10 U.S.C. 2809
DIGEST NOTES
Proposal 1 provides that the Employer agrees to reimburse employees
for any loss of funds, e.g., airline tickets, hotel reservations, etc.,
which is cause by a cancellation of approved leave for any reason, the
employee submitting written documentation of the loss. Adopting the
interpretation of the proposal that it would not require the Agency to
reimburse an employee for losses resulting from the employee's
cancellation of previously approved leave for purely personal
considerations, the Authority concluded that the proposal concerns a
condition of employment. Further, the Authority, noting that the funds
required by the proposal need not be derived from appropriated funds,
rejected the argument that the proposal is nonnegotiable because the use
of appropriated funds under the circumstances is inconsistent with
decisions of the Comptroller General.
Proposal 2 provides that all employees working a regular schedule of
at least 20 hours per week have the option of participating in the Air
Force Insurance Plan or NAGE Health Benefit Plan, and the Employer will
pay the same amount for an employee toward the NAGE Plan as they would
had the employee selected the Air Force Plan. Proposal 3 provides that
all employees will receive a 6% wage increase every year for the next
three years. The Authority found that the proposals concern conditions
of employment, and also rejected the Agency contention that 7121(c)(2)
provides an additional basis to conclude that Congress did not intend to
include the subject in the proposals within the definition of conditions
of employment.
The Authority also determined that the proposals did not interfere
with the Agency's right to determine its budget, applying its two part
test for such determinations. The Authority noted that under the first
test a union may not specify the programs to be included in an agency's
budget or the amount to be allocated to those programs. Under the
second test, the proposal is nonnegotiable if it would result in
unavoidable increases in costs of such magnitude as to implicitly
determine the agency's budget. The second test depends on balancing
whatever significant increased costs would unavoidably result from the
proposal against the benefits of the proposal to determine the "net"
costs of the proposal are significant and would, in effect, determine
the agency's budget.
Finally with respect to Proposals 2 and 3, the Authority concluded
that they do not conflict with an Agency regulation for which a
compelling need exists, finding that the Agency had not met its burden
of establishing that the regulations in question are essential, as
opposed to helpful and desirable to the preservation of employee morale
and mobility. However, to the extent that proposal 3 applies to
employees covered under the Prevailing Rate Systems Act, who are not
covered by section 9(b) and section 704, the proposal is nonnegotiable.
Proposal 4 provides that the Employer will provide free child care
services for unit employees' children when the employee is in a duty
status. The Authority found that to the extent that the proposal
requires free child care services at centers operated for members of the
Armed Services, it is inconsistent with the Child Care Act. The
Authority rejected the Agency's contentions that the proposal is
inconsistent with 10 U.S.C. 2809 because it ignores the requirement in
that statute that the Agency may not enter into a contract for the
construction, management and operation of child care facilities without
congressional approval, that the proposal is inconsistent with
Comptroller General's decisions, and that the proposal is inconsistent
with Agency regulations for which there is a compelling need. The
Authority concluded that to the extent that the proposal applies to
child care centers operated for non-members of the Armed Forces, it is
negotiable, but to the extent it applies to child care centers operated
for members of the Armed Forces, it is nonnegotiable.
Proposal 5 provides that management agrees that a 20% service charge
will be applied on all Special Functions. All employees who work the
Special Functions will receive 15% of the service charge. Waiters and
waitresses will receive 90% of the service charge, all other employees
who work the Special Function will receive 10%. The Authority concluded
that the proposal, read in its entirety, does not involve a condition of
employment of unit employees and it was dismissed.
Case No. 0-NG-1589
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-26
(Union)
and
DEPARTMENT OF THE AIR FORCE, LANGLEY AIR FORCE BASE, VIRGINIA
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 11, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of five proposals.
For the reasons stated below, we find that Proposal 1, which requires
the Agency to reimburse employees for any loss of funds incurred as a
result of the cancellation of leave by the Agency, concerns a condition
of employment and is not inconsistent with law, rule or regulation and
is, therefore, negotiable. Proposals 2 and 3 concern pay and
money-related fringe benefits and are negotiable because the proposals
(1) involve conditions of employment; (2) do not interfere with the
Agency's right to determine its budget; and (3) do not conflict with
Agency regulations for which a compelling need exists. However, to the
extent that Proposal 3 would affect employees covered under the
Prevailing Rate Systems Act of 1972 (Prevailing Rate Systems Act), Pub.
L. No. 92-392, 86 Stat. 564 (1972) (codified as amended at 5 U.S.C.
Sections 5341-5349 (1988), the proposal conflicts with that statute and
is nonnegotiable. Proposal 4, to the extent that it does not concern
free child care services for children at centers providing services for
members of the Armed Forces, is not inconsistent with law, or Agency
regulations for which a compelling need exists, and thus is negotiable.
However, to the extent that Proposal 4 would require free child care
services at centers for members of the Armed Forces, it is inconsistent
with the Military Child Care Act of 1989 and is outside the duty to
bargain. Proposal 5, which mandates that the Agency charge its patrons
a 20 percent surcharge on prices for certain services rendered, does not
concern a condition of employment and is, therefore, outside the duty to
bargain.
II. Background
The Union represents approximately 270 nonappropriated fund (NAF)
employees who are employed by nonappropriated fund instrumentalities
(NAFI) at Langley Air Force Base. The NAFIs consist of seven entities.
They are Officers Open Mess; Noncommissioned Officers Open Mess;
Central Base Fund; Aeroclub; Class 6 Liquor Store; Yacht Club; and
Nonappropriated Fund Financial Management Branch. As NAF employees,
bargaining unit employees' compensation and health benefits are not
established by law but, rather, by the Agency.
III. Proposal 1
Annual Leave, Section 4. The Employer agrees to reimburse
employees for any loss of funds, e.g., airline tickets, hotel
reservations, etc., which is caused by a cancellation of approved
leave for any reason. The employee will submit written
documentation of the loss.
A. Positions of the Parties
The Agency asserts that Proposal 1 does not concern a condition of
employment. In this regard, the Agency contends that the second factor
of the test set forth in Antilles Consolidated Education Association and
Antilles Consolidates School System, 22 FLRA 235, 236-37 (1986)
(Antilles), has not been met. Statement of position at 8-10. According
to the Agency, the proposal requires the Agency to reimburse employees
"if an employee's approved leave is cancelled for any reason and the
employee can prove a loss." Id. at 9. The Agency argues that there is
no direct connection between the proposal and the employees' work
situation or employment relationship because the proposal concerns
employees' activities during non-duty hours that are unrelated to their
work situation or employment relationship. The Agency relies upon
International Association of Fire Fighters, AFL-CIO, CLC, Local F-116
and Department of the Air Force, Vandenberg Air Force Base, California,
7 FLRA 123 (1981) (Vandenberg Air Force Base) (proposal that permitted
employees to utilize on-base recreational facilities during off-duty
hours did not concern conditions of employment); and Overseas Education
Association, Inc. and Department of Defense Dependents Schools, 29 FLRA
734 (1987), aff'd as to other matters, Overseas Education Association,
Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988) (Overseas Education
Association) (proposal that ensured employees' right to freedom of
expression in their communities found not to be related to the work
situation or employment relationship). The Agency distinguishes
National Federation of Federal Employees, Local 1363 and Headquarters,
U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980) (proposal
concerning ration control involved condition of employment because an
agency directive conditioned overseas recruitment on ability to provide
such services), stating that there are no comparable agency regulations
in the instant case that could create a "direct connection between the
proposal and the work situation or employment relationship." Statement
of position at 9. In addition, the Agency contends that the Union has
failed to identify the source of the reimbursements and that
reimbursement from appropriated funds is prohibited by law. In support,
the Agency asserts that the Comptroller General has final authority over
the expenditure of appropriated funds and that the Comptroller General
has held that an agency is not responsible for expenses which are
personal, such as a forfeited deposit resulting from a cancellation of
approved leave.
The Union states that the proposal is intended to provide employees
with a fair and equitable leave policy so that the Agency will be held
accountable for any loss of funds caused by cancellation of approved
leave. The Union explains that under the proposal employees are to be
reimbursed for any loss of funds because the Agency has cancelled
approved leave for any reason and clarifies that the reimbursement of
funds will come from nonappropriated funds. The Union maintains that
the proposal concerns a condition of employment and is consistent with
the Statute.
B. Analysis and Conclusions
1. The Proposal Concerns a Condition of Employment
In deciding whether a proposal concerns a condition of employment of
bargaining unit employees, the Authority has considered whether: (1)
"the proposal pertains to bargaining unit employees;" and (2) "the
record establishes that there is a direct connection between the
proposal and the work situation or employment relationship of bargaining
unit employees." Antilles, 22 FLRA at 237.
In American Federation of Government Employees, Local 2761 v. FLRA,
866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), decision on remand,
35 FLRA 1105 (1990), in determining whether the matter at issue was a
condition of employment, the United States Court of Appeals for the
District of Columbia Circuit examined whether there was a "link" or
"nexus" between that matter and the workers' employment. Id. at 9, 12.
The court found that where a matter has "a direct effect on the work
relationship," it concerns a condition of employment. Id. at 12.
The Union states that Proposal 1 is intended to apply to
reimbursement for only those losses resulting from a cancellation of
approved leave by the Agency. We conclude that the language of the
proposal does not conflict with the Union's stated intent because it is
reasonable to interpret the phrase "for any reason" as referring to the
Agency's basis for the cancellation of approved leave. Accordingly, we
adopt the interpretation given to the proposal by the Union. Under this
interpretation, the proposal would not require the Agency to reimburse
an employee for losses resulting from the employee's cancellation of
previously approved leave for purely personal considerations, as the
Agency suggests. Rather, it would result in reimbursement only when an
employee, in reliance upon the Agency's approval of a leave request, has
made nonrefundable payments, and therefore incurs losses solely because
the Agency later withdraws its approval.
It is not disputed that the proposal pertains to bargaining unit
employees and that it meets the first factor of the Antilles test. With
regard to the second factor, the Agency contends that the proposal
concerns only employees' activities on non-duty hours and has no direct
connection with the work situation or employment relationship. We
disagree. Clearly, leave is "a significant and valued benefit of
employment(.)" AFGE, Local 2761, 866 F.2d at 1447. When leave has been
approved, an employee is justified in believing that he or she can make
plans to enjoy that work-related benefit. Often, those plans will
involve expenditures that cannot be recouped. When management cancels
leave approval in such circumstances and instead requires the employee
to report to work, the resultant losses incurred by the employee stem
directly from the work relationship even though the original
expenditures were made for activities that would have taken place on
non-duty time.
Vandenberg Air Force Base, relied upon by the Agency, is
distinguishable from the proposal involved here. In that case the
proposal permitted employees to utilize on-base recreational facilities
during off-duty hours. The Authority found that a relationship between
the recreational activities of off-duty employees and their dependents
and employment as firefighters was not apparent from either the plain
language of the proposal or the proposal's effect. Similarly, in
Overseas Education Association, the proposal referred to by the Agency
concerns off-duty conduct that had no relationship to the employees'
work. In contrast, the proposal involved here, by its very terms,
becomes operative only when the Agency cancels its approval for the
employee's leave and determines that an employee is obligated to report
to work. Accordingly, for the reasons stated above, we find that the
proposal concerns conditions of employment of bargaining unit employees.
2. The Proposal Is Not Inconsistent with Law, Rule or Regulation
The Agency asserts that the Comptroller General has final authority
over the expenditure of appropriated funds and has found that the
expenditure of such funds for the purposes required by the proposal is
inappropriate. However, the Union states that the funds required by the
proposal are intended to be generated from nonappropriated funds. The
proposal does not indicate which funds would be utilized for the
reimbursement of loss expenses. Because the Union's stated intent is
consistent with the language of the proposal, we find the proposal does
not require that the funds be derived from appropriated funds.
Inasmuch as the funds required by Proposal 1 need not be derived from
appropriated funds, we reject the Agency's arguments that the proposal
is nonnegotiable under section 7117(a) because the use of appropriated
funds under the circumstances is inconsistent with decisions of the
Comptroller General. As the Agency has not established, and it is not
otherwise apparent, that the proposal is inconsistent with law, rule or
regulation, we find that the Agency has not demonstrated that Proposal 1
is outside the duty to bargain.
For the reasons set forth above, we find that Proposal 1 concerns a
condition of employment and is within the duty to bargain.
IV. Proposals 2 and 3
Proposal 2
Benefits, Section 4. All employees working a regular schedule of
at least 20 hours per week have the option to participate in the
Air Force Insurance Plan or NAGE Health Benefit Plan. The
Employer will pay the same amount for an employee toward the NAGE
Health Benefit Plan as they would had the employee selected the
Air Force Insurance Plan.
Proposal 3
Benefits, Section 5. All employees will receive a 6% wage
increase every year for the next three years.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposals 2 and 3 are nonnegotiable because
the proposals (1) do not involve matters concerning conditions of
employment within the meaning of the Statute; (2) interfere with
management's right to determine its budget under section 7106(a)(1) of
the Statute; and (3) conflict with Agency regulations for which a
compelling need exists. In addition, the Agency contends that Proposal
2 is inconsistent with section 7121(c)(2) of the Statute and that
Proposal 3 violates the Prevailing Rate Act, /1/ Federal Manual
Supplement 532-2 (FPM), and section 612 of Public L. 100-440.
In support of its contention that the proposals are inconsistent with
the Statute, the Agency argues in its initial statement of position that
Congress did not intend wages and fringe benefits to be subject to
collective bargaining under the Statute. The Agency further argues that
inasmuch as Proposal 2 is not governed by section 704 of the Civil
Service Reform Act, and section 7121(c)(2) of the Statute excludes
health insurance matters from coverage of negotiated grievance
procedures, negotiations over Proposal 2 would be inconsistent with
congressional intent and the Statute. In support, the Agency claims
that bargaining unit employees have never negotiated wages or employment
benefits under section 9(b) of Pub. L. No. 92-392, codified at 5 U.S.C.
Section 5343 (Amendments, note) (1988).
The Agency argues that Proposal 2 interferes with its right to
determine its budget because it could affect its percentage contribution
to the employees' health benefit plan as well as the cost of
administering their participation in one or more plans, and that it
would therefore directly affect the total amount of money budgeted for
health benefits premiums. It contends that the proposal "will
undoubtedly result in dividing the program into a multitude of different
plans." Statement of position at 18. Therefore, the Agency argues that
Proposal 2 would necessitate adjustments in its budgetary allocations
and would result in an increase in expenditures or increases in prices,
which would make the NAFI less competitive. It rests its argument on
the observation that "any increase in costs must disrupt the budget."
Id. at 17. In sum, the Agency argues that Proposal 2 would create
increased costs and a "direct influence on the budget." Id. It also
argues that the increased costs would be significant, unavoidable and
not offset by compensating benefits.
The Agency argues that because Proposal 3 requires it to finance and
set aside a specific amount of money at yearly intervals for three
years, it clearly concerns the budget. The proposal interferes with its
right to determine its budget, according to the Agency, because it does
not allow the Agency to determine the specific amount required to fund
expenditures. The Agency also contends that the increased costs are
significant. In this regard, the Agency projects the cost of Proposal 3
as $166,287 for the first year. It notes that although that figure
would result in a cost of $498,861 over the three-year period covered by
the proposal, in fact it would be higher because the amount would be
compounded after the first year. In a supplemental brief filed after
the Supreme Court's decision in Fort Stewart Schools v. FLRA, 110 S.
Ct. 2043 (1990) (Fort Stewart), the Agency states that wage and salary
costs represent approximately 83.5 percent of the $7,100,000 budget for
the NAFIs at Langley Air Force Base and that an increase of $166,287 for
bargaining unit employees would have represented 2.34 percent of that
budget, effective October 1, 1988. /2/ It also indicates that if the 6
percent wage increase were granted to all NAFI employees at Langley, the
cost would be $408,217, or 5.75 percent of the NAFI budget at Langley.
In its original statement of position, however, the Agency recognized
that the actual cost of the proposal would in fact have been less
because of increases in wages and salaries the employees were due to
receive under the current DoD wage and salary system and because the
proposal could not by law and regulation apply to all of the employees
in the bargaining unit. Applying this formulation, the Agency
determined that the first-year cost of the wage increase required by the
proposal, if applied in October 1988, would have been $34,138 in the
bargaining unit or $110,359 if applied to all the NAFIs at Langley. On
that basis, and assuming no change over the three-year period in terms
of pay increases, which the Agency conceded was unlikely, the projected
costs over a three-year period were $410,877 at Langley and $129,525 in
the bargaining unit alone.
In its supplemental statement, the Agency also argues that the
portion of the budget test that requires an inquiry as to whether the
costs of a proposal are "unavoidable" and "not offset by compensating
benefits" is unreasonable and contrary to the Statute. It asserts that
it has not provided the Authority with any evidence regarding
compensating benefits because "there is no evidence whatsoever to prove
or disprove that the proposals would have any compensating benefits."
Supplemental statement of position at 4 (emphasis in original). It
argues that any such evidence would be speculative and unsupportable.
It contends that both of these portions of the Authority's budget test
make the Authority the arbiter of an agency's budget.
In support of its contention that Proposal 2 conflicts with an Agency
regulation for which a compelling need exists, the Agency relies upon
Air Force Regulation (AFR) 34-3, Volume VIII, paragraphs 1-7e and 4-1,
which prohibits employing NAFIs from contributing premiums to any group
plan other than the Air Force-sponsored group plan. The Agency contends
that the regulation is essential to the accomplishment of the Agency's
mission. The Agency argues that the NAFI system is self-financing and
has the objectives of providing morale, welfare and recreational (MWR)
activities for military personnel. The Agency claims that the cost of
changing from the present health benefits plan to the system
contemplated by Proposal 2 at Langley AFB would be approximately
$104,707, and, if the proposal were applied throughout the DoD system,
the additional cost would be $1,970,236. The Agency argues the
increased cost would undermine the objectives of the NAFI system.
