served as stewards, AFGE has pursued firefighters'
grievances, and informal resolutions of disputes have resulted from
meetings between the Fire Chief and stewards. The Regional Director
also noted that AFGE local and national representatives addressed
firefighters' concerns in meetings in May and August 1989 held with
firefighters. Finally, the Regional Director found that the
firefighters participated in negotiating a provision in "the most recent
draft agreement . . . ." Id. at 6.
Applying the standard set forth in Library of Congress, 16 FLRA 429
(1984), the Regional Director concluded that no unusual circumstances
were present to justify severing the firefighters from the Activity-wide
bargaining unit. The Regional Director rejected Petitioner's argument
that "because no nonsupervisory civilian firefighters were employed at
(the Activity) at the time of AFGE's recognition in 1968, and no formal
accretion of firefighters has ever been recognized by the Authority, the
firefighters were never part of the activity-wide bargaining unit . . .
." Regional Director's Decision at 6. The Regional Director found that
because civilian firefighters "shared a community of interest with all
nonsupervisory, nonprofessional civilian employees at (the Activity),
and because they fell under the express terms of the unit description,
(they) became part of the established bargaining unit from the time they
were hired." Id. Because the Regional Director found that the
established bargaining unit, incluidng the firefighters, continued to be
appropriate, she found it unnecessary to address whether the
firefighters constitute a separate appropriate unit. Consequently, the
Regional Director dismissed the petition.
The FWFFA argues that the Regional Director's decision and order
should be reversed under each of the grounds for review set forth in
section 2422.17(c) of the Authority's Rules and Regulations.
A. A Substantial Question of Policy
The FWFFA asserts that the policy question in this case is whether
the Authority will "place more weight" on "the right of self
determination guaranteed in 5 U.S.C. Section 7102, or the concern over
'fragmentation' of existing bargaining units(.)" Exceptions at 24.
According to the FWFFA, the Authority's concern over fragmentation has
become "too significant" and "the ultimate desire to protect the
incumbent union, . . . has in essence superseded all other concerns(.)"
Id. at 20. The FWFFA urges the Authority to reconsider this policy.
The FWFFA also asserts that Authority decisions concerning
representation issues like the one in this case are inconsistent. The
FWFFA argues that "the Authority has been erroneously applying the law"
in failing to permit firefighters to create separate units when "the
evidence, and the law, clearly show that the firefighters would be an
appropriate bargaining unit." Id. at 30. In this regard, the FWFFA
claims that the Regional Director's failure to find that the Activity's
firefighters constitute an appropriate unit is inconsistent with prior
Authority decisions. Further, the FWFFA points out that there "has
never been any formal election" in the Activity-wide bargaining unit and
that the firefighters should be "allowed the opportunity to determine
for themselves, . . . their collective bargaining representative . . .
." Id. at 5, 31.
B. Extraordinary Circumstances Which Warrant Reconsideration of
Authority Policy
The FWFFA argues that this case presents extraordinary circumstances
which require that the Authority reconsider its policy of "basically
rejecting petitions for certification and representation status where a
pre-existing (a)ctivity-wide unit is present(.)" Id. at 19-20. This
case is distinguishable from others considered by the Authority, the
FWFFA asserts, because nonsupervisory civilian firefighters were not
employed when the Activity-wide unit was recognized in 1968, and the
nonsupervisory civilian firefighters who were hired in 1973 or 1974 have
not "formally" been made a part of the Activity-wide unit. Id. at 21.
The FWFFA argues that where, as here, the employees seeking
representation were not employees at the time of the creation of the
Activity-wide unit, those employees should remain outside of that
bargaining unit, "unless some intervening event had occurred to include
them within the Unit." Id. at 25. The FWFFA asserts that no "step or
activity, formal or otherwise" has occurred to include the civilian
firefighters at (the Activity) within the bargaining unit." Id.
Consequently, the FWFFA asserts that the Authority must find a separate
bargaining unit because to do otherwise is contrary to "the basic
fundamental concern of the (S)tatute, because it absolutely denies to
this group of firefighters any opportunity to ever exercise their right
to choose a collective bargaining representative." Id. at 22.
In addition, the FWFFA argues that the unique employment of the
firefighters compared to other unit employees constitutes an
extraordinary circumstance which justifies a departure from Authority
policy. The FWFFA argues that "(t)he record is overwhelming in its
evidence of the uniqueness of the Firefighter, in terms of their jobs
(sic) requirements, their pay, their hours work, their working
conditions, their interactions with themselves vis a vis other employees
on the base, and on and on adinfinitum (sic)." Id. at 29-30. Because of
these circumstances, the FWFFA asserts that the Authority "has been
erroneously applying the law" and should find that a separate bargaining
unit of firefighters is appropriate. Id. at 30.
C. The Conduct of the Hearing
The FWFFA asserts that prejudicial error occurred when the hearing
officer sustained an objection to a question asking the president of
AFGE Local 1364, "How many members do you have at the local 1364?" Id.
at 16. According to the FWFFA, the president's testimony would
"substantiate that Local 1364 is indeed a minority Union, with
membership of a small minority of the overall bargaining unit(.)" Id.
at 18. The FWFFA asserts that the evidence "could have been extremely
critical" and would refute the Regional Director's conclusion "that AFGE
has been 'active' and 'efficient' and 'effective' in dealing with the
Activity and representing the bargaining unit, including the
firefighters." Id. at 15. The FWFFA argues that "this case should, at a
minimum, be remanded for a further hearing" to take evidence on the
question of AFGE Local 1364's membership. Id. at 18.
D. The Regional Director's Findings
The FWFFA asserts that AFGE cannot be considered effective,
efficient, or active because AFGE has not reached a collective
bargaining agreement with the Activity in more than 12 years. The FWFFA
claims that AFGE "has never processed a grievance beyond the first step
for any member of the firefighters unit." Id. at 15. The FWFFA asserts
that the Regional Director's factual conclusions concerning AFGE's
representation activities on behalf of firefighters are "overstated, and
simply not supported by the evidence(.)" Id. at 10. According to the
FWFFA, the Regional Director's findings concerning AFGE's handling of
grievances and other activities are "based upon conclusory statements of
officials of AFGE that in no way specifically identify any of the
supposed 'informal' grievances and disputes that AFGE asserts to have
resolved on behalf of the firefighters." Id. The FWFFA argues that
"there is simply virtually no evidence of any action whatsoever by AFGE
on the part of the firefighters, from 1974 until the present date." Id.
at 10-11. Finally, the FWFFA asserts that the Regional Director, based
on Authority decisions, has effectively required the FWFFA to prove "a
breach of the duty of fair representation" in order to show that AFGE
"has failed to represent the firefighters." Id. at 9 n.4.
Additionally, the FWFFA argues that firefighters have not been given
"a reasonable opportunity" to participate in AFGE union affairs. Id. at
12. The FWFFA claims that hearing testimony establishes that "meetings
were held at times when most, if not all firefighters could not attend,"
and "that notices of meetings were not received by firefighters(.)" Id.
The FWFFA also maintains that the Regional Director erred in
concluding that the firefighters have a community of interest with
employees in the Activity-wide unit. For example, the FWFFA asserts
that the Regional Director's conclusion "that 'firefighers fall under
(SAC) policies as all (Activity) employees" does not support a finding
of a community of interest between Activity employees and firefighters
because anyone who is on the base is subject to SAC policies. Id. at
13. The FWFFA also asserts that the Regional Director's decision
"grants no credence or significance to the . . . uniqueness" of the
firefighters. Id. In particular, the FWFFA asserts that the Regional
Director's finding that the firefighters are paid under the same system
as other employees is clearly erroneous. The FWFFA notes specific
statutory provisions which apply exclusively to firefighters' pay and
asserts that "statutory law itself clearly differentiates firefighters
from the other non-supervisory civilian personnel" of the Activity. Id.
at 14.
We conclude, for the reasons stated below, that no compelling reasons
exist within the meaning of section 2422.17(c) of the Authority's Rules
and Regulations for granting the application for review.
A. Reconsideration of Authority Policy Is Not Warranted
Section 7112(a)(1) of the Statute requires that the Authority
determine appropriate units that "ensure a clear and identifiable
community of interest among the employees in the unit and will promote
effective dealings with, and efficiency of the operations of, the agency
involved." To satisfy these objectives, the Authority has determined
that
where . . . an established bargaining unit continues to be
appropriate and no unusual circumstances are presented, a petition
seeking to remove certain employees from the overall unit and to
separately represent them must be dismissed, in the interest of
reducing the potential for unit fragmentation and . . . promoting
effective dealings and efficiency of agency operations.
Library of Congress, 16 FLRA 429, 431. See also Department of the Army
Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort
Carson, Colorado, 34 FLRA 30 (1989) (Fort Carson); Department of the
Navy, Naval Air Station, Point Mugu, California, 26 FLRA 620, 622 (Naval
Air Station, Point Mugu) (1987). The FWFFA has presented no arguments
which persuade us that the requirements set forth in Library of Congress
should be reconsidered or have been applied inappropriately by the
Regional Director.
The FWFFA argues that the Authority should apply the "more realistic
policy" set forth in Panama Canal Commission, 5 FLRA 104 (1981) and
Department of the Navy, Naval Station, Norfolk, Virginia, 14 FLRA 702
(1984) (Department of the Navy). Exceptions at 19. These cases,
however, concerned unrepresented firefighters. They did not present the
question of whether firefighters should be severed from an established
unit. In Panama Canal Commission, various labor organizations sought to
represent firefighters who were previously unrepresented. 5 FLRA at
115. Similarly, in Department of the Navy, unrepresented firefighters
and fire prevention employees were transferred into the activity from
another facility.
In contrast, in Library of Congress, Fort Carson, and Naval Air
Station, Point Mugu, which the FWFFA argues should be reconsidered,
petitioners sought to sever firefighters from established appropriate
bargaining units. Because this case concerns whether firefighters
should be severed from the established Activity-wide unit, we find that
the Regional Director appropriately applied Library of Congress.
We reject the FWFFA's argument that the policy expressed in Library
of Congress "has in essence superseded all other concerns, including the
basic concerns fundamental to the (S)tatute." Exceptions at 20. Rather,
we find that the standard set forth in Library of Congress is consistent
with the statutory requirement that appropriate bargaining units must
promote effective dealings with and efficiency of agencies' operations.
See 5 U.S.C. Section 7112(a)(1).
We also find that the FWFFA has not supported its argument that the
Regional Director should have found that the firefighters constitute an
appropriate bargaining unit. Under Library of Congress, the Regional
Director properly considered whether "an established bargaining unit
continues to be appropriate" and determined that the Activity-wide unit
was appropriate. Regional Director's Decision at 6. Nothing in Library
of Congress, or in any other Authority decision, requires that the
Regional Director determine whether the firefighters would also
constitute a separate appropriate unit.
B. No Extraordinary Circumstances Exist Which Warrant
Reconsideration of Authority Policy
The FWFFA argues that extraordinary circumstances mandate that the
Authority reconsider its policy of "denying petitions where an
Activity-wide bargaining unit is in place(.)" Exceptions at 20.
Primarily, the FWFFA argues that because nonsupervisory civilian
firefighters were not employed when the Activity-wide bargaining unit
was recognized in 1968, and the firefighters have not been formally
recognized as part of that unit, the Authority should find that a
separate bargaining unit of firefighters is appropriate.
The Regional Director found that the firefighters shared a community
of interest with the Activity's other civilian employees. Regional
Director's Decision at 4. In the absence of any evidence to the
contrary, we find no reason to disagree with the Regional Director's
conclusion that this community of interested existed from the time the
firefighters were hired in 1973 or 1974. See U.S. Department of
Commerce, National Oceanic and Atmospheric Administration, National
Marine Fisheries Service, Northeast Region, 24 FLRA 922 (1986) (finding
temporary intermittent observers shared a community of interest with
permanent part-time observers from the time they were hired and,
therefore, were included in the pre-existing bargaining unit from their
date of hire). We also note that although firefighters were not
specifically added to the bargaining unit description, they were covered
by the 1978 collective bargaining agreement, and Provision 27,
concerning the Fire Department, was part of that agreement. Regional
Director's Decision at 6, Activity Exhibit 2. Inasmuch as firefighters
have been included in the Activity-wide unit since their hire, the
Regional Director appropriately applied the criteria in Library of
Congress to determine whether the firefighters should be served from the
Activity-wide unit.
We note that, as asserted by FWFFA, there was no formal election in
the Activity-wide unit. In 1968, when the Activity recognized AFGE as
the exclusive representative of the Activity's civilian employees,
however, Executive Order 10988 provided that agencies could grant
exclusive recognition without formal elections. The Executive Order
required only that an employee organization establish that it had "a
substantial and stable membership of no less than 10 per centum of the
employees in the unit" and had been "designated or selected by a
majority of the employees of such unit . . . ." Executive Order 10988,
Sections 5(a) and 6(a). It is clear and undisputed that AFGE properly
was granted exclusive recognition under Executive Order 10988. See
Activity Exhibit 1 (in its letter of recognition, the Activity stated
that AFGE had "established . . . a clear majority of employees either as
members or petitioners . . . .").
We also reject the FWFFA's argument that the unique employment
conditions of the Activity's firefighters require that the Authority
reconsider its policy concerning severance from established bargaining
units and sever the firefighters from the Activity-wide unit. In this
regard, we note that the Regional Director found that "some working
conditions of the firefighters are distinctive in relation to the rest
of the civilian workforce . . . ." Regional Director's Decision at 4.
The Regional Director considered the unique aspects of firefighters'
employment -- such as premium pay to compensate the firefighters for
24-hour shifts and particular job duties. However, she found that
"elements of the firefighters' employment are shared with other
employees or employee groups" at the Activity. Id.
In its application, the FWFFA reiterates the unique aspects of
firefighters' employment and asserts that the Authority should
reconsider its policy concerning severance. In our view, the FWFFA is
merely disagreeing with the Regional Director's conclusions that the
firefighters share a community of interest with the Activity's employees
and that the Activity-wide unit remains appropriate. We conclude that
the FWFFA has not shown that extraordinary circumstances exist which
warrant reconsideration of either the Authority policy expressed in
Library of Congress or the Regional Director's decision that the
firefighters should not be severed from the Activity-wide unit.
C. The Conduct of the Hearing Did Not Constitute Prejudicial Error
At the hearing, the hearing officer sustained an objection to the
question, "How many members do you have at the local 1364?" Transcript
at 235. We conclude that this ruling did not prejudice the FWFFA's
ability to present its case. Even if it were established that
membership in AFGE Local 1364 constitutes a small percentage of the
barganing unit, as the FWFFA claims, this fact would not support the
FWFFA's argument that AFGE's representation of the firefighters
constitutes an unusual circumstance which requires that the firefighters
be severed from the unit. In other words, the size of AFGE's membership
is not indicative of the quality or extent of AFGE's representation of
the firefighters. Finally, we note that the FWFFA presented three
witnesses who testified in support of the FWFFA's assertion that AFGE
failed to represent firefighters effectively. Consequently, we reject
the FWFFA's assertion that the hearing officer's conduct constituted
prejudicial error.
D. The Regional Director's Findings Are Not Clearly Erroneous
We reject the FWFFA's assertion that the Regional Director's findings
concerning AFGE's representation activities and the community of
interest among firefighters and other civilian employees at the Activity
are clearly erroneous.
The Regional Director appropriately applied both elements of the
standard in Library of Congress. Initially, she concluded that the
Activity-wide bargaining unit continued to be appropriate. The evidence
presented at the hearing supports the Regional Director's determination
that the firefighters share elements of employment with other civilian
employees at the Activity. The FWFFA's argument that the Regional
Director erred in finding a community of interest between the
firefighters and the Activity's other civilian employees constitutes
nothing more than disagreement with the Regional Director's findings and
conclusion.
The record also supports the Regional Director's conclusion that no
unusual circumstances exist which warrant severing the firefighters from
the Activity-wide unit. In this regard, we note that we do not construe
the Regional Director's decision, or any Authority decisions, as
requiring that a petitioner establish that a union has breached its
statutory duty of fair representation in order to show that unusual
circumstances exist. See also Fort Carson, 34 FLRA at 33-35.