Moreover, the Agency argues that the administration of two plans is
unmanageable and would lead to system failures and errors that would
create "costs in terms of employee morale and confidence in their 'pay'
system." Statement of position at 21-22. In addition, the Agency
asserts that permitting unions to bargain over the matter could result
in two or more "contribution destinations and rates" for 160 bargaining
units. Id. at 21. The Agency also contends that if the central
programs become unmanageable the proposal may result in separate
programs at each installation. Separate programs would result in
different rates and benefits at each installation, which would
"inevitably affect the performance of the available work force and the
level of quality of the pool of potential employees available for that
work force." Id. at 23. The Agency argues that "(t)he administrative
burdens and inefficiencies inherent in attempting to track and verify
submissions based on potentially 160 separate multi-rate structures
throughout the Air Force" are overwhelming. Id. at 22. In regard to
Langley AFB, the manpower necessary to implement the "change in the
contribution rates to the group health insurance program would be in
excess of 8,930 man hours." Id.
The Agency argues that the net effect of the proposal would be a
reduction of services or an increase in prices for services rendered,
and unpredictable variations in benefit levels among bargaining units,
which would affect employee morale. The Agency claims that such an
impact on employee morale eliminates both the purpose of the NAFI system
and a vital recruitment and retention program. Lastly, the Agency
argues that the proposal is inconsistent with standard group insurance
practice. It claims that providing employees the option of having
another health plan could result in the inability of the Air Force to
maintain a viable separate program, which it asserts to be the more
economical way to provide benefits.
The Agency raises two arguments to support its contention that
Proposal 3 conflicts with an Agency regulation for which there is a
compelling need. First, the Agency asserts that the proposal conflicts
with DoD 1401.1-M, Chapter III and Appendix E, which requires that
Crafts and Trades (CT) employees be compensated in accordance with the
Prevailing Rate Act and implementing OPM regulations. The Agency
contends that there is a compelling need for this regulation because DoD
1401.1-M "implement(s) a mandate to DoD under law and OPM authority
which implementation is essentially nondiscretionary in nature." Id. at
30.
Secondly, the Agency contends that Proposal 3 conflicts with DoD
1401-M, Chapter III and Appendices B and E, and Paragraph 14-2 of AFR
40-7, which administratively extend certain principles of the Prevailing
Rate Act and FPM Supp. 532-2 to Administrative Support (AS) and Patron
Service (PS) hourly employees and establish a uniform salary system for
Universal Annual (UA) employees, thereby creating a uniform,
comprehensive administrative pay system for all NAF employees. The
Agency argues that the uniformity prescribed by its regulations "is
essential to the accomplishment of the mission and the execution of the
functions of DoD in a manner which is consistent with the requirements
of an effective and efficient government." Id. at 31. Additionally, the
Agency argues that its regulation is necessary to ensure equitable
treatment of NAF employees and the existence of the "carefully
constructed wage structure for NAFIs(,)" which is consistent with
prevailing rate principles. Id. at 33. Permitting the Union to
negotiate wages and money-related fringe benefits would be inconsistent
with principles of "equal pay for equal work" and would permit the
Federal Service Impasses Panel (FSIP) or an interest arbitrator to
determine wage and salary on a case by case basis, thereby nullifying
the prevailing rate system for that area. Id. at 33-34. Lastly, the
Agency contends that the cost of implementing Proposal 3 would be great
and that the reduction of funds available to carry out the DoD MWR
program would adversely affect the program and "those who benefit from
the program and look to the program as a(n) employment privilege and
benefit." Id. at 40.
2. The Union
The Union asserts that the proposals (1) concern a condition of
employment of bargaining unit employees which is within the Agency's
discretion; (2) do not interfere with the Agency's right to determine
its budget; and (3) do not conflict with Agency regulations for which a
compelling need exists. In regard to Proposal 2, the Union argues that
the Agency would pay the same percentage toward the NAGE plan as the
Agency pays towards the Air Force Insurance Plan. Citing American
Federation of Government Employees, AFL-CIO, Local 997 and Department of
the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA 475 (1986); and
American Federation of Government Employees, AFL-CIO, Local 1897 and
Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377
(1986) (Eglin), the Union asserts that the Authority has found
negotiable proposals involving health, life and accident insurance for
NAF employees.
The Union argues that inasmuch as Proposal 3 concerns wages for NAF
employees, a matter within the discretion of the Agency, it is
consistent with sections 7117(a) and 7103(a)(14) of the Statute. In
support, the Union cites to the Authority's decisions in pay and fringe
benefit cases and in particular to the Authority's decision in Eglin;
the decision of the U.S. Court of Appeals for the Second Circuit in West
Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2nd
Cir. 1988); and the Supreme Court's decision in Fort Stewart.
B. Analysis and Conclusions
1. The Proposals Concern Conditions of Employment
Under the Statute, parties are obligated to bargain over proposals
concerning conditions of employment, provided that the proposals do not
conflict with law, Government-wide regulation, or an agency regulation
for which there is a compelling need. Conditions of employment are
defined generally in section 7103(a)(14) of the Statute as personnel
policies, practices, and matters -- whether established by rule,
regulation, or otherwise -- affecting working conditions. Matters that
are specifically provided for by Federal statute are excluded from the
definition of conditions of employment in section 7103(a)(14)(C) of the
Statute.
The Authority applies this basic analytical framework to
negotiability questions presented to it, including those that concern
pay and fringe benefits. For example, Eglin. In Fort Stewart, the
Supreme Court upheld the Authority's conclusion that proposals
concerning pay and fringe benefits concern "conditions of employment" in
circumstances where pay and fringe benefits are not specifically
provided for by statute. The Court rejected contentions that (1) the
term "conditions of employment," contained in the Statute, does not
encompass pay; and (2) statements in the legislative history of the
Statute, on which the Agency in this case relied in its initial
statement of position, warrant a conclusion that pay and fringe benefit
proposals are not "conditions of employment" under the Statute. Thus,
under Fort Stewart and Eglin, matters concerning pay and fringe benefits
that are not specifically provided for by Statute, but are left to the
discretion of the agency, are conditions of employment within the
meaning of section 7103(a)(14) of the Statute. See also Department of
the Army, United States Support Command, Fort Schafter, Hawaii v. FLRA,
914 F.2d 1291 (9th Cir. 1990) (Fort Schafter) (fringe benefits for NAFI
employees are conditions of employment within the Statute).
With the exception of the CT employees, who are covered by the
Prevailing Rate Systems Act, as discussed below, the health benefits
program and wage system for the NAFI employees who are involved in this
case are not provided for by Federal statute or Government-wide
regulation, but are governed solely by Agency regulations. Because the
health benefits program and the wage system are not specifically
provided for by Federal statute, they are not excepted from the
definition of conditions of employment in section 7103(a)(14) of the
Statute. Rather, they are matters that are within the Agency's
discretion. See, for example, American Federation of Government
Employees, Local 1857 and U.S. Department of the Air Force, Air
Logistics Center, Sacramento, California, 36 FLRA 894, 900 (1990) (Air
Logistics Center); and Eglin. The proposal in Eglin, like Proposal 2
in this case, concerned the employer's contribution to employee health
insurance premiums. Based on the decisions in Fort Stewart, Eglin, and
Air Logistics Center, we reject the Agency's contention that the
proposals in this case do not concern conditions of employment.
The Authority also rejects the Agency's contention that section
7121(c)(2) of the Statute provides an additional basis to conclude that
Congress did not intend to include the subject of Proposal 2 within the
definition of conditions of employment. The mere fact that Congress
excluded from the grievance procedure grievances involving "retirement,
life insurance, and health insurance" does not warrant a finding that
those matters are also excluded from the definition of conditions of
employment subject to a duty to bargain. The Authority has recognized
that the scope of a grievance procedure is not necessarily coextensive
with the scope of the duty to bargain. National Treasury Employees
Union, Chapter 15 and Internal Revenue Service (Los Angeles District),
33 FLRA 229, 238 (1988).
2. The Proposals Do Not Interfere with the Agency's Right To
Determine Its Budget
To establish that a proposal interferes with the right to determine
its budget an agency must either: (1) demonstrate that the proposal
prescribes the particular programs or operations the agency would
include in its budget or prescribes the amount to be allocated in the
budget for them; or (2) make a substantial demonstration that the
proposal entails an increase in costs that is significant and
unavoidable and is not offset by compensating benefits. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), 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).
In Wright-Patterson, the Authority noted that neither the Statute nor
the legislative history contains a definition of "budget." The Authority
concluded, therefore, that it was appropriate to give the term "budget"
its "common or dictionary definition." 2 FLRA at 607-08. Using the
dictionary definition, the Authority found that an "agency's authority
to determine its budget extends to the determination of the programs and
operations which will be included in the estimate of proposed
expenditures and the determination of the amounts required to fund
them." Id. at 608. The first budget test stems from this finding.
Under the first test, a proposal is nonnegotiable if it "prescribe(s)
the particular programs or operations the agency would include in its
budget or . . . prescribe(s) the amount to be allocated in the budget
for them(.)" Id.
Even if a proposal does not require that an agency's budget include
(1) specified programs or operations, or (2) specified amounts to be
allocated to those programs, it may be nonnegotiable under the
Authority's second test. The second test is used when an agency claims
that a proposal conflicts with its right to determine its budget because
the proposal would result in increased costs. In Wright-Patterson, the
Authority noted the following about agency allegations that a proposal
would result in increased costs:
(T)o one extent or another, most proposals would have the effect
of imposing costs upon the agency which would require the
expenditure of appropriated agency funds. Nothing in the relevant
legislative history indicates that Congress intended the right of
management to determine its budget to be so inclusive as to negate
in this manner the obligation to bargain.
Id. at 607.
To deal with proposals that do not by their terms prescribe a
particular program or amount to be included in an agency's budget but
are alleged to violate the agency's right to determine its budget
because of increased cost, the Authority established the second budget
test:
Only where an agency makes a substantial demonstration that an
increase in costs is significant and unavoidable and is not offset
by compensating benefits can an otherwise negotiable proposal be
found to violate the agency's right to determine its budget under
section 7106(a) of the Statute.
Id.
The second budget test has three parts. To establish that a proposal
interferes with its right to determine its budget, an agency must make a
substantial demonstration that the proposal would lead to increased
costs that are: (1) significant, (2) unavoidable, and (3) not offset by
compensating benefits. /3/
In sum, under the first test, a union may not specify the programs to
be included in an agency's budget or the amounts to be allocated to
those programs. This test safeguards the agency's right to determine
its budget under the literal definition of budget. Under the second
test, the proposal is nonnegotiable if it would result in unavoidable
increased costs of such a magnitude as to implicitly determine the
agency's budget. The second test depends on balancing whatever
significant increased costs would unavoidably result from the proposal
against the benefits of the proposal to determine whether the "net"
costs of the proposal are significant and would, in effect, determine
the agency's budget.
The Agency's argument that "any increase in costs must disrupt the
budget" and would interfere with management's right to determine its
budget was considered and rejected in Air Logistics Center, 36 FLRA at
903. In that case we found that the adoption of the agency's
construction of section 7106 would require the Authority to find
nonnegotiable all proposals for which a "cost" can be determined,
thereby sharply curtailing the scope of collective bargaining, a result
we believe to be inconsistent with congressional intent. Id.
a. The First Budget Test
The first budget test is a narrow one. It withdraws from bargaining
only those proposals addressed to the budget per se, not those that
would result in expenditures by an agency and, consequently, have an
impact on the budget process. See, for example, Fort Stewart, 110 S.
Ct. at 2052-53 (Marshall, J., concurring); National Association of
Government Employees, Local R-144, Federal Union of Scientist and
Engineers and U.S. Department of the Navy, Naval Underwater Systems
Center, Newport, Rhode Island, 38 FLRA 456, 479-80 (1990), application
for review pending, No. 91-1045 (D.C. Cir. Jan. 24, 1991). Proposals
that simply have cost ramifications cannot be said to inject a union
directly into the budget formulation process that is protected from
bargaining under the first budget test. See, for example, Air Logistics
Center, 36 FLRA at 904.
Proposals 2 and 3 in this case do not involve the Union in the
budgetary process itself but are limited to requiring the Agency to make
available to employees the option of participation in a non-Air
Force-sponsored health benefit plan and specifying the percentage of
increase in wages employees would receive. Id. They do not prescribe a
program or operation to be included in the Agency's budget, nor do they
prescribe an amount to be included in the Agency's budget. The
proposals leave to the Agency the judgment as to how the proposals will
be financed. For example, the Agency is not foreclosed from seeking to
offset the increases in costs that might otherwise result from the
proposals by altering the existing program. Therefore, we conclude that
the proposals do not specify a program or operation to be included in
the Agency's budget.
Proposal 2 does not require an increase in the cost of health
benefits. Rather, it requires the Agency to allow the employee the
option of participating in another health benefit plan. The proposal
specifically states that the Agency will pay the same amount toward the
NAGE Health Benefit Plan as it pays toward the Air Force Insurance Plan.
Although Proposal 3 could affect the amount that the Agency budgets for
wages, it does not require that a specific amount be allotted in the
budget for wages. Consequently, the proposals do not prescribe the
amount to be allocated in the Agency's budget for its employee health
insurance program or wages.
b. The Second Budget Test
The Agency fails to provide any evidence as to the specific cost of
Proposal 2. Therefore, the Agency has failed to demonstrate that the
increased costs, if any, associated with Proposal 2 are significant.
In addition, the Agency has failed to make a substantial
demonstration that the cost increases it projects in administering
Proposal 2 are "unavoidable." Thus, the Agency has not provided any
detailed support for its statements that increased administrative costs
will result from Proposal 2 other than to state that the outcome of the
proposal "will undoubtedly result in dividing the (health benefits)
program into a multitude of different plans." Statement of position at
18. Therefore, we need not reach the arguments made in the Agency's
supplemental statement that it is unreasonable and contrary to the
Statute to require a showing that the costs of a proposal are either
unavoidable or not offset by compensating benefits.
The Agency projects that Proposal 3 would have resulted in increases
totaling 2.34 percent of its NAFI budget at Langley Air Force Base if
applied to the bargaining unit effective October 1988, or 5.75 percent
of that budget if applied to all NAFI employees at Langley. We do not
find an increase of either 2.34 percent or 5.75 percent of a $7,100,000
budget to be "significant." See, for example, Fort Stewart, 110 S. Ct.
at 2050; American Federation of Government Employees and U.S.
Department of Defense, Army and Air Force Exchange Service, Dallas,
Texas, 38 FLRA 282, 291-92 (1990). Further, by the Agency's own
admission, these figures would have been offset by regularly scheduled
wage and salary increases, thereby resulting in far smaller percentage
increases in wage and salary increases directly attributable to the
proposal. Indeed, the projected increase of $34,138 resulting from
applying the proposal to bargaining unit employees in October 1988 after
deducting the costs of regularly scheduled wage and salary increases
amounts to less than one-half percent of the overall NAFI budget, hardly
a significant amount under any calculation. Based on this disposition
of the issue, we need not reach the Agency's arguments that it is
unreasonable and contrary to the Statute to require a showing that the
costs of a proposal are either unavoidable or not offset by compensating
benefits.
In conclusion, the Agency has failed to (1) demonstrate that the
proposals prescribe a particular program or operation to be included in
its budget or prescribe the amount to be allocated in the budget for
them; or (2) demonstrate that the proposals would entail significant
increases in costs.
Accordingly, we conclude that the proposals do not conflict with the
Agency's right to determine its budget.
3. The Proposals Do Not Conflict with an Agency Regulation for Which
a Compelling Need Exists
An agency asserting compelling need as a bar to negotiation of a
proposal bears the burden of demonstrating that there is an overriding
need for the uniform application of the policies reflected in the agency
regulation for which it asserts a compelling need. See, for example,
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
217, 220 (1981). To establish a compelling need for an agency
regulation, an agency must: (1) identify the 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 standards set forth in section
2424.11 of the Authority's 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,
454-55 (1980). Generalized and conclusionary reasoning is not enough to
support a finding of compelling need. American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA 870, 881 (1986) (FDIC, Madison
Region).
To establish a compelling need under section 2424.11(a) of the
Authority's regulations, an agency must demonstrate that its regulation
is essential, as distinguished from helpful or desirable, to the
accomplishment of its mission or execution of its functions in a manner
that is consistent with the requirements of an effective and efficient
Government. The Agency has not met its burden of establishing that the
regulations in question are "essential" to carrying out the mission of
the NAFIs at Langley Air Force Base. That is, we find that the
requirements that the Agency contribute only to the Air Force-sponsored
group health benefit plan and that there be a uniform wage system is not
essential to the accomplishment of the mission of the NAFIs in providing
for the morale, welfare and recreation of active duty members, their
families and retirees. The Agency does not rely on section 2424.11(b)
for a compelling need argument. With respect to the Agency's assertion
that a compelling need exists for DoD Manual 1401.1-M under section
2424.11(c), we find it unnecessary to address that argument for the
reasons stated in note 5, below.
a. Air Force Regulation 34-3, Vol. VIII, Paragraph 1-7e and 4-1
The Agency asserts that Proposal 2 in this case conflicts with AFR
34-3, Vol. VIII, paragraph 1-7e and 4-1. That regulation provides in
pertinent part:
1-7. Established Insurance Coverages. The following coverages
are provided through centrally established programs and,
therefore, are not authorized to be locally purchased;
. . . . . . .
e. Group life and health insurance (see chapter 4).
4-1. Purpose. This program provides eligible USAF NAFI
employees a group plan of life, accidental death and dismemberment
(AD&D), and comprehensive medical expense insurance benefits. It
is the only Air Force-sponsored group plan for which employing
NAFIs are authorized to contribute on behalf of NAFI employees.
It may include a qualified Health Maintenance Organization (HMO)
alternative plan, however, upon AFWB (Air Force Welfare Board)
approval and completion of a contract between the HMO and the
affected NAFIs through the appropriate contracting officer. If an
HMO alternative plan proposal is received, the proposal is
referred to AFWB (NAF Insurance) for further advice and guidance.
The Agency contends that there is a compelling need for this
provision under section 2424.11(a) of the Authority's Rules and
Regulation. /4/
The Agency makes three interrelated arguments to support its
contention that AFR 34-3, Vol. VIII, Paragraphs 17e and 4-1, is
essential to the continued efficiency and viability of the NAFI system.
The Agency argues that the regulation is necessary to (1) control
operating costs; (2) preserve administrative efficiency; and (3)
preserve employee morale and mobility. In support of these arguments,
the Agency argues that it operates a centrally administered group health
insurance program that is cost efficient and manageable. The Agency
claims that the proposal would result in a multitude of health plans,
resulting in an increase of cost and employee dissatisfaction. Any
increase in operating costs undermines the ability of the NAFI system to
provide MWR activities to military personnel, the Agency argues. The
Agency further asserts that finding the proposals negotiable would
create the potential for more than 160 rate structures for employee
health benefits premiums throughout the Air Force, the administration of
which would be inefficient and error-prone so as to negatively affect
employee morale and, consequently, the Agency's ability to retain
employees. Finally, the Agency contends that the regulation is
necessary to avoid morale and mobility problems which would result from
similarly situated NAFI employees receiving different compensation.
For the following reasons, we reject each of the Agency's three
arguments in support of its assertion of compelling need for AFR 34-3,
Vol. VIII, Paragraphs 1-7e and 4-1.
First, we reject the Agency's argument that there is a compelling
need for AFR 34-3, Vol. VIII, paragraphs 1-7e and 4-1 because the
regulation is necessary to control operating costs. The logical
extension of the Agency's argument is that any agency regulation that
allows an agency to control operating costs should bar negotiations over
otherwise negotiable conditions of employment. As we discussed in
conjunction with the Agency's budget arguments, many proposals
concerning conditions of employment will affect an agency's "operating
costs."
Financial considerations are relevant to determining whether an
agency regulation satisfies the compelling need criterion set forth at
section 2424.11(a). However, other considerations are also pertinent.
The wording and legislative history of the Statute support our
conclusion that a broad balancing of factors is appropriate in
evaluating compelling need assertions. It is clear that Congress
intended a regulation to bar negotiations only on narrow grounds. Cost
factors alone do not justify finding a compelling need for an agency
regulation. Lexington-Blue Grass Army Depot, Lexington, Kentucky and
American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA
50 (1986).
Our conclusion that cost factors alone do not justify finding a
compelling need for an agency regulation is consistent with the holding
of the U.S. Court of Appeals for the District of Columbia Circuit in
American Federation of Government Employees v. Federal Labor Relations
Authority, 785 F.2d 333, 337-38 (D.C. Cir. 1986) (per curiam), where the
court stated the following:
(E)conomic hardship is a fact of life in employment, for the
public sector as well as the private. Such monetary
considerations often necessitate substantial changes. If an
employer was released from its duty to bargain whenever it had
suffered economic hardship, the employer's duty to bargain would
practically be non-existent in a large proportion of cases.
Congress has not established a collective bargaining system in
which the duty to bargain exists only at the agency's convenience
or desire, or only when the employer is affluent.
In addition, even assuming that a finding of compelling need could be
based on cost alone, we reject the Agency's contention that the costs
associated with the utilization of a health benefit plan other than one
sponsored by the Air Force plan would be so enormous that the NAF system
would be unable to meet its mission to provide MWR programs in an
effective and efficient manner. The only costs alleged to result from
the utilization of a different health benefits plan at Langley Air Force
Base are administrative expenses for administering the additional plan.
The Agency provides no substantiation for its assertions that the
proposal will result in additional administrative expenses. In the
absence of substantial factual support for its claims, these assertions
cannot form a basis for finding a compelling need for the Agency's
regulation. See, for example, FDIC, Madison Region, 21 FLRA at 881 (an
agency must provide facts to support a compelling need claim). The
Agency's claim that over 160 plans will emerge as a result of Proposal 2
is speculative and not a basis for finding a compelling need for the
regulations.
Second, the Agency has not shown that AFR 34-3, Vol. VIII, paragraphs
1-7e and 4-1, is essential to the preservation of administrative
efficiency. The Agency's arguments that the proposal would result in
errors in the administration of the employee health benefits system that
would adversely affect employee morale and the Agency's ability to
retain employees are rejected. There is nothing in the record to
indicate that such errors could not be avoided. Moreover, as noted
above, the Agency's argument that the proposal would result in a
multitude of plans is merely speculative. Therefore, we reject the
Agency's argument that these provisions of AFR 34-3 are essential to the
preservation of administrative efficiency.
Third, we reject the Agency's contention that uniformity in its
health benefits plan is essential to employee morale and, consequently,
to maintaining an efficient and effective work force. In fact, the
regulation permits the utilization of an HMO plan, which undercuts an
argument that the current health benefits system is uniform in nature.
See Air Logistics Center, 36 FLRA at 910. Moreover, the benefit
structure currently provided for NAF employees is not uniform. Service
Employees International Union, Local 556 and U.S. Department of the
Navy, Navy Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 338 (1991) (Navy
Exchange). There is nothing in the record to establish that the
different components of DoD administer uniform benefit programs.
Indeed, the prevailing rate pay system produces differences in the pay
NAFI employees receive, based on locality. In view of these existing
differences within the NAFI pay and benefits programs, the Agency has
not demonstrated that its regulation is essential, as opposed to helpful
and desirable, to the preservation of employee morale and mobility.
Additionally, the Agency fails to take into account the potential that
more affordable health benefits may have for positive effects on
employee morale, retention, and productivity.
Based on the foregoing, we find that the Agency has failed to
demonstrate that the provision of AFR 34-3 that prohibits employing
NAFIs from contributing to a group plan that is not sponsored by the Air
Force is essential, as distinguished from helpful or desirable, to the
accomplishment of its mission or the execution of its functions in a
manner consistent with the requirements of an effective and efficient
Government.
b. DoD Manual 1401.1-M, Chapter III and Appendices B and E and AFR
40-7, Paragraph 14-2
DoD 1401.1-M, Chapter III and Appendices B and E administratively
extend certain principles of the Prevailing Rate Systems Act, which
applies to the CT employees, to the AS and PS hourly employees,
establish a uniform system for UA salaried employees, and thereby create
a uniform comprehensive administrative pay system for all NAF employees.
AFR 40-7, Paragraph 14-2, acknowledges DoD's administrative extensions
of prevailing rate principles to AS and PS positions and provides
instructions implementing DoD's regulations.
The Agency alleges that Proposal 3 conflicts with DoD 1401.1-M, and
raises three arguments to support its contention that DoD 1401.1-M,
Chapter III, Appendices B and E are essential to the continued
efficiency and viability of the NAFI system. The Agency argues that the
regulations are necessary to (1) preserve the uniform pay system which
was mandated by Congress; (2) control costs; and (3) ensure equitable
treatment of NAF employees. For the reason stated below, the Authority
rejects the Agency's argument that a compelling need exists for these
regulations.
Contrary to the Agency's claim, we find that there is not a
compelling need for a uniform pay system for Langley Air Force Base NAF
employees. The Agency's argument is primarily based on its contention
that Congress mandated that there be a uniform pay system among NAF
employees. However, the Authority rejected a similar argument in Navy
Exchange. In finding that the agency's desire to have a uniform benefit
program did not justify a finding that there was a compelling need for a
regulation that precluded intermittent employees from participation, the
Authority rejected the agency's argument that the only way to meet the
congressional mandate to create an all-NAF personnel system is to
uniformly provide the same level of compensation and fringe benefits to
similar categories of NAFI employees wherever they may be assigned. 37
FLRA at 341-42. There is no basis in the Authority's rules to support a
finding of a compelling need for a regulation on a claimed need to
establish a uniform personnel policy where there has been no
demonstration that uniformity is essential to the accomplishment of the
agency's mission. Id. at 338.
We disagree with the Agency that to allow the Union to negotiate over
pay matters would permit third parties, i.e. an interest arbitrator or
the FSIP, to set pay practices contrary to prevailing rate principles.
In National Treasury Employees Union, Chapter 83 and Department of the
Treasury, Internal Revenue Service, 35 FLRA 398, 414-15 (1990), we
concluded that "the possibility that the FSIP may, in fulfilling its
mandated role to resolve negotiation impasses, impose a proposal on
parties provides no basis for finding that proposal nonnegotiable"
because "(s)uch action by the FSIP is wholly consistent with the
collective bargaining process provided by Congress under the Statute."
In addition, as previously stated, financial considerations alone do
not justify finding a compelling need for an agency's regulation.
Second, the Agency has not shown that, even if uniformity were essential
to the functioning of the Agency, it could not accomplish this objective
by means other than these regulations. Finally, we reject the Agency's
argument that because the regulations ensure equitable treatment of its
employees, both within each NAFI and across NAFI lines, they thereby
promote its recruitment and retention efforts. The Agency has not
demonstrated that pay parity among local NAF employees and with the
private sector would ensure a reasonable number of qualified applicants
for Federal employment. Nor has it established that the application of
prevailing rate principles is the only way by which the Agency may
attract qualified applicants or that retention of its current workforce
would be significantly affected if pay matters for two groups of those
employees were subject to negotiations. Indeed, as a result of
collective bargaining over such matters, those bargaining unit positions
could become more attractive. Accordingly, the Agency has not
demonstrated that its regulation is essential, as opposed to helpful and
desirable, to the preservation of employee morale and mobility. /5/
4. Application to Employees Covered Under the Prevailing Rate
Systems Act
The Authority has held that all aspects of pay-setting under the
prevailing rate system are specifically provided for by law and,
therefore, are excluded from the definition of conditions of employment
under section 7103(a)(14)(C) of the Statute. American Federation of
Government Employees, AFL-CIO and Department of Defense, Department of
the Army and Air Force, Headquarters, Army and Air Force Exchange
Service, Dallas, Texas, 32 FLRA 591, 599-600 (1988) (opinion of
then-Member McKee). The Agency alleges, and the Union does not dispute,
that the Prevailing Rate Systems Act applies to CT employees employed at
the Langley Air Force Base. The Agency also asserts, without
contradiction, that these employees are not covered by section 9(b) of
the Prevailing Rate Systems Act and section 704 of the Civil Service
Reform Act. To the extent that Proposal 3 applies to employees covered
under the Prevailing Rate Systems Act, who are not covered by section
9(b) and section 704, the proposal is nonnegotiable and not within the
duty to bargain.
5. Summary
Proposals 2 and 3 concern conditions of employment; do not interfere
with the Agency's right to determine its budget under section
7106(a)(1); and do not conflict with agency regulations for which a
compelling need exists. To the extent that Proposal 3 applies to CT
employees, however, it is nonnegotiable because it is inconsistent with
the Prevailing Rate Systems Act. With that exception, Proposals 2 and 3
are within the duty to bargain.
V. Proposal 4
Child Care, Section 1. The Employer will provide free child care
services for unit employees children when the employee is in a
duty status.
A. Positions of the Parties
1. The Agency
In its statement of position, the Agency contends that the proposal
is nonnegotiable under section 7117(a) of the Statute because the
proposal conflicts with legal limitations on the use of funds for child
care under 10 U.S.C. Section 2809. The Agency asserts that the proposal
could require the Agency to contract for the construction, management
and operation of a facility for child care services. Therefore, the
Agency argues, the proposal ignores the limitations imposed in 10 U.S.C.
Section 2809, which requires the Secretary of Defense to include a
proposed facility in the DoD budget, to justify the need for the
facility and to submit an economic analysis demonstrating the project's
cost effectiveness. The Agency relies upon a Comptroller General
decision, Comp. Gen. No. B-222989 (June 9, 1988), to support its
contention.
The Agency further contends that the proposal conflicts with an
agency regulation for which there is a compelling need. Paragraph 4g of
Air Force Regulation 215-1, provides as follows:
No one, including MWR assigned personnel, is authorized individual
discounts on MWR merchandise, services, or fees, unless
specifically authorized by Air Force 215 series publications.
(For example, meals may be provided at reduced prices for open
mess employees as specified in AFR 215-11.) This does not preclude
special sales or promotions conducted by an MWR activity for all
its authorized patrons.
The Agency argues that under this regulation, it could not provide
free child care services to bargaining unit employees, because to do so
would create "fiscal chaos." Statement of position at 42. Thus, relying
upon the cost arguments raised in regard to Proposals 2 and 3, the
Agency asserts that there is a compelling need for the regulation. The
Agency further argues there is a compelling need based on the necessity
to maintain employee morale among nonbargaining unit employees and to
attract the best qualified personnel for those positions.
In a supplemental brief, the Agency argues that pursuant to the
Military Child Care Act of 1989 (Child Care Act), 103 Stat. 1589-1594
(1989), which was enacted subsequent to the Agency's filing of its
initial statement of position, parental fees must be charged for
children attending military child care centers. It argues that the
Child Care Act mandates that the Secretary of Defense prescribe
regulations establishing parental fees for the attendance of children at
military child development centers and requires that those regulations
be uniform for the military departments.
The Agency also asserts that Proposal 4 conflicts with an Agency
policy for which there is a compelling need pursuant to section 7117(
a)(2) of the Statute and section 2424.11(a) and (c) of the Authority's
Rules and Regulations. The Agency asserts that the child care centers
are essential to the Agency's military mission and the execution of its
MWR functions. The Agency argues that its policy, set forth in DoD
Instruction 6060.2, provides for a sliding fee scale based upon total
family income and that because it guarantees the funds necessary to
carry out the vital community activity of child development for military
personnel, the policy ensures that such services will be provided and
that they will be provided in the most effective and efficient manner
within the available resources. Moreover, the Agency contends that the
Agency policy involved here was specifically mandated by congressional
enactment of the Child Care Act, which requires that such regulations be
prescribed establishing fees to be charged for the attendance of
children at military child development centers.
2. The Union
The Union argues that the Authority has previously found that an
agency must bargain over a proposal to provide space and facilities for
a day care center for children of bargaining unit employees. In
support, the Union cites National Treasury Employees Union and Family
Support Administration, Department of Health and Human Services, 30 FLRA
677 (1987) (the Authority rejected the agency's argument that 20 U.S.C.
Section 2564 precluded negotiation and found that the agency was
obligated to negotiate to the extent that it had discretion); American
Federation of Government Employees, AFL-CIO Local 32 and Office of
Personnel Management, Washington, D.C., 6 FLRA 423 (1981) (the Authority
found that the proposal was not nonnegotiable simply because the agency
needed to get the approval for the expenditure from OMB); and American
Federation of Government Employees AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980). The
Union also relies upon the Comptroller General's decision in Comp. Gen.
Dec. No. B-222989 (June 9, 1988).
In response to the Agency's contention that the proposal is
inconsistent with the Child Care Act, the Union argues that the Child
Care Act grants the Secretary of Defense the authority to reduce child
care fees for parents who participate in the parent participation
program and that as the Secretary has the discretion to lower rates, the
Agency has the discretion to provide free child care services. In
addition, the Union argues that the proposal is not inconsistent with
any Government-wide rule or regulation. It asserts that inasmuch as the
Act permits the Secretary to lower rates, the compelling need argument
should be dismissed.
B. Analysis and Conclusions
1. The Military Child Care Act
The Child Care Act regulates the operation of all military child care
centers. Section 1501(b)(1) of the Child Care Act defines those centers
as "a facility on a military installation (or on property under the
jurisdiction of the commander of a military installation) at which child
care services are provided for members of the Armed Forces or any other
facility at which such child care services are provided that is operated
by the Secretary of a military department." Inasmuch as the language of
section 1501(b)(1) specifically limits the Child Care Act's coverage to
facilities at which child care services are provided for members of the
Armed Forces, child care centers fall within the ambit of the Child Care
Act if they provide services to members of the Armed Forces. This
conclusion is consistent with other references in the Child Care Act
that apply exclusively to military personnel. For example, the term
"child care fee receipts" is defined under section 1501(a)(4) as those
"fees paid by members of the Armed Forces for child care services."
Moreover, language in the congressional reports indicated the concern of
Congress to address the child care problems facing military personnel.
H.R. Rep. No. 121, 101st Cong., 1st Sess., Title VII at 307-08,
reprinted in 1989 U.S. Code Cong. & Admin. News 928-29; H.R. Conf. Rep.
No. 331, 101st Cong., 1st Sess., Title V, reprinted in 1989 U.S. Code
Cong. & Admin. News 1119.
It is not clear from the record whether or not Proposal 4 was
intended to require the Agency to provide free child care services for
civilian employees' children at centers that are operated for members of
the Armed Forces. Therefore, to the extent that Proposal 4 is not
intended to require the Agency to provide free child care services at
facilities where such services are being provided for members of the
Armed Forces, it is not inconsistent with the Child Care Act.
To the extent that the proposal is intended to require the Agency to
provide free child care services for civilian employees at facilities
where such services are provided for members of the Armed Forces,
however, it is inconsistent with the Child Care Act. It is clear that
the Child Care Act requires, and Congress intended, that fees be charged
for child care services. The relevant provisions of the Child Care Act
state:
SEC. 1504 PARENT FEES
The Secretary of Defense shall prescribe regulations
establishing fees to be charged parents for the attendance of
children at military child development centers. Those regulations
shall be uniform for the military departments and shall require
that, in the case of children who attend the centers on a regular
basis, the fees shall be based on family income.
SEC. 1506. PARENT PARTNERSHIPS WITH CHILD DEVELOPMENT CENTERS
. . . . . . .
(b) Parent Participation Programs. -- The Secretary of Defense
shall require the establishment of a parent participation program
at each military child development center. As part of such
program, the Secretary of Defense may establish fees for
attendance of children at such a center, in the case of parents
who participate in the parent participation program at that
center, at rates lower than the rates that otherwise apply.