With regard to AFGE representation activities, the Regional Director
determined, and the record supports, that AFGE assisted firefighters in
resolving informal grievances and problems related to working
conditions. We particularly note the Regional Director's finding that
the firefighters participated in negotiations for a provision concerning
the fire department in the draft collective bargaining agreement between
AFGE and the Activity. Regional Director's Decision at 5.
We also conclude that the record does not support the FWFFA's
assertion that the firefighters have not had a reasonable opportunity to
participate in AFGE union affairs. Firefighters testified that they
have been notified of AFGE meetings and did attend, or had the
opportunity to attend. Transcript at 145-47, 173, 202. In addition, as
the Regional Director noted, AFGE held two meetings in May and August
1989 particularly for the firefighters. Regional Director's Decision at
5; Transcript at 234. Finally, the Regional Director found, and the
record supports, that some firefighters have acted as AFGE union
stewards.
Nothing in the FWFFA's application, or in the record, contradicts the
Regional Director's finding that there are no unusual circumstances
which warrant granting the FWFFA's petition. Consequently, we conclude
that the FWFFA has not established that the Regional Director's decision
is clearly erroneous.
E. Conclusions
We find that the FWFFA's application does not establish grounds to
review the Regional Director's decision and order. The FWFFA has not
raised a substantial question of policy or extraordinary circumstances
which warrant reconsideration of Authority policy. Further, the FWFFA
has not established that the conduct of the hearing was prejudicial or
that the Regional Director's findings are clearly erroneous.
Accordingly, we will dismiss the petition for review.
The application for review of the Regional Director's decision and
order is denied.
40 FLRA 214
40 FLRA NO. 22
Dept. of the Air Force, Headquarters Oklahoma City Air Logistics
Center, Tinker Air Force Base, Oklahoma and AFGE, Local 916, (Neas,
Arbitrator) Case No. 0-AR-2030 (Decided April 12, 1991)
7122(a)
ARBITRATION EXCEPTION
FAILURE TO DRAW ESSENCE
REHABILITATION ACT
The Arbitrator dismissed a grievance over a 1-day suspension because
he found that it was untimely filed at the second step of the grievance
procedure under the agreement. The Authority construed the Union's
arguments with respect to the interpretation and application of various
provisions of the agreement as assertions that the award fails to draw
its essence from the agreement, and found that the Union had not
demonstrated that the award was deficient under any of the tests for
this allegation.
As to the Union's assertion that the award is contrary to the
Rehabilitation Act, the Authority concluded that the Federal Government
is not an employer covered by the ADA and that, consequently, no basis
is provided for finding the award is contrary to the ADA.
Case No. 0-AR-2030
U.S. DEPARTMENT OF THE AIR FORCE HEADQUARTERS OKLAHOMA CITY AIR
LOGISTICS CENTER TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 916
(Union)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on exceptions to the award of
Arbitrator Russell C. Neas 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 over a 1-day suspension. The
Arbitrator dismissed the grievance because he found that it was untimely
filed at the second step of the grievance procedure under the parties'
collective bargaining agreement. For the following reasons, we conclude
that the Union's exceptions provide no basis for finding the award
deficient, and we will deny the exceptions.
On September 27, 1988, the grievant received a notice of the Agency's
decision to suspend him for 1 day based upon the Agency's conclusion
that the grievant had been absent without leave for 45 minutes on July
11, 1988. The notice included specific guidance to the grievant on the
filing of a formal grievance over the suspension in accordance with the
parties' Master Labor Agreement (MLA). Article 5, Section 5.07(f) of
the agreement provides that an employee who is suspended may "file a
written grievance at Step 2 of the Negotiated Grievance Procedure
contesting the action within 20 calendar days of receipt of the
disciplinary action." Accordingly, the notice advised the grievant,
among other things, that "(i)f you consider this action improper, you
have the right to grieve under the negotiated grievance procedure
contained in Article 6, Section 6.07, paragraph b, of the 1986 AFLC/AFGE
Master Labor Agreement, within 20 calendar days of the effective date of
this suspension. The formal written grievance must be submitted on the
Standard Grievance Form, AFLC Form 913, to The Directorate of
Distribution, Building 1, Room 204." Award at 6 (quoting Notice of
Decision to Suspend for One Day).
The applicable language of Article 6, Section 6.07(b) states:
(1) Grievances over discipline taken under Article 5 . . . not
resolved at Step 1 may be processed by the employee or a
representative designated by the Union, with the Directorate,
Staff Office, Tenant Commander . . . or equivalent level or their
designee of his/her organization.
Id.
The grievant grieved the suspension by signing a standard grievance
form and submitting it to his immediate supervisor on October 14, 1988.
After examining the grievance, the supervisor returned the grievance
form to the grievant because she was not authorized to process step 2
grievances under the parties' MLA. The supervisor offered to arrange
for the grievant to get assistance and Union representation from the
designated steward for the grievant's work area, but the grievant
declined and requested that he be represented by a different steward
whom he specifically named.
The representative designated by the grievant wrote and signed the
step 2 grievance on November 21, 1988. On that same day, the step 2
grievance was received in the Directorate of Distribution. The Agency
took the position that the grievance was untimely and also denied the
grievance on the merits. The matter was not resolved and was submitted
to arbitration.
The parties did not agree upon the issues to be decided by the
Arbitrator. The Arbitrator framed the issues as:
Issue No. 1: Is the grievance arbitrable?
Issue No. 2: Was the one day suspension of (the grievant) for
jsut cause? If not, what shall be the remedy?
Id. at 5.
The Arbitrator noted that the Union would not agree that there was a
threshold issue of arbitrability. Rather, the Union took the position
before the Arbitrator that the grievance was timely filed when the
grievant submitted it to his immediate supervisor. The Union argued
that there was no contractual requirement that step 2 grievances be
filed with the Directorate of Distribution. The Union further contended
that any delays in processing the grievance were caused by the immediate
supervisor because she was responsible for contacting the Union to have
a steward assigned and for arranging a meeting and she failed to carry
out these asserted duties in a timely manner.
The Arbitrator stated that arbitrators universally agree that
"contractual grievance procedure time limits should be strictly
enforced. Exceptions to the general rule are made only when there are
extreme mitigating circumstances or there has been a history of lax or
nonuniform enforcement." Id. at 6. The Arbitrator concluded that there
was "no persuasive evidence that either of those conditions were present
in (the grievant's) case." Id.
The Arbitrator determined that he was bound by the relevant clause in
Article 5, Section 5.07(f) of the MLA which set forth the 20-day time
limit for filing grievances at step 2 of the grievance procedure. The
Arbitrator noted that it was undisputed that the grievance was submitted
to the grievant's immediate supervisor within the time limit and that it
was over the time limit when received at the Directorate. The
Arbitrator concluded that his "mandate in this case is to determine
whether the initial submission of the grievance to (the grievant's
immediate supervisor) was in compliance with the MLA". Id.
As an initial matter, the Arbitrator rejected the Union's argument
that the delay in processing the grievance could be attributed to the
grievant's supervisor's delay in arranging for the steward requested by
the grievant to meet with the grievant. The Arbitrator noted that the
grievant's supervisor offered to arrange for the grievant to meet with
the steward assigned to his area. The Arbitrator concluded that "in all
probability there would have been no delay except for (the grievant's)
desire to change Stewards . . . . Had (the grievant) consulted with a
Steward in the beginning the procedural defect probably would not have
occurred. Competent represetation was available to him from the start,
but he declined to accept it(.)" Id. at 7. The Arbitrator pointed out
that had the grievance not been returned, the grievant "could have
presumed that his grievance had been timely and properly filed . . . .
However, when it was returned to him without any Agency action, it must
have occurred to him that he needed to resubmit the form to someone."
Id.
The Arbitrator noted that even if the grievant did not read or was
free to ignore the instructions in the notice of decision to suspend,
"that would not have removed his obligation to comply with the MLA." Id.
The Arbitrator concluded that although paragraph b of Article 6,
Section 6.07 of the agreement contains no requirement that a grievance
be filed at the specific location referenced in the notice, it does
require that a grievance be filed at the Directorate level or its
equivalent. The Arbitrator determined that "(t)hat provision obviously
excludes a first level foreman as an appropriate recipient of a formal
Step 2 grievance(.)" Id. at 8.