Thus, pursuant to the plain language of the Child Care Act, the
Secretary of Defense must establish fees to be charged parents for
attendance at military child development centers and shall require, for
children who regularly attend the centers, that fees be based on family
income. The regulations must also be uniform for all military
departments. The only exception to the requirement that fees be based
on family income for children who regularly attend the centers is that
fees may be lowered for children whose parents participate in a parent
participation program.
Proposal 4 precludes the Agency from charging fees for child care
service for children of bargaining unit employees who are in a duty
status. Due to the uniformity requirement of the Child Care Act,
Proposal 4 would thus require the Agency to provide free child care
service for all children attending military child care centers whose
parents are in a duty status. Providing free child care services to all
parents who are in a duty status and uniformly extending those free
services to all children at the centers would be inconsistent with the
requirement that regulations be prescribed to establish fees for child
care services for children of military personnel based on family income.
Therefore, Proposal 4, to the extent that it requires free child care
services at centers operated for members of the Armed Forces, is
inconsistent with the Child Care Act.
2. 10 U.S.C. Section 2809
We reject the Agency's contention that the proposal is inconsistent
with 10 U.S.C. Section 2809 because the proposal ignores the requirement
in that statute that the Agency may not enter into a contract for the
construction, management and operation of child care facilities without
congressional approval. 10 U.S.C. Section 2809 provides that the
Secretary of the Air Force may enter into contracts for the
construction, management or operation of a facility on or near a
military base for child care services if the Secretary has identified
the proposed project in the budget submitted to Congress and has
determined that the facility can be more economically provided under a
long-term contract than by conventional means. There is nothing in the
proposal or in the record that would preclude the Agency from making
these determinations.
The fact that the Agency might be required to obtain prior budgetary
approval in order to implement the proposal does not render the proposal
nonnegotiable. The Authority has held that section 7114(b)(5) of the
Statute provides that the duty of an agency to negotiate in good faith
includes the obligation "to take such steps as are necessary to
implement" any agreement reached between the parties. American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management Washington, D.C., 6 FLRA 423 (1981) (OPM). Thus,
even though an agency might be unable to directly or completely
implement an agreement reached through negotiations because of a
limitation on its discretion, an otherwise negotiable proposal would not
necessarily be outside the duty to bargain. Rather, in those
circumstances the agency would be obligated to take such steps as are
within its discretion, including making an appropriate request to third
parties, to implement the agreement. Accordingly, the Authority rejects
the Agency's contention that the proposal conflicts with 10 U. S.C.
Section 2809.
We also reject the Agency's contention that Proposal 4 is
inconsistent with the Comptroller General's decision in Comp. Gen. No.
B-222989 (1988) because the proposal ignores the limitations imposed by
that decision on the use of appropriated funds for child care
facilities. As noted in that decision, the Secretary of the Air Force
has authority under section 139 (of Public L. No. 99-190 Stat. 1185,
1323 (1985)) codified at 40 U.S.C. Section 490B (Supp. III 1985), to
"provide support for child care centers for the children of civilian
employees by authorizing the allotment of space under his control in
government buildings, . . . and may do so without charge. The support
provided may include the cost of making space suitable for child care
facilities, including the cost of renovation, modification or expansion
of existing government-owned or leased space." Comp. Gen. Dec. at 1. In
that decision, the Comptroller General further noted that the
legislative history of section 139 makes it clear that the intent of the
law was to encourage the General Services Administration and user
agencies to make free space and services for day care facilities more
rapidly available. Although section 139 precludes the Agency from
leasing space solely for child care facilities, there is nothing in the
proposal that requires the Agency to do so. Accordingly, we find that
Proposal 4 is not inconsistent with the cited Comptroller General
decision.
3. Agency Regulations for Which a Compelling Need Exists
The Agency argues that the proposal is inconsistent with Agency
policy for which a compelling need exists under sections 2424.11(a) and
(c) of the Authority's Rules and Regulations. The policy that is
alleged to be inconsistent with the proposal is set forth in a DoD
Memorandum entitled Implementing Guidance Required by the Military Child
Care Act of 1989, dated March 23, 1990. While the policy implementing
the requirements of the Child Care Act appears to apply only to military
child care centers, these regulations appear to modify preexisting
regulations that governed all child care centers. To the extent that
the regulations apply to child care centers operated for civilian
employees, we find that there is no compelling need for the regulations.
The DoD Memorandum states, in relevant part, as follows:
. . . . . . .
D. Child Development Center Fees:
1. Developmental care shall be provided in child development
center programs for reasonable fees and shall be made affordable
to lower income families and hardship cases.
2. A sliding fee scale based upon total family income will be
established for use at child development center programs. This
fee scale shall be used when children attend the child development
center programs on a regular basis, including those regularly
participating in scheduled part-day programs. Fees will include
all meals.
. . . . . . .
b. Family income will be verified on an annual basis and
individual fees adjusted accordingly. The adjusted gross income
as reported on the most recent Federal Income Tax Return will be
used to determine fees. Parents who are not willing to divulge
family income will be required to pay the maximum fees.
Therefore, under the Agency regulations, child care fees are based
solely upon family income and not on the duty status of the parent. The
one exception, which is not applicable under the terms of Proposal 4, is
for parents who are a part of a parent participation program. Inasmuch
as the proposal requires the elimination of fees based on the duty
status of the parent, as opposed to the family income, it is
inconsistent with these Agency regulations.
The question thus becomes whether there is a compelling need for the
regulations. Under section 2424.11(a) of the Authority's Rules and
Regulations, a compelling need exists for an agency rule or regulation
if "(t)he rule or regulation is essential, as distinguishable from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national subdivision in
a manner which is consistent with the requirement of an effective and
efficient government."
We recognize the importance of child care services and the need to
have the necessary funding for those services. Compelling need is not
established based on the desirability of a regulation, however.
American Federation of Government Employees, Local 1501 and U.S.
Department of the Air Force, Airlift Military Command, McChord Air Force
Base, Washington, 38 FLRA 1515, 1522 (1991) (Airlift Military Command).
Section 2424.11(a) of the Authority's Rules and Regulations specifically
provides that, to support a funding of compelling need, the regulation
must be "essential," as distinguished from helpful or desirable, to the
accomplishment of the mission of the Agency. There is nothing in the
record to indicate that additional funds could not be acquired to
replace parental fees in order to meet the necessary financial
requirements to properly operate a child care center for NAF employees
only.
Thus, the Agency has failed to demonstrate how the regulation is
essential to the fulfillment of the Agency's mission. Therefore, we
conclude that there is no compelling need for the regulations under
section 2424.11(a) of the Authority's Rules and Regulations.
Under section 2424.11(c) of the Authority's Rules and Regulations, a
compelling need exists for an agency rule or regulation if "(t)he rule
or regulation implements a mandate to the agency or primary national
subdivision under law or other outside authority, which implementation
is essentially nondiscretionary in nature." See generally, Navy
Exchange, 37 FLRA at 341-42. In support of its claim that its
regulation meets the requirement for compelling need set forth in
section 2424.11(c), the Agency argues that in the Child Care Act
Congress mandated that regulations be prescribed establishing fees for
child care services based on family income at centers operated for
members of the Armed Forces.
While we find that Congress had such a mandate for child care centers
operated for members of the Armed Forces, there is nothing in the record
or the Child Care Act to support a finding that Congress had a similar
mandate for centers not operated for members of the Armed Forces. As
previously noted, Proposal 4 can be interpreted to apply only to child
care centers not operated for members of the Armed Forces. Accordingly,
we conclude that there is no compelling need under section 2424.11(c) of
the Authority's Rules and Regulations for the Agency's policy requiring
fees for child care services at centers operated for non-members of the
Armed Forces. /6/
Finally, for the reasons stated in regard to Proposals 2 and 3, the
Authority rejects the Agency's argument that there is a compelling need
for AFR 215-1 based on the costs associated with the proposal. As
noted, cost factors alone do not justify a compelling need for an agency
regulation. In addition, as previously noted, there is no reason to
conclude that the Agency could not obtain the necessary funding for
child care services from other sources. Moreover, we find speculative
and unsupported the Agency's arguments that the proposal would result in
decreased morale among nonunit employees or an inability to attract the
best qualified people to fill those jobs. See Airlift Military Command,
38 FLRA at 1523.
Accordingly, Proposal 4, to the extent that it applies to child care
centers operated for non-members of the Armed Forces, is negotiable and
thus is within the duty to bargain. However, to the extent that it
applies to child care centers operated for members of the Armed Forces,
it is inconsistent with the Child Care Act and is outside the duty to
bargain.
VI. Proposal 5
Miscellaneous, Section 16. Management agrees that a 20% service
charge will be applied on all Special Functions. All employees
who work the Special Functions will receive 15% of the service
charge. Waiters and waitresses will receive 90% of the above
service charge. All other employees who work the Special Function
will receive 10%.
A. Positions of the Parties
The Agency argues that the proposal is not specific and delimited in
form and content so as to permit the Authority to determine whether it
is negotiable and that the proposal is "internally inconsistent." Agency
statement of position at 44. The Agency argues that insofar as the
Union has failed to create a record upon which the Authority can render
a decision, the petition should be dismissed with respect to this
proposal. The Agency further argues that the proposal (1) does not
concern a condition of employment; (2) is inconsistent with the
Statute; (3) violates the Prevailing Rate Systems Act, and the FPM
Supplement 532-2; and (4) interferes with management's rights to
determine its budget and to determine the Agency's mission.
The Union explained that the proposal requires the Agency to charge
its patrons a 20 percent service fee for special functions, of which 5
percent would be retained by the Agency and the remainder would go to
the employees who worked on the function, distributed as follows:
waiters and waitresses would receive 90 percent of the employees' share
of the service fee; and the other workers would receive the remaining
10 percent. The Union argues that the Fair Labor Standards Act permits
agency discretion as to the "tip offset" deduction and, thus, that the
matter is negotiable. The Union further argues that the proposal will
not affect in any way the existing special schedules or "the executive
and other pay plans approved by the ASD (FM&P)." Union's response at 10.
B. Analysis and Conclusions
Based on the language of the proposal, its intended meaning, as
explained by the Union, and the record as a whole, we find that Proposal
5 is sufficiently specific and delimited to enable us to provide the
parties with a negotiability determination. Thus, it is clear from the
Union's stated intent that under the proposal the Agency would add a 20
percent surcharge to its charge for all special functions, all but 5
percent of which would be paid, as specified in the proposal, to the
employees who worked on that special function.
We conclude that under the Antilles test, discussed above, the first
sentence of Proposal 5 is not a condition of employment because it does
not concern a matter that has a sufficient nexus to the employment
relationship or work situation of the unit employees. See, for example,
National Association of Government Employees, Local R1-134 and U.S.
Department of the Navy, Naval Underwater Systems Center, Newport, Rhode
Island, 38 FLRA 589, 596-98 (1990). Thus, although the proposal in its
entirety seeks to benefit unit employees who work on special functions
by providing them with additional compensation for time spent in such
work, the first sentence of the proposal requires the Agency to increase
the prices charged for such functions by 20 percent. There is no direct
connection between the prices the Agency charges for its services and
the work situation or employment relationship of the bargaining unit
employees. Antilles, 22 FLRA at 237. Rather, the Agency's pricing
mechanism is integrally related to its business of providing affordable
services to the personnel of the Armed Forces through its MWR program, a
matter that is solely within the Agency's control. Although the second
and third sentences of Proposal 5, standing alone, appear to involve a
condition of employment within the meaning of Antilles, those sentences
are inextricably intertwined with the first sentence of the proposal.
Accordingly, we conclude that the entire proposal is nonnegotiable.
In finding this proposal to be nonnegotiable, we note that it is
clearly distinguishable from Proposal 2 in American Federation of
Government Employees, AFL-CIO, Local 987 and Headquarters, Warner Robins
Air Force Logistics Command, Robins Air Force Base, Georgia, 8 FLRA 667
(1982), reversed as to other matters sub nom. United States Air Force v.
FLRA, 727 F.2d 1502 (11th Cir. 1984). In that case, the Authority found
negotiable a proposal concerning the tip offset percentage the agency
could establish for tipped employees. That case, in contrast to the one
before us, did not concern the agency's pricing mechanism or any other
matter relating solely to its managerial prerogatives. Indeed, in that
case the Authority held that the agency had been granted sufficient
discretion under the Fair Labor Standards Act to comply with the
proposal. Further, regulations promulgated by the Office of Personnel
Management in 1990 specifically require negotiations over tip offsets
where tipped employees are represented by a labor organization holding
exclusive recognition. 5 C.F.R. Section 532.283(d) (1991).
Accordingly, we find that Proposal 5, read in its entirety, does not
involve a condition of employment of bargaining unit employees under the
Statute, and we will dismiss the petition as to that proposal. In so
holding, we find it unnecessary to address the other arguments made by
the Agency.
VII. Order
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain concerning Proposals 1 and 2, Proposal 3, to the extent
that it does not involve employees covered under the Prevailing Rate
Systems Act, and Proposal 4, to the extent it does not require free
child care services at centers operated for members of the Armed Forces.
/7/ The petition is dismissed as to Proposal 5.
FOOTNOTES
(1) In citing the Prevailing Rate Act the Agency apparently is
referring to the Prevailing Rate Systems Act.
(2) In its supplemental statement, the Agency states that the
appropriate budget to be considered in this case is that of the NAFIs at
Langley Air Force Base.
(3) We express no view on the continued viability of the second
budget test or on whether the "compensating benefits" portion of the
test should include monetary benefits only. See, for example, Norfolk
Naval Shipyard, 37 FLRA 938, 949 n.2 (1990). However, as we find below,
the Agency has failed to satisfy either of the tests set forth in
Wright-Patterson.
(4) The Agency statement of position failed to note that AFR 34-3,
Vol. VIII, paragraph 4-1 was amended to include among the authorized Air
Force-sponsored group plans qualified local health maintenance
organizations. In a supplemental statement of position filed by the
Agency, the Agency argues that the amendment is irrelevant and, if
relevant, strengthens its argument that there is a compelling need for
the regulation to limit enrollment in other plans.
(5) For the reasons set forth in section IV.B.4. of this decision,
the Authority finds that Proposal 3 is nonnegotiable to the extent that
it applies to employees covered by the Prevailing Rate Systems Act (CT
employees). Based on this finding, we need not address the Agency's
contention that DoD 1401.1-M implements, with regard to CT employees, a
mandate under law that is essentially nondiscretionary in nature.
(6) To the extent that Proposal 4 was intended to include centers
operated for military personnel, we have found it to be inconsistent
with the Child Care Act. Inasmuch as it would be inconsistent with that
law, it is unnecessary to address the issue of whether it is
inconsistent with an agency regulation for which a compelling need
exists.
(7) In finding that these proposals are within the duty to bargain,
the Authority makes no judgment as to their merits.
40 FLRA 111
40 FLRA NO. 14
Dept. of the Air Force, Langley Air Force Base, Virginia and NAGE,
Local R4-26, Case No. 3-CU-00021 (Decided April 10, 1991)
SUBJECT MATTER INDEX ENTRIES
APPLICATION FOR REVIEW
PETITION FOR CLARIFICATION
TEMPORARY PART-TIME AND INTERMITTENT EMPLOYEES
VARIABLE SCHEDULE EMPLOYEES
MEANINGFUL CHANGE IN DUTIES
DIGEST NOTES
The Union sought review of the Regional Director's Decision and Order
wherein he concluded that the evidence failed to establish a "meaningful
change" sufficient to justify the inclusion in the existing bargaining
unit of former temporary part-time and intermittent employees who had
converted to "variable schedule" (VS) employees. The Director found
that while their employment category had changed, the record did not
indicate that any significant aspect of these employees' job duties,
functions or their entitlement to fringe benefits had changed. Further
the RD found that the record failed to establish that the VS employees
have worked significantly more hours per pay period than the antecedent
categories of employees who had been excluded from the unit since the
original certification in 1973. Accordingly the RD concluded that the
VS employees should continue to be excluded from the certified unit.
The Authority concluded that compelling reasons do not exist for
granting review of the RD's decision, finding that the Union's
contentions constitute mere disagreement with the RD's factual findings
and conclusions that are based on record evidence developed at the
hearing, and his application of Authority precedent to those facts. The
Authority noted that the RD's decision does not preclude the inclusion
of the VS employees in the unit at some point in the future, but that
the proper procedure for determining the question concerning
representation would be an RO petition.
Case No. 3-CU-00021
U.S. DEPARTMENT OF THE AIR FORCE, LANGLEY AIR FORCE BASE, VIRGINIA
(Activity)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-26
(Labor Organization/Petitioner)
ORDER DENYING APPLICATION FOR REVIEW
April 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed
by the Petitioner (Union) under section 2422.17(a) of the Authority's
Rules and Regulations. The Union seeks review of the Regional
Director's (RD) Decision and Order on Petition for Clarification of Unit
(CU). The RD dismissed the CU petition. The Activity filed an
opposition to the Union's application for review.
For the following reasons, we deny the Union's application for
review.
II. Background
Since September 11, 1973, the Union has been certified as the
exclusive representative of certain non-appropriated fund (NAF)
employees at the Activity. On January 15, 1980, in Case No. 3-AC-4, the
certified unit was amended as follows:
INCLUDED: All non-supervisory regular full-time and regular
part-time nonappropriated fund employees serviced by the Langley
Air Force Base Central Civilian Personnel Office, including
off-duty military occupying these positions.
EXCLUDED: Temporary full-time and temporary part-time
employees, intermittent other part-time, and intermittent on
call-employees, nonappropriated fund employees of the Army and Air
Force Exchange and Motion Picture Service, employees engaged in
Federal personnel work in other than a purely clerical capacity,
professionals, management officials, and supervisors and guards as
defined in Section 7103 of Title VII, Public Law 95-454.