As his award, the Arbitrator concluded that the grievance was not
arbitrable and, based upon that determination, that he could make no
decision on the merits of the grievance.
The Union contends that the award is contrary to various provisions
of the parties' MLA, the Americans with Disabilities Act of 1990 (ADA),
and Agency policy.
The Union contends that under provisions of the MLA, the grievance
was timely because the longstanding practice of the parties is for
employees to fill out part I of the standard grievance form and give
this to their first-level supervisor within the 20-day period and
because the grievant should not be faulted for management's failure to
allow him his chosen representative in a timely manner. The Union also
argues that the issue of timeliness could not be considered because the
Union had not mutually agreed to that issue as required under Article 7
of the MLA.
The Union also contends that the award is contrary to the ADA, Pub.
L. No. 101-336, 104 Stat. 327 (1990). The Union argues that the
grievant is mentally and physically handicapped within the meaning of
the ADA and cannot be expected to comprehend the time requirements for
filing grievances.
The Union further contends that the award is contrary to Agency
policy because such policy states that "(t)here are no contractual time
limits that would render a grievance untimely because of the delay in
receiving a letter of designation and you cannot unilaterally close a
grievance because you have not received a letter of designation."
Exceptions at 5 (quoting September 19, 1988 letter from Chief, Labor
Relations on the subject of Union steward list).
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute. The Union has not established that the
award is contrary to any law, rule, or regulation, or that the award is
deficient on other grounds similar to those applied by Federal courts in
private sector labor relations cases.
We construe the Union's arguments with respect to the interpretation
and application of various provisions of the MLA as assertions that the
award fails to draw its essence from the parties' collective bargaining
agreement. In order to demonstrate that an award fails to draw its
essence from the agreement, the Union 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
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. See U.S. Department of the Treasury, U.S. Customs Service,
New York, New York and National Treasury Employees Union, 39 FLRA 278,
284 (1991).
The Union has not demonstrated that the award is deficient under any
of these tests. The Arbitrator addressed pertinent provisions of the
parties' agreement and concluded that the grievance was not arbitrable
under the agreement because it was not timely filed at the appropriate
step of the negotiated grievance procedure. We conclude that the
Union's assertions amount to nothing more than disagreement with the
Arbitrator's interpretation of the procedural requirements of the
collective bargaining agreement and the application of those
requirements to the circumstances of the grievance before him. The
Authority has consistently held that disagreement with an arbitrator's
determinations concerning the procedural arbitrability of a grievance
generally provides no basis for finding an award deficient. See U.S.
Defense Mapping Agency Aerospace Center, St. Louis, Missouri and
National Federation of Federal Employees, Local 1827, 35 FLRA 973, 977
(1990). Accordingly, we will deny this exception.
We conclude that the Federal Government is not an employer covered by
the ADA and that, consequently, no basis is provided for finding the
award contrary to the ADA. Section 101(5)(B)(i) of the Act provides as
follows:
The term "employer" does not include --
(i) the United States . . . .
104 Stat. at 330. However, because the Federal Government is covered by
the Rehabilitation Act of 1973, 29 U.S.C. Section 791, on which the
employment provisions of the ADA are based, we will construe the Union's
exception as an assertion that the award is contrary to the
Rehabilitation Act.
We conclude that the Union fails to establish that the award is
contrary to the Rehabilitation Act. Although the Union suggests that
the award is deficient because the grievant was a handicapped employee,
who, as a result of his handicap, could not comprehend the 20-day filing
period requirement for his grievance, the Union provides no support for
its assertion and none is apparent.
The Rehabilitation Act imposes a duty on Federal agencies to make
reasonable accommodations to the limitations of their qualified
handicapped employees unless they can show that to do so would impose
undue hardship on their operations. See Rodgers v. Lehman, 869 F.2d
253, 258 (4th Cir. 1989). The Union fails to establish that the
grievant is a qualified handicapped employee, within the meaning of the
Act, who is entitled to reasonable accommodation. Even assuming that
the grievant is a qualified handicapped employee, the Union fails to
specify what reasonable accommodation the grievant was entitled to that
the Agency failed to provide. In this respect, we note the Arbitrator's
findings that the grievant's supervisor offered to provide Union
representation by the assigned steward, but that the grievant "declined
to accept it and therefore must assume the responsibility for the
results." Award at 7. Consequently, we find no basis in the Act for
excusing the grievant's untimely filing of the grievance. Accordingly,
we will deny this exception.
We also conclude that the Union fails to establish that the September
1988 letter concerning steward lists provides a basis for finding the
award contrary to Agency policy. As quoted by the Union, the policy
letter applies only to grievances in which there has been a delay in
receiving a letter of designation of representative. The Union does not
establish, and it is not otherwise apparent, that the policy letter
addresses the situation in this case in which the step 2 grievance was
not received by the Directorate of Distribution within the 20-day filing
period as required under the MLA. Thus, there is no evidence that the
delay was caused by the failure to timely process a letter of
designation. Rather, as outline in the September 1988 letter, it is the
grievant who must request the Union to designate another steward to
represent him in the grievance if the grievant does not wish the
designated steward to represent him. Exceptions, Exh. 3. This
buttresses the Arbitrator's finding that the grievant was responsible
for the delay. Accordingly, we will deny the exception.
The Union's exceptions are denied.
40 FLRA 203
40 FLRA NO. 21
AFGE, Local 3013 and Dept. of Defense, National Guard Bureau, Maine
Air National Guard, Augusta, Maine, Case No. 0-NG-1832 (Decided April
12, 1991)
7105(9)(2)(E)
7106(a)(2)(C)
NEGOTIABILITY DETERMINATION
MILITARY ASPECTS OF CIVILIAN TECHNICIANS
RIGHT TO SELECT
Proposal 1 provides that one certification list which may or may not
be mixed will be submitted to the selecting official. Proposal 2
provides that the selecting official is free to choose or not to choose
any individual from the certification list. The Authority concluded
that although the proposals permit the Agency to consider or select
military technicians, they do not affect, in any way, the Agency's right
to do so. Therefore, the proposals relate principally to the rating,
ranking, and selection of unit employees, matters which clearly affect
working conditions of unit employees. As the Agency cited no law, rule,
or regulation which the proposals allegedly are inconsistent with, and
no such inconsistency is apparent, the proposals are negotiable.
Proposal 3 provides that all applicants will be evaluated using
identical criteria. Noting that the proposal would require that
military technicians be evaluated for unit positions under the identical
criteria used to evaluate civilian technicians, the Authority concluded
that the proposal directly affects and substantively limits the Agency's
discretion to establish qualifications for advancement of military
technicians and the criteria for promotion or placement of military
technicians. The Authority noted its precedent that the military side
of the National Guard lies wholly outside of the collective bargaining
realm. Therefore, this proposal does not concern the conditions of
employment of unit employees and is nonnegotiable insofar as it applies
to evaluation of military technicians.
Proposal 4 provides that it is recognized that in the interest of
effective and efficient government operations that the most highly
qualified individuals should be selected for employment. The Authority
found that the proposal does not require the Agency to select the most
highly qualified individuals and that it does not appear that the
proposal violates law or regulation. Accordingly, it is negotiable.
Proposal 5 provides that with the exception that Technicians and
AGR's are now allowed to apply for the same position, the existing state
merit promotion and placement plan will be followed. The Authority
found that the proposal does not go to military personnel and it does
not appear that it violates law or regulation. Accordingly, it is
negotiable.
Proposal 6 requires the Agency to decide how a particular vacancy
will be filled and to post a single position announcement which comports
with that decision. The Authority concluded that the proposal would
deprive the Agency of its right concurrently to solicit candidates from
all sources, thereby directly interfering with the right to select under
7106(a)(2)(C).
Case No. 0-NG-1832
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3013
(Union)
U.S. DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU MAINE AIR NATIONAL
GUARD AUGUSTA, MAINE
(Agency)
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 six
proposals.