RD's decision at 2.
On August 6, 1989, the Activity implemented revised Air Force
Regulation (AFR) 40-7 that established the "variable schedule" (VS)
category of employees and abolished the temporary part-time and
intermittent employee categories. By its petition, filed on March 5,
1990, the Union sought to clarify the existing bargaining unit to
include the VS employees. The Union contended that the VS employees
have a reasonable expectancy of future employment, asserting in this
regard that VS employees have been used to replace part-time employees
who are part of the bargaining unit. It further contended that VS
employees have a community of interest with unit employees.
The Activity opposed the inclusion of VS employees in the unit,
contending that they do not share a community of interest with unit
employees.
III. RD's Decision
The RD made the following factual findings from the evidence
presented: (1) the excluded categories of temporary full-time (TFT) and
temporary part-time (TPT) employees were guaranteed 35-40 hours per week
and 20-35 hours per week, respectively, for no more than 12 months and
the intermittent employees were essentially not guaranteed any hours of
work per week and were limited to working less than 20 hours per
workweek; (2) the unrevised AFR 40-7 provided that on occasion, it may
be necessary to request an intermittent employee to work extra hours;
(3) as the result of the revised AFR 40-7, the TPT and intermittent
employees were converted to VS employees, who are employed less than 35
hours a week and have hours of work and workdays subject to frequent
change without a change in employment category; (4) VS employees work
at the same location, perform the same work, share identical supervision
and similar working conditions as unit employees although they are not
eligible for sick and annual leave, retirement benefits and health and
life insurance; (5) VS employees are not guaranteed any hours of work
per week and they do not have a regular work schedule unless they are
called to fill in for a regular employee on planned leave; and (6) at
the time of the hearing, of the 594 NAF employees employed by the
Activity, 300 were regular employees, 287 were VS employees and seven
were temporary full-time employees.
The RD further found that the record showed that since the conversion
to the VS employment category, the job duties and working conditions of
the converted VS employees have not changed. He found that the main
difference under the revised AFR 40-7 is that while the VS employees are
not guaranteed any hours of work per week, as were former TPT and some
intermittent employees, they are now permitted to work up to 35 hours
per week. Also, VS employees do not have set work schedules, as did TPT
and some intermittent employees. Thus, the RD found that the VS
employees may experience more frequent changes in their work hours than
they did prior to their conversion. He also found that the record
evidence failed to establish that VS employees work significantly more
or fewer hours than those worked by the antecedent categories of TPT and
intermittent employees who were excluded from the unit. Further, the RD
found that although about ten VS employees who worked a continuing
regular schedule were converted to regular positions in the unit, such a
conversion was not required under the revised AFR 40-7 as it had been
under the earlier version of AFR 40-7.
The RD noted that "(w)hile there are many factors present which would
support a finding that VS employees should be included in the existing
unit, the Authority has held that in the absence of a demonstration that
the affected employees have undergone meaningful changes in their job
duties, a clarification of unit petition is not appropriate for
including employees who have been specifically excluded from the unit."
Id. at 5. For support, the RD cited Authority decisions in National
Guard Bureau, Massachusetts Air National Guard, Barnes Municipal
Airport, 4 FLRA 83 (1980), and Federal Trade Commission, 35 FLRA 576
(1990) (FTC).
The RD concluded that the evidence failed to establish a "meaningful
change" sufficient to justify the inclusion in the existing bargaining
unit of the former TPT and intermittent employees who had been converted
to VS employees. He found that while their employment category has
changed, the record did not indicate that any significant aspect of
these employees' job duties, functions or their entitlement to fringe
benefits has changed. Further, the RD found that the record failed to
establish that the VS employees have worked significantly more hours per
pay period than the antecedent categories of employees who had been
excluded from the unit since the original certification in 1973.
Under those circumstances, the RD found that because "the former TPT
and intermittent employees have been historically excluded from the unit
and the evidence failed to establish that the affected employees have
undergone meaningful changes in their employment status since their
conversion to the VS employment category, . . . inclusion of the VS
employees in the existing unit is not warranted through a unit
clarification proceeding." RD's decision at 6. Accordingly, the RD
concluded that the VS employees should continue to be excluded from the
certified unit. The RD noted that in FTC the Authority held, consistent
with private-sector precedent, that where a group of employees have been
excluded from a union's original certification by virtue of a
pre-election agreement, the proper procedure to determine the question
of representation is an election pursuant to a representation (RO)
petition.
IV. Positions of the Parties
A. The Union
In its application for review, the Union contends that the RD erred
in finding that no "meaningful change" in the employee category had
occurred that would result in VS employees being included in the
bargaining unit. It argues that the employees in the new VS category
have an expectancy of continual employment and may be scheduled to work
34 hours a week just as regular part-time employees in the bargaining
unit. The Union further argues that VS employees' entitlement to fringe
benefits such as leave, health insurance and retirement would be subject
to bargaining like other non-appropriated fund employees in the
bargaining unit.
The Union further contends that VS employees clearly share a
community of interest with unit employees and should be included in the
unit. In support of its position, the Union lists several facts that it
claims were established during the hearing, including: (1) VS employees
do the same work as unit employees, alongside unit employees, under the
same supervision, and with the same pay; (2) both regularly scheduled
part-time and VS employees could work up to 34 hours per week; (3) VS
employees are regularly scheduled like regular part-time and full-time
employees in the unit; (4) AFR 40-7 permits the Activity to schedule VS
employees to work on a recurring basis at a level which previously would
have required their conversion to regular employees; (5) VS employees
can be, have been, and are encouraged to replace regular full-time and
part-time positions which become vacant; and (6) VS employees are hired
on a permanent basis. Accordingly, the Union contends the evidence
justifies the inclusion of VS employees in the bargaining unit.
B. The Activity
The Activity concurs with the RD's decision. The Activity contends
that the Union erroneously concluded that VS employees are now working
regular part-time hours and therefore, by inference, they should be
included in the bargaining unit with regular employees. It argues that
the Union's conclusion is not borne out by the evidence presented at the
hearing. The Activity further contends that the Union has also
erroneously alleged that VS employees are scheduled just as regular
part-time and full-time employees of the unit.
In this regard, the Activity argues that the evidence presented at
the hearing showed that regular employees are guaranteed 20-40 hours per
week under AFR 40-7, are regularly scheduled to work those hours, and
are entitled to two weeks' notice of any change in those schedules. The
evidence also showed, according to the Activity, that VS employees have
no set schedules, no two-week notice of changes, and may not work at all
for a period of weeks. Further, it notes, the RD specifically found
that the VS employees are not guaranteed any hours of work per week.
The Activity contends that the Union is trying to convert the
"possibility" of VS employees working up to 34 hours per week into an
actual practice, but that the evidence indicates the contrary.
Opposition at 4.
The Activity also notes that the RD found insufficient evidence in
the record to establish that a "meaningful change" had occurred in the
relevant employment categories. In this regard, it points out that the
RD found that there had been no significant changes in the employees'
job duties or functions, in their lack of entitlement to certain fringe
benefits, or in their working hours. Accordingly, the Activity asserts
that the Union has failed to meet any of the criteria for granting an
application for review set out in section 2422.17(c) of the Authority's
Rules and Regulations and has done nothing more than express
disagreement with the RD's findings.
V. Analysis and Conclusions
Upon careful consideration of the Union's application for review, we
conclude that compelling reasons do not exist within the meaning of
section 2422.17(c) of the Authority's Rules and Regulations for granting
review of the RD's decision. The Union's contentions constitute mere
disagreement with the RD's factual findings and conclusions that are
based on record evidence developed at a hearing, and his application of
Authority precedent to those facts.
In this case the RD, applying Authority precedent in FTC, found that
the evidence presented failed to establish that a meaningful change had
occurred in the duties and functions of the former TPT and intermittent
employees, who had been converted to the VS employment category, to
justify their inclusion in the existing bargaining unit through a unit
clarification proceeding. The RD found that the while their employment
category had changed, the record did not indicate that any significant
aspect of these employees' job duties or functions had changed. We
agree with these findings. With regard to the RD's finding that there
was a change as to the employees' ability to convert to regular
positions, the record discloses that at least ten VS employees were
converted to regular positions despite the now discretionary nature of
such conversions under the revised AFR 40-7. We find that, in these
circumstances, this also does not constitute a meaningful change so as
to require the inclusion of the VS employees in the unit.
We find that the Union's arguments and the list of "facts" included
in its application for review either relate to the factors used in
determining whether the employees share a clear community of interest
with employees in the bargaining unit, or are the Union's version of the
facts, which disagree with the RD's factual findings and conclusion that
there was no meaningful change in the employees' duties or functions due
to their conversion to the VS employment category. In our view, the
Union expresses mere disagreement with the RD's factual findings. Such
contentions do not provide a basis for granting review of the RD's
decision. See Defense Mapping Agency, Hydrographic/ Topographic Center,
Louisville Office, Louisville, Kentucky, 39 FLRA No. 79 (1991); U.S.
Small Business Administration, 34 FLRA 392 (1990); Department of the
Army, Headquarters, Presidio of San Francisco, Directorate of
Engineering and Housing, San Francisco, California, 33 FLRA 478 (1988).
It should be noted that the RD's decision does not preclude the
inclusion of the VS employees in the unit at some point in the future.
As the RD noted, the proper procedure to determine the question of
representation of employees who have been specifically excluded from a
unit and who have not had meaningful changes in their duties since that
exclusion is through an RO petition. In other words, the Union may file
an RO petition in which it may seek to represent the VS employees.
Should such a petition be filed, as with RO petitions filed in other
circumstances, the Regional Director must, as necessary, determine the
employees' unit status and in addition, must determine whether all
applicable requirements, such as those concerning showings of interest,
have been satisfied. See FTC, 35 FLRA at 586.
Based upon the foregoing, we will deny the application for review.
VI. Order
The application for review of the Regional Director's Decision and
Order on Petition for Clarification of Unit is denied.
40 FLRA 101
40 FLRA NO. 13
Dept. of Veterans Affairs, Washington, D.C. and Dept. of Veterans
Affairs Medical Center, Newington, Connecticut and NAGE, Local R1-109,
Case No. 1-CA-00144 (Decided April 10, 1991)
STATUTE
7116(a)(1), (5) and (8)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
NAMES AND HOME ADDRESSES
DIGEST NOTES
The Authority adopted the Judge's recommendation that the Respondent
violated section 7116(a)(1), (5) and (8) by refusing to furnish, upon
request of the Charging Party, the names and home addresses of
bargaining unit employees.
Case No. 1-CA-00144
U.S. DEPARTMENT OF VETERANS AFFAIRS, WASHINGTON, D.C. AND U.S.
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, NEWINGTON, CONNECTICUT
(Respondent)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R1-109, SEIU,
AFL-CIO
(Charging Party)
DECISION AND ORDER
April 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding
that the Respondent had engaged in the unfair labor practices alleged in
the complaint by refusing to furnish, upon request of the Charging
Party, the names and home addresses of bargaining unit employees. 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. No
opposition to the exceptions was filed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge and
find that no prejudicial error was committed. The rulings are affirmed.
Upon consideration of the Judge's decision, the exceptions and the
entire record, we adopt the Judge's findings, conclusions and
recommended Order for the reasons fully set forth 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).
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of Veterans Affairs, Washington, D.C. and
the U.S. Department of Veterans Affairs Medical Center, Newington,
Connecticut shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Association of
Government Employees, Local R1-109, 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) 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 the National Association of Government Employees, Local
R1-109, 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 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 Medical Director of the U.S.
Department of Veterans Affairs Medical Center, Newington, Connecticut,
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, Boston Regional Office,
Federal Labor Relations Authority, Boston, Massachusetts, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R1-109, 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 employees in the exercise of the rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Association of Government Employees,
Local R1-109, 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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Boston
Regional Office, whose address is: 10 Causeway Street, Room 1017A,
Boston MA 02222-1046, and whose telephone number is: (617) 565-7280.
Case No. 1-CA-00144
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION
MEDICAL CENTER, NEWINGTON, CONNECTICUT
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, SEIU,
AFL-CIO
Charging Party
Robert S. Goshdigian, Esq., For the Respondent
Richard D. Zaiger, Esq., For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
This case arises under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. section 7101 et seq. (herein called the Statute).
Pursuant to a charge filed on January 29, 1990 by National Association
of Government Employees, Local R1-109, SEIU, AFL-CIO (herein called the
Union), a Complaint and Notice of Hearing was issued on October 22, 1990
by the Acting Regional Director for Region I, Federal Labor Relations
Authority, against Veterans Administration, Washington, D.C. and
Veterans Administration, Medical Center, Newington, Connecticut (herein
called the Respondent).
The Complaint alleged, in substance, that Respondent violated section
7116(a)(1), (5) and (8) of the Statute by failing and refusing to
furnish the Union, upon request, the names and home addresses of
bargaining unit employees represented by the Union as required by
section 7114(b)(4) of the Statute.
Respondent's Answer, which was duly served on November 15, 1990,
admitted as to the Complaint: (a) the jurisdictional allegation
therein; (b) that on or about January 2, 1990 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 January 19, 1990 Respondent refused to furnish the
requested information to the Union; (d) the names and home addresses of
the unit employees which were requested are normally maintained by the
Respondent in the regular course of business; (e) that such information
is reasonably available to Respondent; (f) that such information does
not constitute guidance, advice, counsel, or training provided for
management officials or supervisors, relating to collective bargaining.
Respondent's Answer neither admitted nor denied that the information
requested is necessary for full and proper discussion, understanding and
negotiation of subjects within the scope of bargaining. It averred that
the Union has adequate alternative means available to contact its
members and disseminate information to them. Further, the Answer denied
that disclosure of the requested information is not prohibited by law
where adequate means of contacting employees are available to the Union.
Under date of December 31, 1990 General Counsel filed a Motion For
Summary Judgment.
By Order dated December 31, 1990 the Regional Director referred the
Motion to the Chief Administrative Law Judge pursuant to section
2423.22(b) of the Rules and Regulations. The case was duly assigned to
the undersigned for disposition.
Under date of January 8, 1991 Respondent filed its Opposition To
Motion For Summary Judgment which has been duly considered.
Respondent contends that the Privacy Act and the Freedom of
Information Act prohibit disclosure of names and addresses to the Union;
that section 7114(b)(4) of the Statute allows disclosure of such
information only to the extent not prohibited by law. It maintains that
the prevailing law is reflected in the case of Federal Labor Relations
Authority v. U.S. Department of the Treasury, Financial Management
Service, 884 F.2d 1446 (D.C. Cir. 1989), which relied upon the Supreme
Court case of U.S. Department of Justice, et al. v. Reporters Committee
for Freedom of the Press, et al., 108 S. Ct. 1468. Respondent insists
that the courts have concluded the right of the individual outweighed
the need for disclosure and therefore the names and addresses need not
be disclosed.
It is further argued that the "routine use" exception to the Privacy
Act, 5 U.S.C. 552(b)(3) does not apply since there are adequate means of
communication between the Union and the employees. Finally, Respondent
maintains that even if the Privacy Act does not prohibit release of the
information, it has not been shown that such is relevant and necessary
to the Union's representational duties as required by the Statute.
The issue involved herein was the subject of considerable detail by
the Authority in Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 788 (1986) enforced in part and remanded sub nom. U.
S. Department of Agriculture and Farmers Home Administration Finance
Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988). The
Authority held therein that the names and home addresses must be
furnished and that their release is not prohibited by law. It also
concluded such data is necessary for unions to fulfill their
representational duties under the Statute. The decision analyzed the
exceptions to the Privacy Act's bar to disclosure of personal
information pertinent to releasing employees' names and home addresses;
exception (b)(2) concerning the Freedom of Information Act and exception
(b)(3) relating to "routine use" of information. The Authority found
both exceptions applied so as to authorize the release of the data under
the Privacy Act.
Despite the decision by the D.C. Circuit in the Department of the
Treasury, supra, the Authority has stated it will continue "to look to
our earlier decision in Farmers Home Administration for controlling
principles in this area." See U.S. Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515. In the latter
decision the Authority explained in detail why it refused to be bound
by, or to find applicable, the Circuit Court's ruling in the Department
of the Treasury case.
Respondent lays stress upon the fact that the "routine use" exception
to the Privacy Act does not apply because OPM in Financial Management
Service, supra, indicated it did not approve disclosure if there were
adequate means of communication between unions and employees. Further,
Respondent insists there are such means available to the Union herein.
In the Portsmouth Naval Shipyard case, supra, the Authority concluded it
was inappropriate to defer on a labor law issue to the views of an
agency (OPM) that is not charged with implementing the Federal sector
labor laws while depriving the Authority, which is so charged, of its
ability to continue to set policy in this case. Further, the Authority
concluded that whether a disclosure is relevant and necessary to a
union's function will not depend upon whether alternative means of
communications are available.
Based on the foregoing, and the holdings of the Authority as set
forth above, I conclude that Respondent's refusal and failure to provide
the Union with the names and home addresses of unit employees violated
section 7116(a)(1), (5) and (8) of the Statute. See also United States
Department of the Navy and Philadelphia Naval Shipyard v. FLRA, 840
F.2d 1131 (3rd Cir. 1988), enforcing Philadelphia Naval Shipyard, 24
FLRA 37 (1986); U.S. Department of the Air Force, Scott Air Force Base,
Illinois v. FLRA, 838 F.2d 229 (7th Cir. 1988), affirming Department of
the Air Force, Scott Air Force Base, Illinois, 24 FLRA 226 (1986);
Department of Health and Human Services, Social Security Administration
v. FLRA, 833 F.2d 1129 (4th Cir. 1987), affirming Department of Health
and Human Services, Social Security Administration, 24 FLRA 543 (1986);
Department of Health and Human Services, Social Security Administration
and Social Security Administration Field Operations, New York Region, 24
FLRA 583 (1986); Department of Health and Human Services, Social
Security Administration, 24 FLRA 600 (1986).
Accordingly, the General Counsel's Motion For Summary Judgment is
granted. It is recommended that the Authority issue the following
Order:
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 Veterans Administration, Washington, D.C. and
Veterans Administration Medical Center, Newington, Connecticut, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of National Association of
Government Employees, Local R1-109, SEIU, AFL-CIO, the exclusive
representative of an appropriate unit 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 Statute:
(a) Furnish National Association of Government Employees, Local
R1-109, SEIU, AFL-CIO, the exclusive representative of an appropriate
unit 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
R1-109, 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 Director, Veterans
Administration, Washington, D.C. and Veterans Administration Medical
Center, Newington, Connecticut, 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 I, 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., February 8, 1991.
/s/ WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of National Association
of Government Employees, Local R1-109, SEIU, AFL-CIO, the exclusive
representative of an appropriate unit 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
R1-109, SEIU, AFL-CIO, the exclusive representative of an appropriate
unit 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 I,
whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046,
and whose telephone number is: (617) 565-7280.
40 FLRA 94
40 FLRA NO. 12
Dept. of the Army, Army Aviation Center, Fort Rucker, Alabama and
AFGE, Local 1815 (Nigro, Arbitrator), Case No. 0-AR-2009 (Decided April
10, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
DENIAL OF FAIR HEARING
EXCLUSION OF RELEVANT EVIDENCE
IMPROPER INTERPRETATION OF AGENCY REGULATION
FAILURE TO DRAW ESSENCE
DIGEST NOTES
The Arbitrator denied a Union filed grievance alleging that the
Agency violated three provisions of the Merit Placement Plan when it
failed to select the grievant for a position. Construing the Union's
claim that the Arbitrator wrongfully excluded relevant evidence as a
claim that the Arbitrator failed to conduct a fair hearing, the
Authority found that there was no basis to conclude that the Arbitrator
failed to consider pertinent and material evidence in determining the
issue before him. Moreover, there is nothing in the record to show that
the parties stipulated the issue to be resolved in arbitration. The
Arbitrator framed the issue as it was stated in the written grievance.
In the absence of a stipulation, the arbitrator's formulation of the
issue is accorded substantial deference.
The Authority construed the Union's argument that the Arbitrator did
not properly interpret the Agency's regulation as an exception that the
award fails to draw its essence from the agreement, and found that the
Union had not demonstrated that the award is deficient under any of the
Authority's stated tests for this allegation. Instead, the Authority
concluded that the Union's argument is an attempt to relitigate the
merits of the grievance and constitutes mere disagreement with the
Arbitrator's evaluation of the evidence and findings and conclusions
based thereon.
Case No. 0-AR-2009
U.S. DEPARTMENT OF THE ARMY, ARMY AVIATION CENTER, FORT RUCKER,
ALABAMA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1815
(Union)
DECISION
April 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Felix A. Nigro filed by the Union under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Agency filed an
opposition to the Union's exceptions.
The Union filed a grievance alleging that the Agency violated three
provisions of the Agency's Merit Placement Plan when it failed to select
the grievant for the position of GS-9 contract specialist. The
Arbitrator denied the grievance.
For the following reasons, we conclude that the exceptions provide no
basis for finding the award deficient. Accordingly, we will deny the
exceptions.
II. Background and Arbitrator's Award
When the Agency failed to select the grievant for a posted contract
specialist position, the Union filed a grievance alleging that the
Agency had violated sections 8-1.C, 6-3.B.4, and 6-3.C of its Merit
Placement Plan. /1/ When the grievance was not resolved, the matter was
submitted to arbitration.
The Arbitrator framed the issue before him as follows:
Did management violate the following provisions of the Merit
Placement Plan issued on July 1, 1985? Section 8-1(.)C Section
6-3(.)B(.)4 Section 6-(3.)C
Award at 1.
The Arbitrator concluded that the Agency did not violate the three
sections of the Merit Placement Plan. The Arbitrator stated that no
violation of section 6-3.B.4 occurred because the selecting official
"was not on the rating panel." Id. at 3. With respect to section 6-3.
C, the Arbitrator stated that there was no violation because the
selecting official did not rate the grievant's application or review her
rating. Id. The Arbitrator rejected the Union's "attempt() to expand
its grievance" to encompass provisions of the Merit Placement Plan which
had not been cited in the written grievance, and, as his award, denied
the grievance. Id. at 4.
III. Positions of the Parties
The Union states that the award is "contrary to law, rule, or
regulation and . . . is deficient on grounds similar to those applied by
Federal courts in private sector labor-management relations." Exceptions
at 1. The Union claims that the Arbitrator's decision to consider only
the three provisions of the Merit Placement Plan cited in the written
grievance constitutes "wrongful exclusion of relevant evidence."
Exceptions at 1. The Union maintains that the Arbitrator's refusal to
consider other provisions constitutes "harmful error" and is "contrary
to contract law whereby a contract is considered an integrated document
taken as a whole, from the four-corners of the agreement." Id. The
Union asserts that the Agency violated sections 4-3, 5-3.C, 10-4.A.6,
10-4.G, 10-4.H, 10-4.I, 11-3, and Appendix D of the Merit Placement
Plan. Id. at 4-6.
In addition, the Union asserts that the Arbitrator failed to
understand "the procedures and regulatory requirements regarding Federal
Sector position qualification requirements and selection-related
conduct." Id. at 8. To support this claim, the Union asserts that the
Arbitrator's finding that there was no violation of section 8-1.C of the
Merit Placement Plan is incorrect because the comprehensive
justification required by that provision for not filling the vacancy
"was never prepared nor entered into evidence" at the hearing. Id. at
6-7. Furthermore, the Union claims that the Arbitrator failed to
address whether the selecting official's actions "constituted . . .
constructive participation in the rating process(,)" and, therefore,
violated sections 6-3.B.4 and 6-3.C of the Merit Placement Plan. Id. at
7.
The Agency maintains that the Union's exceptions should be denied
because they constitute "nothing more than a general disagreement with
the findings of the (A)rbitrator." Opposition at 1.
IV. Analysis and Conclusions
We construe the Union's claim that the Arbitrator wrongfully excluded
relevant evidence as a claim that the Arbitrator failed to conduct a
fair hearing. The Authority will find an award deficient when it is
established that the arbitrator failed to conduct a fair hearing by
refusing to consider pertinent and material evidence. See, for example,
U.S. Department of the Air Force, Hill Air Force Base, Utah and American
Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991)
(Hill Air Force Base) (arbitrator's acknowledged failure to give
"serious consideration" to the union's position constituted failure to
conduct a fair hearing).
In this case, the Arbitrator determined that the grievance
encompassed only three provisions of the Merit Placement Plan. The
Arbitrator decided that additional provisions of the Plan were not
properly before him only after considering the Union's arguments and
reviewing an Authority decision which, according to the Union, supported
its position. There is no basis on which to conclude that the
Arbitrator failed to consider pertinent and material evidence in
determining the issues before him. As such, the Union has failed to
establish that the Arbitrator denied the Union a fair hearing.
Moreover, there is nothing in the record to show that the parties
stipulated the issue to be resolved in arbitration. The Arbitrator
framed the issue as it was stated in the written grievance. In the
absence of a stipulation of the issue to be resolved, an arbitrator's
formulation of the issue is accorded substantial deference. For
example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk,
Virginia and International Association of Machinists and Aerospace
Workers, Local 39, 36 FLRA 217, 221-22 (1990). Here, the award is
directly responsive to the issue as the Arbitrator framed it.
Consequently, the Union has not demonstrated that the Arbitrator failed
properly to resolve the issue involved in the grievance. See U.S.
Department of the Army, Combined Arms Center, Fort Leavenworth, Kansas
and American Federation of Government Employees, Local 738, 39 FLRA No.
75, slip op. at 7 (1991).
We construe the Union's argument that the Arbitrator did not properly
interpret sections 6-3.B.4, 6-3.C, and 8-1.C of the Merit Placement Plan
as an exception that the award fails to draw its essence from the
parties' agreement. /2/ 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 Merit Placement Plan. 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 demonstrate that the award is deficient.
Finally, although the Union asserts that the award violates law,
rule, or regulation, it did not cite a specific provision of law, rule,
or regulation that was violated or present any argument in support of
this assertion. We will, therefore, not consider this aspect of the
exceptions here.
V. Decision
The Union's exceptions are denied.
FOOTNOTES
(1) The pertinent provisions of the Merit Placement Plan are set
forth in the appendix to this decision.
(2) For purposes of this determination, we construe the Merit
Placement Plan to be an agreement negotiated by the parties.
APPENDIX
U.S. ARMY AVIATION CENTER FORT RUCKER, ALABAMA
MERIT PLACEMENT PLAN
SECTION 6. CANDIDATE EVALUATION
6-3. Rating Procedures.
B. Rater Qualifications.
4. A prospective selecting official will not participate in (the)
rating for his/her vacancies, unless that official is the only person in
the workforce who meets the rater qualifications requirements of (1) and
(2) above. When a selecting official is used as a rater, the Personnel
Staffing Specialist will assure that the rating criteria established and
the rating decisions made are related to the actual job duties and
responsibilities and are not designed to favor or provide preferential
treatment to any candidate(s). The Staffing Specialist will assure that
the respective union President or designated representative is notified.
C. The rating of applications shall be performed only by persons in
job series 0203 or 0212 or by properly designated rating panels of
occupational experts and shall be reviewed by persons holding the grade
of GS-9 or above in job series 0212.
SECTION 8. SELECTION
8-1. General.
C. Management at its discretion may decide not to fill a vacancy
even after receiving a properly developed Referral and Selection
Register. If the decision is made not to fill a position after
receiving a "full" selection register, i.e., at least three available
candidates, the register will be returned to the Civilian Personnel
Office with comprehensive justification and written concurrence from a
higher management level. The Civilian Personnel Officer will review the
documentation and determine if the failure to make a selection is
supportable. If not supportable, the CPO will advise the appropriate
Staff/Director of the non-selection and recommend that selecting
official make a selection or that selection be made by next appropriate
official. In no instances will selections be deferred or delayed solely
to circumvent the requirements of this Plan and the Federal Merit
Promotion Program. All Referral and Selection Registers will be issued
with an expiration date of seven working days from date of issue.
Referral and Selection registers will not be valid after expiration date
unless written justification is furnished prior to expiration date
requesting an extension by the selecting official and approved by the
Civilian Personnel Officer or his designee.
40 FLRA 88
40 FLRA NO. 11
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-1981 (Decided April 10, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
CONTRARY TO LAW, REGULATION
5 U.S.C. 7512
BURDEN OF PROOF
DIGEST NOTES
The Arbitrator denied the grievance concerning the Agency's placing
of the grievant on enforced leave. The Authority concluded that the
award is not contrary to law or regulation, rejecting the claim that
precedent required the Arbitrator to place the burden of proof on the
Agency. Further, the Authority concluded that the two periods of
enforced leave constitute an adverse action covered by 5 U.S.C. 7512
because they are tantamount to one suspension of more than 14 days.
Accordingly, the Authority is without jurisdiction under 7122(a) to
review the Union's exceptions.
Case No. 0-AR-1981
U.S. DEPARTMENT OF THE AIR FORCE, HEADQUARTERS OKLAHOMA CITY AIR
LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916
(Union)
DECISION
April 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 filed an
opposition to the Union's exceptions.
The Arbitrator denied the grievance concerning the Agency's placing
of the grievant on enforced leave. For the following reasons, we
conclude that the Arbitrator's award is not deficient and we will,
therefore, deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is an equipment cleaner at the Agency's facility. On or
about December 18, 1989, the grievant was "loaned" to "Aircraft" from
"Engines" where he was then employed. Award at 4. As part of a
physical examination given to the grievant at that time, the grievant
underwent a blood test which revealed that he "had a liver problem which
was attributed to toxic chemical exposure on the job." Id. On January
11, 1990, the grievant was restricted to a work environment free from
the risk of exposure to chemicals or chemical fumes.
Aircraft was unwilling to retain the grievant with his job
restrictions and sent him back to Engines on January 22. On January 23
the grievant's second-level supervisor gave the grievant a notice of
enforced leave for the 14-day period of January 23 to February 5. The
notice stated, in part: "My decision to place you on enforced leave is
based on the medical opinion that you are not ready, willing, and able
to perform the duties of your position. . . . Efforts to locate other
duties within these medical restrictions have not been successful;
however, these efforts will continue. You may be directed to report to
duty, if such duties are located." Id.
After completing his 14 days of enforced leave, the grievant returned
to work on February 6. On February 7 the grievant was issued another
notice of enforced leave for another 14-day period. Before that period
expired, the grievant personally located a warehouse job where he could
work with his medical restrictions. The grievant informed his
second-level supervisor of the availability of that job. The supervisor
confirmed the grievant's claim with the warehouse supervisor and then
told the grievant to report back to work.
A grievance was filed concerning the two periods of enforced leave.
The grievance was not resolved and was submitted to arbitration.
As the parties were unable to agree upon the issue, the Arbitrator
framed the issue as follows: "Did the Agency have just cause to place
(the grievant) on enforced leave? If not, what shall be the remedy?"
Id. at 6.
Before the Arbitrator, the Union argued that the enforced leave was
"in effect a suspension" and "therefore the Agency (had) the burden of
proof" in accordance with the precedent and guidelines of the Merit
Systems Protection Board (MSPB). Id. The Union contended that the
Agency had failed to afford the grievant his rights in connection with
the "suspension" by failing to provide him with a notice of proposed
suspension or the opportunity to respond before effectively suspending
him from his duties. Finally, the Union claimed that there was work
available which could have been performed by the grievant, but that the
Agency did not make a reasonable effort to locate such a position for
the grievant.
With respect to the availability of work, the Arbitrator examined the
obligations of the Agency against the requirements of AFR 40-716( C1).
/*/ The Arbitrator noted that although "(t)here may have been available
work which could have been done by (the grievant) within his
restrictions," the credible "testimony eliminated any doubt that the
Agency's resources were not properly utilized in the job search effort."
Id. at 7. The Arbitrator considered the grievant's testimony that when
he was first placed on enforced leave, he had advised his second-level
supervisor that there was work available in the B-1 Tool Crib. However,
the Arbitrator credited the second-level supervisor's assertion that the
grievant had not said anything to her about the B-1 Tool Crib.
The Arbitrator concluded that it was shown "(b)y a preponderance of
the evidence . . . that the Agency acted responsibly by protecting (the
grievant) from hazardous exposure by placing him on enforced leave when
reasonable job searches were unsuccessful. There is no evidence to
support the various Union allegations that the Agency violated the (c)
ontract or applicable Air Force (r)egulations." Id. at 8. Accordingly,
the Arbitrator concluded that the Agency "had just cause" for placing
the grievant on enforced leave and the Arbitrator denied the grievance.
Id.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is contrary to law
because the Arbitrator did not place the "burden of proof on the Agency"
in accordance with the decision of the U.S. Court of Appeals for the
Federal Circuit in Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987)
(Pittman). Exceptions at 8.
The Union also maintains that the Arbitrator's award is deficient
because it is contrary to regulation. Specifically, the Union argues
that because the Arbitrator concluded that there may have been available
work for the grievant and because the Agency conceded that it did not
conduct a base-wide search for work that could be performed by the
grievant, the Arbitrator's award is contrary to "AFR 40-716 paragraph
2(d) where it state(d) 'When the employee's disability or capacity (sic)
is of a temporary nature he may be detailed . . . to available work he
can do.'" Id.
B. The Agency
The Agency maintains that Pittman is inapposite because in Pittman
the court held that enforced leave of more than 14 days is a
constructive suspension and, therefore, an adverse action within the
MSPB's jurisdiction. The Agency notes that the periods of enforced
leave in this case were not for more than 14 days and, as such, "even if
Pittman mandated a specific order of presenting evidence . . . , the
(A)rbitrator here would not have been bound to follow such a procedure,
for the rules relating to adverse actions simply do not apply to actions
not taken under 5 USC Section 7512." Opposition at 2-3.
The Agency argues that, in any event, the Arbitrator's statement of
the issue and his award make it clear that the Arbitrator placed the
burden of proof on the Agency in this case. The Agency asserts,
moreover, that an arbitrator has considerable discretion in the manner
in which he or she conducts an arbitration hearing and is not bound to
place the burden of proof in any particular manner.
IV. Analysis and Conclusions
We conclude that the award is not contrary to law or regulation and
we will deny the Union's exceptions.
We reject the Union's claim that Pittman required the Arbitrator in
this case to place the burden of proof on the Agency. In Pittman an
employee with medical restrictions was placed on enforced leave for an
indefinite period of time. The court concluded that such periods of
enforced leave of more than 14 days, even those ordered because the
agency believes the employee cannot perform work because of medical
restrictions, are to be considered disciplinary adverse actions covered
by 5 U.S.C. Section 7512 and within the jurisdiction of the MSPB.
In this case, the grievant was placed on enforced leave for two
separate periods, each of a duration of 14 days or less. In Cornelius
v. Nutt, 472 U.S. 648 (1985), the U.S. Supreme Court held that if a
disciplinary action covered by 5 U.S.C. Section 7512 is grieved under a
negotiated grievance procedure, an arbitrator must apply the same
substantive standards as would have been applied if the matter had been
appealed to the MSPB. The Authority has uniformly rejected arguments
that these standards must be applied to resolutions by arbitrators of
lesser disciplinary actions that are not covered by 5 U.S.C. Section
7512. For example, Department of the Air Force, Griffiss Air Force Base
and American Federation of Government Employees, Local 2612, 34 FLRA 712
(1990).
This case involves periods of enforced leave of 14 days or less.
Accordingly, we find, contrary to the Union's contention, that the award
is not contrary to law because the Arbitrator assertedly failed to apply
the standard of review which the Union contends is required.