Proposal 1 requires that one certification list, which may or may not
include both military and civilian candidates for a vacant position,
will be submitted to a selecting official. Proposal 2 allows a
selecting official to choose or refran from choosing any candidate from
the certification list referred to in Proposal 1. Proposal 3 requires
that all applicants, both military and civilian, be evaluated using
identical criteria. Proposal 4 states that the most highly qualified
individuals should be selected for vacant positions. Proposal 5 requires
the Agency to continue to apply the negotiated placement plan to
civilian technicians even though Active Guard and Reserves (AGRs) are
now permitted to apply for the same vacant positions. Proposal 6
requires the Agency to decide how a particular vacancy will be filled
and to post a single position announcement which comports with that
decision.
For the following reasons, we find that Proposals 1, 2, 4, and 5 are
negotiable and that Proposals 3 and 6 are nonnegotiable.
The dispute in this case resulted from the Agency's decision to
implement paragraph 2-5f of Air National Guard Regulation (ANGR) 35-03,
issued by the National Guard Bureau on June 1, 1989. Paragraph 2-5f
states, in pertinent part, that "(i)n order to enhance career
progression, full-time military duty personnel and (civilian)
technicians must be considered concurrently for the same Category 2
position." Category 2 positions are positions that may be filled by
either civilian technicians or full-time military personnel.
Proposal 1
One certification list which may or may not be mixed will be
submitted to the selecting official.
Proposal 2
(The) Selecting official is free to choose or not to choose any
individual from the certification list.
A. Positions of the Parties
The Agency claims that Proposal 1 "provides for the mixing of
military applicants with (civilian) technicians on placement or
certification lists(.)" Statement of Position at 1. The Agency contends
that because Proposal 2 would encompass the selection of military
personnel, the Union "is attempting to negotiate military placement
policies as opposed to (civilian) technician placement policies which
are bargainable under the Statute." Id. (emphasis in original). The
Agency argues that Proposals 1 and 2 are nonnegotiable because they
encompass military policy and, therefore, do not concern conditions of
employment under the Statute.
The Union states that the "intent of (Proposal 1) is to provide
reasonable protection for bargaining unit employees in the course of
their consideration for selection to vacancies." Reply Brief at 1. The
Union contends that Proposal 1 does not require that military and
civilian candidates be "mixed" on the certification list but, rather,
provides that they may be "mixed" on the list at the discretion of the
Agency. The Union notes that the Agency proposed to include both
military and civilians on the certification list. The Union asserts
that although the list may include both civilian and military
candidates, "the (U)nion's proposal is directed only to bargaining unit
employees." Id.
The Union contends that Proposal 2 gives the selecting official
unfettered discretion to make selections. In other words, the Union
claims that the selecting official is free to select or not to select an
individual from the certification list. The Union claims that Proposal
2 does not address the selection of military personnel or military
placement policies. Further, the Union claims that the Agency "simply
misreads the proposal; the proposal addresses the certification list,
not the 'mix' of candidates on the list." Reply Brief at 10.
B. Analysis and Conclusions
In deciding whether a matter involves a condition of employment of
bargaining unit employees, the Authority considers whether: (1) the
matter pertains to bargaining unit employees; and (2) there is a direct
connection between the matter at issue and the work situation or
employment relationship of bargaining unit employees. See U.S.
Department of the Army, Aviation Systems Command, St. Louis, Missouri
and National Federation of Federal Employees, Local 405, 36 FLRA 418,
421-22 (1990); Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA 235, 237 (1986).
The plain language of Proposal 1 requires that one certification list
be submitted to a selecting official. The Union states that Proposal 1
is intended to encompass only bargaining unit employees and that the
Agency has the discretion to include, but is not required by the
proposal to include, military candidates on the certification list. As
the Union's statement is consistent with the plain wording of the
provision, we adopt it for the purposes of this decision.
Similarly, as plainly worded, Proposal 2 provides only that a
selecting official may, or may not, choose any candidate on the
certification list. The Union confirms, in this regard, that the
certification list in Proposal 2 is "the list referred to in Proposal
1." Reply Brief at 2. Proposal 2 does not refer to military technicians
and, as noted above, Proposal 1 would not require the Agency to include
military technicians on the certification list.
In our view, Proposals 1 and 2 relate to the rating, ranking and
selection of bargaining unit employees for vacant positions. Although
the proposals permit the Agency to consider or select military
technicians, they do not affect, in any way, the Agency's right to do
so. Therefore, as Proposals 1 and 2 relate principally to the rating,
ranking, and selection of unit employees, matters which clearly affect
working conditions of unit employees, we conclude that the proposals
concern conditions of employment of unit employees under the Statute.
The Agency has cited no law, rule or regulation with which the
proposals allegedly are inconsistent, and no such inconsistency is
apparent to us. Accordingly, we conclude that Proposals 1 and 2 are
negotiable.
All applicants will be evaluated using identical criteria.
A. Positions of the Parties
The Agency alleges that because this proposal "would require that
both military and (civilian) technician applicant(s) be evaluated using
the same experience factors, qualifications, and other ranking
criteria(,)" the proposal would require bargaining over military
placement policy. Statement of Position at 1-2. The Agency also
asserts that the proposal directly interferes with management's right to
assign work by limiting the Agency's discretion to determine the skills
and qualifications necessary to perform work.
The Union claims that the intention of the proposal is to "require
that all candidates have virtually equal and fair chances to compete."
Reply Brief at 11. Further, the Union claims that all positions
addressed by the proposal are bargaining unit positions. The Union
asserts that the proposal "requires competition on the same general
basis so as to ameliorate any advantage to non-unit employees." Id.
B. Analysis and Conclusions
The Authority has consistently held that matters pertaining to the
military aspects of civilian technician employment do not concern
conditions of employment within the meaning of the Statute. See, for
example, American Federation of Government Employees, AFL-CIO, Local
3006 and the Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA
816, 820 (1990). Further, the U.S. Court of Appeals for the District of
Columbia Circuit concluded in National Federation of Federal Employees,
Local 1623 v. Federal Labor Relations Authority, 852 F.2d 1349, 1353
(D.C. Cir. 1988) (NFFE) that:
The combined effect of the Labor-Management Act and the
Technicians Act is to give National Guard technicians a limited
right to negotiate over conditions of employment. But that right
is circumscribed by the reality that a technician's military
status will often impinge on his civilian status and that, when
this happens, the needs of the military must prevail.
The court stated, in this regard, that "(a) substantial line of
decisions by the Authority holds that matters involving the military
status of Guard technicians are 'specifically provided for' by the
Technicians Act and thus are not bargainable 'conditions of
employment.'" Id. at 1351. The court also stated that "the military
enjoys special status and its decisions involving the organization of
security forces are especially shielded from outside interference." Id.
at 1353.
Proposal 3 would require that military technicians be evaluated for
bargaining unit positions under the identical criteria used to evaluate
civilian technicians. Unlike the proposal in NFFE, the proposal does
not concern the military aspects of civilian technicians employment.
Nevertheless, it directly affects and substantively limits the Agency's
discretion to establish qualifications for advancement of military
technicians and the criteria for promotion or placement of military
technicians.
As noted by the court in NFFE, "the military side of the National
Guard lies wholly outside of the collective bargaining realm." 852 F.2d
at 1353. Insofar as Proposal 3 seeks to establish criteria by which
military technicians are evaluated for positions, the proposal
encompasses matters solely within the purview of the military. We
conclude, therefore, that Proposal 3 does not concern conditions of
employment of bargaining unit employees and is nonnegotiable insofar as
it applies to evaluation of military technicians. See, for example,
Delaware Chapter, Association of Civilian Technicians and Delaware
National Guard, 28 FLRA 1030, 1035-36 (1987). In view of our decision,
we do not address the Agency's argument that the proposal also is
nonnegotiable because it violates management's right to assign work
under section 7106(a)(2)(B) of the Statute.
It is recognized that in the interest of effective and efficient
government operations that the most highly qualified individuals
should be selected for employment.
A. Positions of the Parties
The Agency alleges that the proposal "would mandate via negotiations
selection of the most highly qualified person which encompasses military
personnel on the certification list(.)" Statement of Position at 2. The
Agency claims that the proposal is nonnegotiable because it is an
attempt to negotiate over military placement policy.