Furthermore, were we to conclude that the two periods of enforced leave
constitute an adverse action covered by 5 U.S.C. Section 7512 because
they are tantamount to one suspension of more than 14 days, the
Authority would be without jurisdiction under section 7122(a) of the
Statute to review the Union's exceptions. See, for example, National
Treasury Employees Union, Chapter 202 and Department of the Treasury,
Financial Management Service, Headquarters, Office, 32 FLRA 1075 (1988)
(Authority had no jurisdiction to consider agency exceptions to award
that related to the removal of the grievant that was covered by 5 U.S.
C. Section 7512).
Moreover, nothing in the award establishes that the burden of proof
was placed upon the Union. Indeed, the Arbitrator concluded that a
preponderance of the evidence demonstrated that the Agency had just
cause in placing the grievant on enforced leave. Moreover, unless a
specific burden of proof is required, an arbitrator may establish and
apply whatever burden the arbitrator considers appropriate. U.S.
Department of the Treasury, Internal Revenue Service, Omaha, Nebraska
District and National Treasury Employees Union, 36 FLRA 453, 464-65
(1990). In the absence of any evidence that the Arbitrator was
obligated to apply a specific burden of proof, the Union's claim that
the Arbitrator incorrectly placed the burden of proof on the Union
provides no basis for finding the award deficient.
We also find that, contrary to the Union's contention, the award is
consistent with AFR 40-716(C1). Section 2.d. of that regulation
provides that when an employee's disability or incapacity is of a
temporary nature the employee "may be detailed" to available work the
employee can do. The regulation does not require that a temporarily
disabled or incapacitated employee be detailed to other work. The
Arbitrator concluded that the Agency made an adequate search for
available work that the grievant could perform. Accordingly, we
conclude that the Union's exception constitutes mere disagreement with
the Arbitrator's findings of fact and evaluation of the evidence. As
such, the exception provides no basis for finding the award deficient.
See, for example, U.S. Department of Transportation, Federal Aviation
Administration, Decatur ATCT and National Air Traffic Controllers
Association, 39 FLRA No. 89, slip op. at 4 (1991).
V. Decision
The Union's exceptions are denied.
FOOTNOTES
(*) AFR 40-716(C1) relating to "Fitness-for-Duty Examinations and
Resulting Personnel Actions" states, in pertinent part:
1. Explanation of Requirements. . . . Employees whose health
becomes impaired are given every consideration for continued
employment. . . .
2. Use of Occupational Health Services for Employee Health
Problems:
a. . . . A Federal medical officer's and employee's private
physician's opinions about an employee's inability, incapacity or
limitations to work must be followed by the supervisor to protect
the Government from claims. Placing an employee on sick or annual
leave or, after exhausting his paid leave, on involuntary leave
without pay based on a medical opinion, does not constitute a
management decision. It only recognizes a situation beyond
management's control in which a supervisor is obliged to accept
the medical opinion.
. . . . . . .
d. When the employee's disability or incapacity is of a
temporary nature he may be detailed under AFR 40-321 to available
work he can do, and if detail is not appropriate, placed on leave.
If the disability is of a permanent disqualifying nature,
appropriate action must be taken to assign or separate the
employee from his current position.
40 FLRA 84
40 FLRA NO. 10
Dept. of the Army, Army Transportation Center, Fort Eustis, Virginia
and NAGE, Local R4-6, Case No. 0-AR-1817 (38 FLRA 186) (Decided April
10, 1991)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
REQUEST FOR CLARIFICATION
GROUNDS
DIGEST NOTES
In response to Agency exceptions to the original award, the Authority
concluded that the Agency failed to establish that the award was
contrary to management's right to discipline, but that the award of
attorney fees was contrary to the Back Pay Act. After that decision,
the Union filed a motion for attorney fees with the Arbitrator, which
was denied in a supplemental award. The Arbitrator advised that the
matter of the Union's request would not be further pursued unless the
Union obtained an order from the Authority remanding the matter to her
for an articulation of findings. The Union filed timely exceptions to
this supplemental award, which are currently pending. In its motion for
clarification, the Union requests that the Authority clarify the
decision to reflect that the Arbitrator has continuing authority to
issue a decision on the fee issue.
The Authority denied the request for clarification, noting its
precedent that when the Authority remands an award to the parties, the
Authority's decision will specify that the award is remanded; similarly
when an award is set aside, in whole or in part, the award is vacated as
to the portion or portions set aside. The Authority stated that in its
original decision, it clearly set aside the provision of the award
regarding attorney fees and did not intend to remand the award to the
parties.
Case No. 0-AR-1817 (38 FLRA 186 (1990))
U.S. DEPARTMENT OF THE ARMY, ARMY TRANSPORTATION CENTER, FORT EUSTIS,
VIRGINIA
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R4-6
(Union)
ORDER DENYING REQUEST FOR CLARIFICATION
April 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on a request filed by the Union
for clarification of our decision in 38 FLRA 186 (1990). The Agency
filed a response to the Union's request for clarification.
We conclude that our decision in 38 FLRA 186 needs no clarification,
and we will deny the request.
II. Background
A. Arbitrator's 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(.)"
Arbitrator's Award at 11.
B. The Decision in 38 FLRA 186
The Agency filed exceptions to the award. We concluded that the
Agency failed to establish that the award was contrary to management's
right to discipline under section 7106(a)(2)(A) of the Federal Service
Labor-Management Relations Statute (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 attorney 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), the Authority explicitly stated that in future cases, an award
granting attorney fees without the required support will be found
deficient and will be set aside or modified as appropriate.
Accordingly, we modified the award to strike the provision for attorney
fees.
C. Arbitrator's Supplemental Award
On November 27, 1990, after our decision, the Union filed a motion
for attorney fees with the Arbitrator. In a supplemental award, the
Arbitrator denied the Union's request for a "new award of attorney
fees." Arbitrator's Supplemental Award at 3. She advised that the
matter of the Union's request would not be further pursued unless the
Union obtained an order from the Authority remanding the matter to her
for an articulation of findings.
On January 18, 1991, the Union filed a timely exception to the
Arbitrator's supplemental award. The exception is currently pending
before the Authority in Case No. 0-AR-2056.
III. Positions of the Parties
A. The Union
The Union notes that in its exception to the Arbitrator's
supplemental award, it contends that the appropriate time for filing a
motion for attorney fees is following the final decision in the case.
The Union argues that it properly submitted a motion for fees following
the Authority's decision. Noting that in her supplemental decision, the
Arbitrator stated that she would need a remand order to be able to issue
a fee award, the Union requests that we "clarify the decision to reflect
that the Arbitrator has continuing authority to issue a decision on the
fee issue." Request for Clarification at 2.
B. The Agency
The Agency maintains that the decision needs no clarification. In
the Agency's view, the Union is seeking to have the award remanded when
this was not what the Authority ordered. The Agency claims that the
decision needs no such clarification because the award was set aside and
not remanded.
The Agency also maintains that because the Union is seeking a remand,
the Union's request is actually a request for reconsideration and not
for clarification. As such, the Agency argues that it should either be
dismissed as not timely filed or denied because the Union fails to
establish extraordinary circumstances warranting reconsideration.
IV. Analysis and Conclusions
Initially, we conclude that we will consider the Union's request to
be a request for clarification, as specifically stated by the Union. We
will not dismiss or deny the request as a request for reconsideration,
as asserted by the Agency. Instead, we deny the Union's request because
in our view our decision in 38 FLRA 186 requires no clarification. As
we noted in denying a similar request in U.S. Army Transportation
Center, Ft. Eustis, Virginia and National Association of Government
Employees, Local R4-106, 34 FLRA 601, 603 (1990), when the Authority
remands an award to the parties, the Authority's decision will specify
that the arbitrator's award is remanded; similarly when an award is set
aside, in whole or in part, the award is vacated as to the portion or
portions set aside. In 38 FLRA 186 we clearly set aside the provision
of the award regarding attorney fees and did not intend to remand the
award to the parties.
We also deny the request because the actual issue raised by the Union
in its request for clarification concerns the authority of the
Arbitrator after our decision issued. That issue also has been raised
by the Union in its exception to the Arbitrator's supplemental award and
is more appropriately addressed in the resolution of the Union's
exception in Case No. 0-AR-2056, rather than as a clarification of 38
FLRA 186.
V. Order
The Union's request for clarification is denied.
40 FLRA 79
40 FLRA NO. 9
Dept. of Defense, Army and Air Force Exchange Service, George Air
Force Base, California and NFFE, Local 977 (Anderson, Arbitrator), Case
No. 0-AR-1987 (Decided April 9, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
WAGE RATE SETTING
NONAPPROPRIATED FUND EMPLOYEES
PREVAILING RATE SYSTEMS ACT OF 1972
5 U.S.C. 5343
ARBITRATORS RETENTION OF JURISDICTION
DIGEST NOTES
The Arbitrator determined that the Agency violated law, regulation,
and the agreement when it reduced the commission paid to automotive
mechanics. The Arbitrator ordered the parties to meet in order to
review the evidence on which the Agency based its determination to
adjust commission rates. If the adjusted rates are appropriate, they
would remain in place, but if the Agency could not justify the
adjustment, the parties were to establish the proper rates. Further, if
it was determined that the mechanics were denied proper commission
rates, they would be reimbursed for the difference. Finally, the
Arbitrator retained jurisdiction for 60 days in order to assist in the
resolution of questions concerning the appropriate rates.
The Authority noted that the mechanics are nonappropriated fund
employees who are subject to the provisions of the Prevailing Rate
Systems Act of 1972. Under the Act, the mechanics are subject to the
prevailing rate wage system. The Authority rejected the Agency's
contention that, pursuant to an agreement reached at a meeting of the
FPRAC, the Agency had authority unilaterally to adjust commission rates
for mechanics. Accordingly, the Authority concluded that the Agency had
not established that it had a right unilaterally to adjust commission
rates involved in this case. Therefore, the Agency failed to establish
that the award was inconsistent with the FPM.
The Authority further rejected the contention that the Arbitrator's
retention of jurisdiction was improper, noting that the Agency failed to
establish that the retention for the limited purpose rendered the award
deficient.
Case No. 0-AR-1987
U.S. DEPARTMENT OF DEFENSE ARMY AND AIR FORCE EXCHANGE SERVICE GEORGE
AIR FORCE BASE, CALIFORNIA
(Agency)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 977
(Union)
DECISION
April 9, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award 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.
The Arbitrator determined that the Agency violated law, regulation,
and the parties' collective bargaining agreement when it reduced the
commission paid to automotive mechanics. The Arbitrator ordered the
parties to meet in order to review the evidence on which the Agency
based its determination to adjust commission rates. The Arbitrator
ordered that if the adjusted commission rates were appropriate, they
would remain in place, but that if the Agency could not justify the
adjustment in commission rates, the parties were to establish the proper
rates. Further, if it was determined that the mechanics were denied
proper commission rates, they would be reimbursed for the difference.
Finally, the Arbitrator retained jurisdiction for 60 days in order to
assist in the resolution of questions concerning the appropriate
commission rate.
For the following reasons, we conclude that the Agency has not
demonstrated that the award is deficient. Therefore, the Agency's
exceptions will be denied.
II. Background and Arbitrator's Award
The grievance in this case arose when the commission rates paid to
automotive mechanics working for AAFES at George Air Force Base,
California (the Activity), were reduced by 20 percent. The grievance
alleged that the Activity's action was taken unilaterally and without
the participation of the Union, as required by law and regulation.
The Arbitrator concluded that the Agency "violated the parties(')
collective bargaining agreement, and federal law" when it adjusted the
commission rates "without the participation and involvement of the
Union." Award at 5. In so concluding, the Arbitrator dismissed the
Agency's argument that an agreement had been reached before the Federal
Prevailing Rate Advisory Committee (FPRAC) which gave the Agency the
right unilaterally to change the commission rates provided the change
was within the range established by FPM Supplement 532-2. The
Arbitrator concluded that the transcript of the FPRAC meeting "was not
convincing that such an agreement was intended" or superseded the
requirements of 5 U.S.C. Section 5343 and FPM Supplement 532-2 for union
involvement in the determination of prevailing wage rates. Id.
The Arbitrator concluded that, in view of 5 U.S.C. Section 5343 and
of FPM Supplement 532-2, the Agency "violated the parties(') collective
bargaining agreement, and federal law, when it unilaterally decided for
commission wage adjustments for mechanics involved in this case without
the participation and involvement of the Union." Id. The Arbitrator
ordered the parties to "meet for the purpose of reviewing the evidence
which prompted the Activity to adjust commission pay rates of
mechanics." Id. at 6. The Arbitrator stated that, if the Agency's
commission wage rate was "found to have to been appropriate for the
geographical area in question, the Activity's wage adjustment shall
stand." Id. The Arbitrator ordered that, if the Agency could not
"justify" the adjustment of the mechanics' commission rate, the parties
were "to establish the proper adjustments" and the mechanics were to "be
reimbursed for the difference" between what they earned and what they
would have earned pursuant to a proper adjustment of their commission
rates. Id.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because
it is contrary to law and regulation. Specifically, the Agency argues
that the award is contrary to FPM Supplement 532-2, Appendix V. The
agency asserts that the award requires it to "renegotiate an agreement
reached with the Union in proceedings before" the FPRAC on June 19,
1984. Exceptions at 3.
The Agency also asserts that the Arbitrator's retention of
jurisdiction results in a denial of its right under section 7122(b) of
the Statute and section 2425.1(b) of the Authority's Rules and
Regulations to file exceptions to the award. According to the Agency,
"the substantive issue" of whether the commission rates it established
for mechanics is appropriate will "become() final and binding" before
the Arbitrator rules on the remedy. Id. at 4.
B. The Union's Opposition
The Union asserts that there was no "agreement" that the Agency had
unilateral authority to establish commission rates. Opposition at 1.
Moreover, the Union asserts that any such agreement would be illegal and
unenforceable.
IV. Analysis and Conclusions
A. FPM Supplement 532-2
We reject the Agency's argument that it was privileged unilaterally
to change the commission rates for automobile mechanics.
The automotive mechanics are nonappropriated fund employees who are
subject to the provisions of the Prevailing Rate Systems Act of 1972,
Pub. L. No. 92-932, 86 Stat. 564 (1972) (codified as amended at 5 U.S.
C. Section 5341-5349 (1988) (the Act). Under the Act, the automotive
mechanics are subject to the prevailing rate wage system, codified at 5
U.S.C. Section 5343, whereby pay is to be fixed and adjusted from time
to time as nearly as is consistent with the public interest in
accordance with prevailing rates.
The Office of Personnel Management (OPM) is responsible for, among
other things, issuing regulations which prescribe practices and
procedures for implementing and administering the prevailing rate
system. 5 U.S.C. Section 5343(c). The OPM regulations are codified at
part 532 of title 5, Code of Federal Regulations. Additionally, OPM
issued Federal Personnel Manual (FPM) Supplement 532-2, entitled
"Federal Wage System -- Nonappropriated Fund Employees," which sets
forth procedures and instructions for the administration and operation
of the prevailing rate wage system as it applies to nonappropriated fund
employees.
The automotive mechanics are subject to Appendix V of FPM Supplement
532-2, which sets forth a schedule of commission rates for various Army
and Air Exchange Service employees. For automotive mechanics, the
allowable commission range is set at 40 to 65 percent. Appendix V
further provides that OPM is to undertake a study "to determine the most
appropriate pay treatment" for employees such as the automotive
mechanics, but that when "the appropriate agency wage-fixing authority
determines, after appropriate consultation with labor organization
representatives, that an earlier change in pay practices is required,
such a change may be made earlier." FPM Supplement 532-2, Appendix V, at
V-1. Subchapter S1 of FPM Supplement 532-2 provides that, "(i)n
accordance with section 5343(c)(2) of Title 5, United States Code, there
shall be participation at all levels by representatives of labor
organizations accorded recognition as the representative of prevailing
rate employees in every phase of providing an equitable system for
fixing and adjusting the rates of pay" for prevailing rate employees.
The Agency alleges that, pursuant to an agreement reached at a FPRAC
meeting on June 19, 1984, the Agency had authority unilaterally to
adjust commission rates for automotive mechanics within the 40-65
percent range set by FPM Supplement 532-2. The Agency has not
demonstrated that such an agreement exists, however. The transcript of
the meeting discloses only that a representative of OPM stated that the
parties had agreed "that management will undertake a study of federal
and industry commission pay practices" and that "management . . . could
unilaterally change commission percentages only if these were to remain
within the stated percentages" in FPM Supplement 532-2. Attachment No.
5 to the Agency's Exceptions, at 33-34. The transcript contains no
indication that a Union representative, or a representative of any other
union, acknowledged such agreement. Moreover, the transcript reflects
that, even if an agreement was reached, the agreement was to last only
"during the course of the study" which the parties were to undertake.
Id. at 34. The Agency submits no evidence that such a study took place.
Accordingly, we conclude, in agreement with the Arbitrator, that the
Agency has not established that it had a right unilaterally to adjust
the commission rates involved in this case. The Agency has failed to
establish, therefore, that the Arbitrator's award is inconsistent with
FPM Supplement 532-2.
B. Arbitrator's Retention of Jurisdiction
The Arbitrator retained jurisdiction to assist the parties in the
event they are unable to "satisfactorily" determine the appropriate
commission rate or if they need help to "expedite and finally resolve
the matter." Award at 6. The Agency has failed to establish that the
Arbitrator's retention of jurisdiction for this limited purpose renders
the award deficient. See Overseas Education Association and Department
of Defense Dependents Schools, Atlantic Region, 31 FLRA 80, 93 (1988).
Moreover, the Agency has not established, and it is not otherwise
apparent, that this retention of jurisdiction interferes in any way with
the Agency's right to file exceptions to the award under section 7122 of
the Statute. Accordingly, the Agency's exception provides no basis for
finding the award deficient.