The Union contends that the "intent of this proposal is to reiterate
5 U.S.C. Section 7101, calling for an effective and efficient
government." Reply Brief at 11. The Union claims that the proposal is
merely a "statement calling for the most fundamental of 'merit
principles'. (A)lthough the employees involved in the bargaining unit
are not covered under Title 5, U.S.C. or the Federal Personnel Manual,
the (A)gency's own regulations mandate that merit principles apply." Id.
at 11-12.
The Union also claims that the proposal is an appropriate
arrangement, within the meaning of section 7106(b)(3) of the Statute,
for employees who are adversely affected by the exercise of management's
rights to select from any appropriate source, to determine the methods,
means, or technology of accomplishing its work, and to assign work. The
Union notes that filling bargaining unit positions with military
personnel will reduce the size of its unit, thereby reducing career
opportunities for unit employees. The Union contends that the proposal
attempts "to show a clear picture so that bargaining unit employees will
be aware of the threat to their jobs and future career opportunities."
Id. at 13. According to the Union, the proposal's "exposition may
influence the employer or higher authorities to modify their policies so
that employees in general will have this adverse impact lessened." Id.
B. Analysis and Conclusions
Nothing in Proposal 4, as plainly worded, addresses military
technicians or the criteria applicable to the selection of military
technicians for positions. Moreover, nothing in the Union's statement
of intent supports a conclusion that the Union intends Proposal 4 to
apply to the Agency's consideration or selection of military
technicians. Accordingly, consistent with our conclusions regarding
Proposals 1 and 2, we reject the Agency's contention that the proposal
does not affect conditions of employment under the Statute.
Proposal 4, as interpreted by the Union and consistent with its plain
wording, constitutes a statement of general policy that the most highly
qualified individuals should be selected for vacant positions. The
proposal does not, however, require the Agency to select the most highly
qualified individuals. The Agency has cited no law, rule, or regulation
with which the proposal allegedly is inconsistent, and, as interpreted
by the Union, no such inconsistency is apparent to us. Accordingly, we
conclude that Proposal 4 is negotiable.
With the exception that (Civilian) Technicians and AGRs are now
allowed to apply for the same position, the existing state merit
promotion and placement plan will be followed.
A. Positions of the Parties
The Agency claims that the proposal would require the application of
the negotiated placement plan to the filling of jobs with military
personnel. The Agency claims that the proposal is nonnegotiable because
it encompasses military policy and programs, matters which are not
conditions of employment under the Statute.
The Union claims that the "intent of this proposal is to require that
the (Agency) comply with the negotiated promotion procedure in the
collective bargaining agreement in compliance with 5 U.S.C. Section
7116(a)(7)." Reply Brief at 3. The Union notes that at the time the
Agency "initiated the discussion on the mixed list, that provision
violated the collective bargaining agreement the parties had in effect
at the time." Id. at 13. Further, the Union claims that the proposal
would continue the use of the negotiated promotion procedure established
for civilian technicians and would "allow 'AGR's' and military
technicians to also be included." Id. at 14.
B. Analysis and Conclusions
Proposal 5 requires the Agency to follow the existing negotiated
promotion and placement plan. The proposal does not specify the
positions to which the plan would apply but, consistent with the entire
record in this case, we construe the proposal as applying to bargaining
unit positions. Moreover, although the Union states that the proposal
"allows" military technicians to be included in the negotiated plan,
nothing in the proposal or the Union's statement supports a conclusion
that the Agency would be required to include such military technicians
in the plan. Accordingly, we reject the Agency's argument that Proposal
5 is nonnegotiable because it encompasses placement of military
technicians.
The Agency has not cited any law, rule or regulation with which the
proposal is allegedly inconsistent and no such inconsistency is apparent
to us. We conclude, therefore, that Proposal 5 is negotiable.
Rationale, General Statement of Purpose and Policy
The Parties agree that the purpose of this agreement is to
ensure that the policy of equal opportunity is carried out, to
that end the following proposal is submitted:
Management will determine before posting a job announcement,
how the position will be filled: (by) excepted civil service,
competitive civil service, or by other means.
Once that determination is made a (single) posting will be
made. If the vacancy is to be filled by civil service, the state
merit promotion plan will be followed.
(Brackets in original.)
A. Positions of the Parties
The Agency claims that Proposal 6 is nonnegotiable because it would
require the Agency "to determine how a job was to be filled, i.e., by (a
civilian) technician or military personnel before it is announced for
fill(ing)." Statement of Position at 2. Further, the Agency claims that
the proposal would preclude the Agency from recruiting simultaneously
both civilian technicians and AGRs and, thereby, directly interferes
with its right to select employees from any appropriate source under
section 7106(a)(2)(C) of the Statute.
The Union contends that the proposal is a procedural matter requiring
the Agency "to publicize its determination whether the vacancy would be
posted by excepted civil service, competitive civil service, or by other
means, and then issue the single posting within the bargaining unit."
Reply Brief at 15. The Union asserts that the proposal would not
prevent the Agency from considering other sources for candidates.
Further, the Union alleges that the proposal does not prevent the Agency
from posting bargaining unit vacancies both inside and outside the unit.
B. Analysis and Conclusions
With respect to filling positions, management has the right under
section 7106(a)(2)(C) of the Statute to make the actual selection or
appointment. See U.S. Department of the Treasury, Internal Revenue
Service, Louisville District and National Treasury Employees Union, 36
FLRA 375, 385 (1990). Moreover, section 7106(a)(2)(C)(i) and (ii) of
the Statute provides that management has the right when filling
positions to make a selection from a group of properly ranked and
certified candidates or from any other appropriate source. See
Pennsylvania National Guard and Association of Civilian Technicians and
Pennsylvania National Guard and Association of Civilian Technicians
Pennsylvania State Council, 35 FLRA 478, 487-90 (1990).
A proposal requiring an agency to rank and consider a group of
candidates from one source before soliciting or considering applicants
from another source places a substantive limit on, and directly
interferes with, management's right to select employees from any
appropriate source under section 7106(a)(2)(C)(ii) of the Statute. See
National Association of Government Employees Local R5-165 and Tennessee
Air National Guard, 35 FLRA 886, 888 (1990) (Tennessee Air National
Guard). A proposal that only would require an agency to give priority
consideration to a group of candidates from one source, but would not
prevent the concurrent solicitation of candidates from other sources,
does not violate management's right to select, however. See id. at 889.
The Union claims that the proposal does not address whether the
Agency could post bargaining unit vacancies outside the bargaining unit.
According to the Union, "nothing in the proposal could prevent a dual
posting, the additional posting taking place outside the bargaining
unit." Reply Brief at 15. As plainly worded, however, paragraphs 2 and
3 of Proposal 6 would require the Agency to determine how the vacant
position will be filled before posting a single job announcement.
Consequently, we find that the Union's claim that nothing in the
proposal prevents a dual posting is inconsistent with the plain wording
of the proposal. We do not base a negotiability determination on a
union's statement of intent that is inconsistent with the language of a
proposal. See, for example, National Treasury Employees Union and U.S.
Department of the Treasury, Internal Revenue Service, Chicago, Illinois,
38 FLRA 1605, 1609 (1991).
Further, we find that the wording in paragraph 2, "or by other means"
does not encompass the Agency's right to determine in advance that it
will solicit from all available appropriate sources in filling a
position. Rather, once the Agency determined how a vacant position will
be filled, the Agency would be limited to soliciting candidates only
from the source that is consistent with the Agency's determination.
That is, for example, if the Agency determined to fill a vacant position
with an excepted civil service person, the proposal would obligate the
Agency to solicit only excepted civil service personnel. Similarly, if
the Agency determined to fill a vacant position with an AGR, the
proposal would obligate the Agency to solicit only AGR personnel.
Stated otherwise, Proposal 6 would deprive the Agency of its right
concurrently to solicit candidates from all sources available to it.
Therefore, Proposal 6 directly interferes with the Agency's right to
select under section 7106(a)(2)(C) of the Statute. See, for example,
Tennessee Air National Guard. As the Union has not alleged that
Proposal 6 constitutes an appropriate arrangement under section
7106(b)(3) of the Statute, the proposal is nonnegotiable. In view of
our decision, we do not address the Agency's argument that the proposal
involves military placement policy which is not a condition of
employment under the Statute.
The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate concerning Proposals 1, 2, 4, and 5. /*/ The
petition for review is dismissed insofar as it concerns Proposals 3 and
6.
(*) In finding Proposals 1, 2, 4, and 5 to be within the duty to
bargain, we make no judgment as to their merits.
40 FLRA 195
40 FLRA NO. 20
AFGE, National Veterans Affairs Council and Dept. of Veterans
Affairs, Veterans Health Services and Research Administration,
Washington, D.C., Case No. 0-NG-1827 (39 FLRA No. 90) (Decided April 12,
1991)
REQUEST FOR RECONSIDERATION
NEGOTIABILITY DETERMINATION
DISAPPROVAL BY AGENCY HEAD OF FSIP DIRECTED AGREEMENT
TIME LIMIT FOR DISAPPROVAL
ADDITION OF DAYS FOR MAILING
The Agency sought reconsideration of the Authority's decision wherein
it had been concluded that the Agency had not demonstrated proper and
timely service on the Union of a disapproval of the FSIP imposed
provision. The Authority had noted in the earlier decision that a
petition for review of negotiability issues filed by a union in response
to an agency head disapproval which is not timely served on the union
does not raise negotiability issues which may be addressed by the
Authority. Accordingly, the Authority dismissed the Union's petition
for review. In its request for reconsideration, the Agency argues that
the Authority's decision is inconsistent with other Authority rulings
and general litigation practice.
The Authority concluded that the Agency had not established
extraordinary circumstances to warrant reconsideration. The Authority
rejected the Agency's claim that the Authority's refusal to permit 5
days to be added to the 30-day review period prescribed in section
7114(c) to account for the mail service of the FSIP decision constitutes
a retroactive change in the Authority's procedural rules. The Authority
also rejected the claim that the refusal to add the 5 days is
inconsistent with Authority regulations; that there is no basis in law
or practice to sustain the decision that the date of the FSIP order is
the date of execution of the agreement for the purposes of commencing
the 30-day review period under 7114(c); and that the Authority erred in
deciding that the affidavits submitted by the Agency did not establish
that the Agency timely disapproved the FSIP-imposed provision in
dispute.
Case No. 0-NG-1827 (39 FLRA No. 90 (1991))
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL VETERANS AFFAIRS
COUNCIL
(Union)
U.S. DEPARTMENT OF VETERANS AFFAIRS VETERANS HEALTH SERVICES AND
RESEARCH ADMINISTRATION WASHINGTON, D.C.
(Agency)
Before Chairman McKee and Members Talkin and Armendariz.
This matter is before the Authority on the Agency's request for
reconsideration of the Authority's decision in 39 FLRA No. 90 (1991).
The Union did not file an opposition to the Agency's request. Because
the Agency fails to establish extraordinary circumstances that would
warrant reconsideration of our decision, we will deny the request.
In 39 FLRA No. 90, the Union filed a petition for review of a
provision imposed on the parties by the Federal Service Impasses Panel
(FSIP) which was disapproved by the Acting Chief Medical Director,
Veterans Health Services and Research Administration pursuant to section
7114(c) of the Federal Service Labor-Management Relations Statute (the
Statute). As the parties were in disagreement over the date on which,
and method by which, the Agency's disapproval of the disputed provision
was served on the Union, the Authority issued an Order directing the
Agency to file with the Authority proof of service of the Agency's
disapproval of the FSIP-imposed provision. In particular, the Authority
directed the Agency to submit the certified mail receipts showing the
date the disapproval was delivered to a U.S. Postal Office.
In response, the Agency argued that on May 4, 1990, the Acting Chief
Medical Director, Veterans Health SErvices and Research Administration
signed a letter misdated May 5, 1990, disapproving the provision imposed
by the FSIP on March 30, 1990. According to the Agency, the disapproval
letter with the date corrected to May 4, 1990, was hand carried to the
Agency mailroom on May 4, 1990, for delivery to the U.S. Postal Service
that same day. The Agency claimed further that the Agency mailroom
delivered the letter to the U.S. Postal Service on May 4, 1990. The
Agency also noted that a copy of the misdated letter was transmitted to
the Union by electronic facsimile transmission (FAX) on May 4, 1990.
In support of its position, the Agency attached an affidavit by an
attorney in the Agency's Office of the General Counsel in which the
attorney stated that on May 4, 1990, he hand-carried to the Agency's
mailroom the disapproval letter to be sent to one Union official, and a
copy of the disapproval letter to be sent to a second Union official, by
certified mail on that date. The attorney stated further that "(c)
uriously, neither certified receipt was returned to this office." The
Agency also submitted an affidavit from the mailroom supervisor
indicating that the Agency mailroom delivers Agency mail to the U.S.
Postal Service on the same day it receives outgoing mail from the
initiating Agency office.
The Authority concluded that the Agency had not demonstrated proper
and timely service on the Union of a disapproval of the FSIP imposed
provision. In so concluding, the Authority first rejected an Agency
contention that 5 days should be added to the 30-day time period set out
in section 7114(c) of the Statute for an agency head to review and
approve a collective bargaining agreement because the FSIP decision was
served on the Agency by mail. Rather, the Authority stated that as
section 7114(c) of the Statute clearly establishes that an agency head
has 30 days from the date of execution of an agreement to disapprove a
provision, the 30-day period is triggered by the execution of the
agreement and not by service of a notice or other paper so as to require
the adding of 5 days to the prescribed 30-day time period. In support,
the Authority cited its decision in International Organization of
Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555,
560-63 (1990) (Panama Canal Commission) (the date on which an interest
arbitrator's award was served on the parties constituted the date of
execution of the agreement, and the agency had 30 days from that date in
which to disapprove the agreement). The Authority also noted that there
was no assertion or other basis on which to conclude that the parties
engaged in further negotiations after issuance of the FSIP decision or
that any further actions were necessary after such issuance for the
parties to execute their agreement. Consequently, the Authority held
that as March 30, 1990, the date the FSIP decision was issued to, and
served on, the parties constituted the date on which the parties'
agreement was executed for purposes of agency head review under section
7114(c) of the Statute, the 30-day time period for agency head
disapproval of the agreement expired on April 29, 1990. Accordingly,
because it was clear that the Agency had not served its disapproval of
the FSIP imposed provision on the Union by April 29, 1990, the Authority
found that the Agency's disapproval was not timely served on the Union.
In addition, the Authority noted that without regard for the parties'
disagreement over the due date for the Agency's disapproval, the Agency
had not demonstrated proper, timely service of the disapproval on the
Union. First, the Authority noted that as its Regulations do not
provide for service by facsimile transmission, the FAX transmission of
the disapproval letter did not satisfy the requirement of section
2429.27(b) of its Regulations that documents and papers be served by
certified mail or in person. Second, the Authority noted that as the
Agency did not submit a return post office receipt or other written
receipt executed by the person served, the Agency did not provide proof
within the meaning of the Authority's regulations that it timely served
the Union with its disapproval of the disputed provision.
The Authority noted that a petition for review of negotiability
issues filed by a union in response to an agency head disapproval which
is not timely served on the union does not raise negotiability issues
which may be addressed by the Authority. Accordingly, the Authority
dismissed the Union's petition for review.
The Agency contends that the Authority's decision dismissing the
negotiability appeal "is without merit, inconsistent with other
Authority rulings, and conflicts with general litigation practice."
Request for Reconsideration at 1.
First, the Agency objects to the Authority's decision that section
2429.22 of its Regulations does not authorize the addition of 5 days to
the 30-day time limit provided in section 7114(c) of the Statute for an
agency to review an agreement. The Agency claims instead, that the
Authority's ruling constitutes a retroactive change in the Authority's
procedural rules because "there was no Authority precedent on the
application of additional mail service days to FSIP-imposed provisions"
at the time of the Agency's disapproval in this case. Id. at 2. The
Agency notes that it is clear that the FSIP decision was served on the
Agency by mail and that the Agency could disapprove a FSIP-imposed
decision under section 7114(c)(2) of the Statute. Further, according to
the Agency, it is just as clear that "the plain language of section
2429.22 applies . . . to all instances where the operative event occurs
by mail service." Id. Thus, the Agency contends that the Authority's
retroactive application of its decision in Panama Canal Commission,
involving an interest arbitrator's decision, to the FSIP order in this
case "in the face of the plain language of section 2429.22, manifestly
is unfair." Id.
In addition, the Agency claims that the Authority's "ruling that the
date of the FSIP order is the date of 'execution' for purposes of
section 7114(c)(2) has no basis in law or practice." Id. The Agency
argues that the Statute is silent on the matter and, further, that the
FSIP order, by directing the parties to adopt the Union's proposal,
"clearly envision(ed) some further action by the parties to effect the
FSIP order." Id. The Agency also claims that Panama Canal Commission
"is not completely on point" because it involved an interest arbitration
decision and was based on the unique circumstances in that case,
including the parties' joint request that the interest arbitration award
encompass their entire agreement. Id. at 3. The Agency notes that in
this case, on the other hand, there was no joint request for interest
arbitration to resolve an impasse and the FSIP decision was imposed on
the parties by operation of law.
Further, the Agency argues that the Authority's decision to not add 5
days to the 30-day time period prescribed in section 7114(c) of the
Statute is inconsistent with other Authority rulings involving other
time limits specified in the Statute. In this regard, the Agency
claims, by way of example, that the Authority has added 5 days to the
statutory time limit for exceptions to arbitration awards on the grounds
that "the 5 additional mail service days does not expand the statutory
30-day time limit, but allows the parties the full benefit of 30 days to
review an arbitration award and to file exceptions." Id.
The Agency also objects to the Authority's determination that the
Agency had not established that it timely served the Union with its
disapproval of the FSIP-imposed provision. The Agency argues that in
response to the Authority's order directing the Agency to submit
evidence of timely service of its disapproval, the Agency submitted two
affidavits supporting its claim that the disapproval letter was served
on May 4, 1990. The Agency states that "(n)o receipt for certified mail
was provided because the (Agency) mailroom does not obtain USPS receipts
for the numerous pieces of certified mail delivered daily to the USPS."
Id. at 4.
Further, the Agency claims that in National Federation of Federal
Employees, Local 405 and U.S. Army Aviation Systems Command and U.S.
Army Troop Support Command, 33 FLRA 604 (1988) (U.S. Army Aviation
Systems Command) the Authority has found "such affidavits sufficient,
even without reliance on a USPS receipt, particularly in the absence of
evidence from the union that the affidavits were false or otherwise
incorrect." Id. The Agency notes that, although the Union did not
produce the envelope containing the disapproval letter for purposes of
establishing the postmark date or return the certified mail receipts,
the Union's submission of the copy of the misdated letter transmitted to
the Union by FAX indicates that the Union received the disapproval on
May 4, 1990. Thus, the Agency claims that in light of the evidence in
this case, "the Authority's insistence . . . on a non-existent USPS
receipt as the exclusive means of establishing a certified mailing date
is unreasonably narrow." Id. at 5.
Finally, the Agency objects to the Authority's dismissal of an
affidavit of counsel and urges, instead, that the Authority reverse its
order dismissing the Union's negotiability appeal.
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 39 FLRA No. 90.
We reject the Agency's claim that the Authority's refusal to permit 5
days to be added to the 30-day review period prescribed in section
7114(c) of the Statute in order to account for the mail service of the
FSIP decision constitutes a retroactive change in the Authority's
procedural rules. We note that it is well established that unless an
agency head's notice of disapproval of an executed agreement under
section 7114(c) of the Statute is served on the union involved, either
by certified mail or by personal delivery, within 30 days from the date
of execution of the agreement, the agreement will become final and
binding on the parties on the 31st day. See, for example, American
Federation of Government Employees, AFL-CIO, Local 1760 and U.S.
Department of Health and Human Services, Social Security Administration,
28 FLRA 1142 (1987) (service of disapproval of Memorandum of
Understanding on union involved 35 days after execution by the parties
did not constitute timely service of disapproval within the 30-day time
limit established by section 7114(c) of the Statute). See also National
Federation of Federal Employees, Local 1332 and Department of the Army,
Headquarters, U.S. Army Material Development and Readiness Command, 5
FLRA 599 (1981) (telephonic disapproval within the 30-day period did not
constitute a disapproval within the meaning of section 7114(c) of the
Statute); Washington Area Metal Trades Council, AFL-CIO and Naval
Research Laboratory, Washington, D.C., 5 FLRA 596 (1981) (agency
disapproval communicated to agency personnel by internal memo within the
30-day period but not served on union until more than 30 days after
execution of agreement did not constitute a timely disapproval within
the meaning of section 7114(c) of the Statute). In other words, it is
clear that regardless of the method of transmittal of an agreement to an
agency head for review under section 7114(c) of the Statute, an agency
head has 30 calendar days from the date of execution of the agreement to
approve or disapprove the agreement or the agreement becomes effective
and binding on the parties on the 31st day.
We also reject the Agency's claim that the Authority's decision to
not add 5 days to the 30-day time period prescribed in section 7114(c)
of the Statute is inconsistent with other Authority rulings involving
other time limits specified in the Statute. As indicated in 39 FLRA No.
90, the 30-day review period prescribed by section 7114(c) of the
Statute is triggered by the execution of an agreement and not by service
of a notice or other paper. In contrast, for example, the 30-day time
limit to review an arbitrator's award prescribed by section 7122 of the
Statute begins only after the award is served on the parties.
Similarly, the time limit to file a negotiability appeal commences only
after a nonnegotiability determination is served on a union. Thus, the
Authority's decision to not add 5 days to the 30-day time period
prescribed by section 7114(c) of the Statute is consistent with other
Authority rulings involving other time limits for filing appeals with
the Authority.
We also reject the Agency's contention that there is no basis in law
or practice to sustain the Authority's decision that the date of the
FSIP order is the date of execution of an agreement for purposes of
commencing the 30-day review period under section 7114(c) of the
Statute. As indicated in 39 FLRA No. 90, the parties in this case
separately sought the assistance of the FSIP to resolve an impasse
resulting from mid-term bargaining and the FSIP ordered the parties to
adopt the Union's proposal on the matter in dispute. Further, because
the Agency did not assert in 39 FLRA No. 90 and there was no other basis
in the record on which to conclude that any further actions were
necessary after issuance of the FSIP decision for the parties to
"execute" the FSIP decision, that decision became final and subject to
agency head review as of the date it was issued.
Finally, we reject the Agency's claim that the Authority erred in
deciding that the affidavits submitted by the Agency did not establish
that the Agency timely disapproved the FSIP-imposed provision in
dispute. We note that, contrary to the Authority's order directing the
Agency to submit certified mail receipts showing the date the
dispapproval was delivered to the U.S. Postal Office, the Agency
submitted only affidavits in support of its claim that the FSIP-imposed
provision was timely disapproved. Moreover, the Agency's reliance on
U.S. Army Aviation Systems Command to support its claim that the
Authority has found such affidavits, standing alone, to be sufficient to
establish service of documents to be misplaced. A careful review of
U.S. Army Aviation Systems Command establishes that the agency involved
submitted both an affidavit supporting its position that it timely
disapproved certain provisions of a collective bargaining agreement on a
specified date and a copy of a receipt of certified mail dated that same
date. In those circumstances, the Authority concluded that the agency
timely disapproved the agreement in dispute. In this case, as indicated
above, the Agency submitted only affidavits to support its position that
it timely disapproved the FSIP-imposed provision in dispute. Thus, we
conclude that the Authority did not err in finding that the Agency's
affidavits did not establish that the Agency timely disapproved the
FSIP-imposed provision.
In sum, the Agency's arguments constitute nothing more than
disagreement with the Authority's decision in 39 FLRA No. 90 and an
attempt to relitigate the merits of the case. Consequently, the Agency
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 Army, Lexington Blue Grass Army Depot, Lexington,
Kentucky, 39 FLRA No. 129, slip op. at 4 (1991). The Agency's request
will, therefore, be denied.
The Agency's request for reconsideration of the Authority's Order in
39 FLRA No. 90 is denied.
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