V. Decision
The Agency's exceptions are denied.
40 FLRA 56
40 FLRA NO. 8
NAGE, Local R4-45 and Dept. of the Navy, Navy Resale and Service
Support Office, Norfolk, Virginia, Case No. 0-NG-1859 (Decided April 9,
1991)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
SCHEDULE OF DISCIPLINARY OFFENSES AND REMEDIES
RIGHT TO DISCIPLINE
PENALITIES OUTSIDE THE RANGE PRESCRIBED
GRAVITY OF OFFENSE AND PAST RECORD
DIGEST NOTES
The dispute concerned the negotiability of a proposal establishing a
Schedule of Disciplinary Offenses and Recommended Remedies. The
proposal prescribes the range of penalities that can be imposed on an
employee for specified types of offenses. The proposal does not purport
to cover every possible type of offense, but reserves to the discretion
of management, consistent with the guidelines established by the
proposal, the penalties to be imposed for offenses that are not listed
in the proposal.
The Authority found that the proposal directly interfered with
management's right to discipline employees under 7106(a)(2)(A) in that
it is a limitation on management's determination of the appropriate
penalty. As to the fact that the proposal permits management to impose
penalties outside the range prescribed by the proposal "depending on the
gravity of the offense, the past record, and the position of the
employee," the Authority concluded that the effect of the exception is
to establish a substantive restriction on management's determination and
it does not cure the inconsistency with 7106(a)(2)(A).
Case No. 0-NG-1859
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R4-45
(Union)
and
U.S. DEPARTMENT OF THE NAVY, NAVY RESALE AND SERVICES SUPPORT OFFICE,
NORFOLK, VIRGINIA
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUE
April 9, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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) by the Union. The dispute concerns the
negotiability of a proposal establishing a Schedule of Disciplinary
Offenses and Recommended Remedies. For the following reasons we find
the proposal to be nonnegotiable.
II. Proposal
The proposal is set forth in Appendix A attached to this decision.
III. Positions of the Parties
1. Agency
According to the Agency, this negotiability dispute arose during
negotiations over the adoption of a schedule of disciplinary offenses
and penalties at the local installation. The Agency claims that the
proposal is a "modification" of its own proposed schedule. Agency's
Statement of Position at 2. The Agency notes that the categories of
offenses in the proposal are "generally consistent with" the Agency's
schedule, but that the proposed penalties are not. Id. The Agency
states that the proposal "typically provides for less severe
disciplinary measures." Id.
The Agency contends that the proposal is nonnegotiable because it
directly interferes with management's right to discipline employees
under section 7106(a)(2)(A) of the Statute. The Agency notes that the
Authority has held to be nonnegotiable proposals that incorporate into
the parties' agreement terms governing the range of disciplinary actions
that were drawn from existing agency regulations. Id. at 3-4, citing
New York State Nurses Association and Veterans Administration, Bronx
Medical Center, 30 FLRA 706, 732-35 (1987), reversed as to other matters
sub nom. Veterans Administration Bronx Medical Center v. FLRA, No.
88-1150 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 377
(1988), request for reconsideration denied, 34 FLRA 805 (1990), petition
for review dismissed sub nom. New York State Nurses Association v. FLRA,
No. 88-1893 (D.C. Cir. April 11, 1989); West Point Elementary School
Teachers Association, NEA and The United States Military Academy
Elementary School, West Point, New York, 29 FLRA 1531, 1538-40 (1987),
affirmed on other grounds sub nom. West Point Elementary School Teachers
Association v. FLRA, 855 F.2d 936 (2d Cir. 1988) (West Point Elementary
School); National Federation of Federal Employees, Council of Veterans
Administration Locals and Veterans Administration, 31 FLRA 360, 399-410
(1988), remanded as to other matters sub nom. Veterans Administration v.
FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988), decision on remand, 33
FLRA 349 (1988). The Agency argues that the proposal in this case is
"more intrusive" because the Union "is attempting to negotiate the
penalties that may be imposed for various infractions." Id. at 4.
The Agency notes, for example, that, under the proposal, the
penalties for "(u)nauthorized sale or transfer of a narcotic or
dangerous drug on (G)overnment property or during duty hours" range from
"(r)eprimand to removal" for a first offense, "5-day suspension to
removal" for a second offense, and "10-day suspension to removal" for a
third offense. Id. at 5. The Agency states that, under its own
schedule of discipline, the penalty is simply "removal." Id. See
Appendix B for the Agency's "Schedule of Offenses and Recommended
Remedies." The Agency concludes that the proposal interferes with
"managerial discretion with respect to determining appropriate
disciplinary action for various infractions." Id. The Agency cites
National Association of Government Employees, Local R4-6 and Department
of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Fort Eustis), in
which a proposal prescribing a lesser penalty than that established by
local installation regulations was held to be nonnegotiable.
The Agency also contends that the proposal directly interferes with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute. The Agency argues that management's
right to determine its internal security practices includes the right to
take "those measures necessary to exclude or remove personnel who pose a
danger to (A)gency employees, property or operations." Id. at 6. The
Agency concludes that because the proposal would interfere with
management's ability to "expeditiously remove" employees for drug
trafficking, the proposal interferes with management's right to
determine its internal security practices. Id.
2. Union
The Union contends that the intent of the proposal is "to provide
reasonable guidelines to be used in determining remedies for
disciplinary offenses." Union's Petition for Review at 1. According to
the Union, the proposal "provides a table of offenses and recommended
remedies as well as preserving the Agency right to effect remedies
outside the general range depending on the gravity of the offense, the
past record, and the position of the employee." Id. The Union states
that the proposal is essentially the same as the existing disciplinary
schedule, which was itself the result of an impasse in negotiations that
went to the Federal Service Impasses Panel and culminated in an interest
arbitration award. Id.
The Union claims that the proposal in this case is distinguishable
from the proposals at issue in the cases cited by the Agency because it
"provides for remedies outside the general range." Union's Response at
1. The Union notes that the proposed schedule "permits the Agency to
consider such factors as the nature of the offense and whether an
employee had previously committed the offense" in determining the
appropriate penalty. Id. at 1-2. The Union concludes that, because
"specific levels of discipline are not mandated" by the proposal, the
proposal does not interfere with management's right to discipline. Id.
at 2.
The Union also argues that the proposal would not interfere with
management's right to determine its internal security practices because
it would "preserve (management's) right to remove personnel who pose a
danger to Agency employees, property or operations" and because it would
not preclude management from invoking the "crime provisions" set forth
in 5 U.S.C. Section 7513(b)(1) and 5 C.F.R. Section 752.404(d).
IV. Analysis and Conclusions
The proposal in dispute in this case prescribes the range of
penalties that can be imposed on an employee for specified types of
offenses. The proposal does not purport to "cover every possible type
of offense." Appendix A. Rather, the proposal reserves to the
discretion of management, consistent with the guidelines established by
the proposal, the penalties to be imposed for offenses that are not
listed in the proposal. However, the proposal does contemplate that the
penalty imposed for a given offense "will generally range from the
minimum remedy to the maximum" prescribed, except that, "depending on
the gravity of the offense, the past record, and the position of the
employee," penalties outside the prescribed range may be imposed. Id.
We find that the disputed proposal directly interferes with management's
right to discipline employees under section 7106(a)(2)(A) of the Statute
and, absent a claim that the proposal constitutes an appropriate
arrangement under section 7106(b)(3), we conclude that the proposal is
nonnegotiable.
Proposals that restrict the penalty that can be imposed on employees
for a given offense directly interfere with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute. See
U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air
Station, Cherry Point, North Carolina, 36 FLRA 28, 32-36 (1990) (Marine
Corps Air Station); American Federation of Government Employees, Local
1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps
and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 906-07 (1990)
(Fort Bragg); West Point Elementary School, 29 FLRA at 1538-40; and
Fort Eustis, 29 FLRA at 968-70.
The schedule of penalties prescribed by the proposal for various
offenses modifies the Agency's schedule of penalties by limiting the
range of penalties that can be imposed for a given offense. For
example, the range of penalties for the offense of "careless workmanship
resulting in delay in production or spoilage or waste of materials"
under the Agency's schedule of penalties ranges from reprimand to
removal for a first offense, 5-day suspension to removal for a second
offense, and 10-day suspension to removal for a third offense. See
Appendix B. Under the proposed disciplinary schedule, however, the
penalties for "careless workmanship" range from reprimand to 5-day
suspension for a first offense, 5- to 10-day suspension for a second
offense, and 10-day suspension to removal for a third offense. See
Appendix A. The effect of the proposal, therefore, is to more narrowly
limit the range of penalties that can be imposed for that offense and,
thereby, to modify the penalties prescribed by the Agency. Compare
Appendix A and Appendix B as to such offenses as "unexcused or
unauthorized absence," "unexcused tardiness," "disobedience to
constituted authorities," gambling or betting, and unauthorized
possession, use, loss or damage to Government property, for other
examples of the way in which the proposal modifies the penalties
prescribed by the Agency by reducing their range.
In Fort Eustis, the Authority held that a proposal reducing the
minimum penalty that could be imposed for a given offense directly
interfered with management's right to discipline employees. See also
Marine Corps Air Station, 36 FLRA at 34. We note that the proposal in
Fort Eustis, like the proposal in this case, modified the penalty
prescribed by the agency's regulation. However, the proposal in this
case not only reduces some of the minimum penalties prescribed in the
Agency's schedule of penalties, for example, the penalty for a second
offense of "unexcused or unauthorized absence," but it reduces the
maximum penalty for many offenses as well, for example, the penalty for
a third offense of "unexcused tardiness."
In our opinion, there is no difference, in terms of the effect on
management's right to discipline, between a proposal that reduces the
minimum penalty that management can impose for a given offense and a
proposal that reduces the maximum penalty. In either case, a limitation
is imposed on management's determination of the appropriate penalty.
Consequently, consistent with Fort Eustis, the proposal would directly
interfere with management's right to discipline employees under section
7106(a)(2)(A).
However, as we noted at the outset, the proposal permits management
to impose penalties outside the range prescribed by the proposal
"depending on the gravity of the offense, the past record, and the
position of the employee." Union Response at 1. Appendix A. The
proposal, that is, requires management to impose a penalty within the
range prescribed by the proposal unless the offense is sufficiently
serious to, or the employee's past record or the nature of the
employee's position would, warrant a penalty outside the prescribed
range. We turn, then, to the question of whether this exception to the
limitations prescribed by the proposal is sufficient to render the
proposal negotiable. We conclude that it is not.
Under the exception to the proposal, management would be unable to
impose more than a 2-day suspension for a first offense of "unexcused or
unauthorized absence" unless the offense was sufficiently serious, or
the employee's past record or position was such, as to warrant that
penalty, instead of the reprimand to 2-day suspension prescribed by the
proposal. Thus, where the factors stated in the exception are not
present, management would be precluded from imposing a penalty that is
outside the range prescribed by the proposal. The effect of the
exception to the proposal, therefore, is to establish a substantive
restriction on management's determination of the appropriate penalty for
a given offense.
As we noted above, proposals that establish substantive restrictions
on management's determination of the penalty to be imposed for a given
offense directly interfere with management's right to discipline
employees. See, for example, Marine Corps Air Station, Fort Bragg, West
Point Elementary School, and Fort Eustis. Because the proposed schedule
of penalties, including the exception to that schedule, would
substantively restrict management's determination of the penalty to be
imposed for a given offense, we find that the proposal directly
interferes with management's right to discipline employees under section
7106(a)(2)(A) of the Statute.
We note that the Agency's schedule of offenses and penalties contains
a similar exception: "Remedies for offenses should normally fall within
the range shown in the schedule unless mitigating or aggravating factors
justify a remedy outside the range." See Appendix B. However, the fact
that the proposal adopts an exception to the schedule of penalties that
is substantively the same as that prescribed by the Agency does not
affect the negotiability of the proposal. See Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384, 402, 406 (1987), aff'd mem. sub nom. Patent
Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar.
30, 1988) (per curiam).
Finally, we note that the Union did not specifically claim that the
proposal constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. Moreover, even if we considered the
proposal as a proposed arrangement, there is an insufficient record on
which to determine whether the arrangement is appropriate under section
7106(b)(3). Accordingly, we conclude that the proposal is nonnegotiable
because it directly interferes with management's right to discipline
employees under section 7106(a)(2)(A) of the Statute. In light of our
conclusion, we need not address the Agency's additional claim that the
proposal directly interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
V. Order
The petition for review is dismissed.
APPENDIX A
SCHEDULE OF DISCIPLINARY OFFENSES AND RECOMMENDED REMEDIES
INSTRUCTION FOR USE OF SCHEDULE
1. This list is not intended to cover every possible type of
offense. Remedies for offenses not listed will be precribed by the head
of the activity consistent with the guidelines contained herein.
2. Many of the items listed on this schedule combine several
offenses in one statement, connected by the word "OR." Usage of the word
"OR" in a charge makes it nonspecific. Use only the items which
describe the employee's actual conduct and leave out parts which do not
apply.
3. Remedies for disciplinary offenses will generally range from the
minimum remedy to the maximum indicated. However, depending on the
gravity of the offense, the past record, and the position of the
employee, a remedy outside the general range may be imposed.
4. Suspension remedies on this schedule refer to CALENDAR DAYS.
5. For information concerning other offenses for which employees may
be disciplined by removal, fine or imprisonment, see FPM Chapter 735.
OFFENSES AND RANGES OF REMEDIES (PENALTIES)
OFFENSES FIRST OFFENSE SECOND OFFENSE THIRD OFFENSE
ATTENDANCE
EXCESSIVE Reprimand to 5-day 10-day
UNAUTHORIZED removal suspension to suspension to
ABSENCE (MORE THAN removal removal
5 CONSECUTIVE WORK
DAYS)
FALSIFYING Reprimand to 5-day 10-day
ATTENDANCE RECORD 5-day suspension to suspension to
FOR ONESELF OR suspension removal removal
ANOTHER EMPLOYEE
LEAVING JOB TO WHICH Reprimand to Reprimand to Reprimand to
ASSIGNED OR NAVY 5-day 10-day removal
PREMISES AT ANY TIME suspension suspension
DURING WORKING HOURS
WITHOUT PROPER
PERMISSION
UNEXCUSED OR Reprimand to 1 to 5-day 5-day
UNAUTHORIZED ABSENCE 2-day suspension suspension to
ON ONE OR MORE suspension removal
SCHEDULED DAYS OF
WORK OR ASSIGNED
OVERTIME
UNEXCUSED TARDINESS Reprimand Reprimand to Reprimand to
1-day 2-day
suspension suspension
CONDUCT
ACTUAL OR ATTEMPTED Reprimand to 5-day 10-day
THEFT OF GOVERNMENT removal suspension to suspension to
PROPERTY OR THE removal removal
PROPERTY OF OTHERS
CRIMINAL, DISHONEST, Reprimand to 5-day 10-day
INFAMOUS OR removal suspension to suspension to
NOTORIOUSLY removal removal
DISGRACEFUL CONDUCT
ADVERSELY AFFECTING
THE EMPLOYEE/EMPLOYER
RELATIONSHIP (ON
DUTY OR OFF DUTY)
DISOBEDIENCE TO Reprimand to 5-day 10-day
CONSTITUTED 5-day suspension suspension to
AUTHORITIES, OR suspension to removal removal
DELIBERATE REFUSAL
TO CARRY OUT ANY
PROPER ORDER FROM
ANY SUPERVISOR
HAVING RESPONSIBILITY
FOR THE WORK
OF THE EMPLOYEE;
INSUBORDINATION,
INCLUDING FAILURE TO
FOLLOW KNOWN LOCAL OR
HIGHER LEVEL POLICY
DISORDERLY CONDUCT; Reprimand to 5-day 10-day
FIGHTING; removal suspension to suspension to
THREATENING OR removal removal
ATTEMPTING TO
INFLICT BODILY
INJURY TO ANOTHER:
ENGAGING IN
DANGEROUS HORSEPLAY;
OR RESISTING
COMPETENT AUTHORITY
DISRESPECTFUL Reprimand to 5-day 10-day
CONDUCT; USE OF 5-day suspension to suspension to
INSULTING, ABUSIVE suspension 30-day removal
OR OBSCENE LANGUAGE suspension
TO OR ABOUT OTHER
PERSONNEL
FALSIFICATION Reprimand to 5-day 10-day
MISSTATEMENT, OR removal suspension to suspension to
CONCEALMENT OF removal removal
MATERIAL FACT IN
CONNECTION WITH ANY
OFFICIAL RECORD
FALSE TESTIMONY OR Reprimand to 5-day 10-day
REFUSAL TO TESTIFY removal suspension to suspension to
IN AN INQUIRY, removal removal
INVESTIGATION OR
OTHER OFFICIAL
PROCEEDING
EXCEPT REFUSAL TO
ADMIT/DENY COMMISSION
OF AN OFFENSE
WILL NOT BE GROUNDS
FOR DISCIPLINE
FILING FALSE CLAIMS Reprimand to 5-day 10-day
AGAINST THE removal suspension to suspension to
GOVERNMENT OR removal removal
KNOWINGLY AIDING AND
ASSISTING IN THE
PROSECUTION OF SUCH
CLAIMS (SEE 18 USC
287, 1001)
GAMBLING OR UNLAWFUL Reprimand to Reprimand to Reprimand to
BETTING DURING 2-day 5-day removal
WORKING HOURS suspension suspension
PROMOTION OF Reprimand to 5-day 10-day
GAMBLING ON NAVY removal suspension to suspension to
PREMISES removal removal
WILLFUL DAMAGE TO Reprimand to 5-day 10-day
GOVERNMENT PROPERTY 5-day suspension to suspension to
OR THE PROPERTY OF suspension removal removal
OTHES
MISUSE OF A Reprimand to 30-day removal
GOVERNMENT VEHICLE removal suspension to
removal
RECKLESS DRIVING
OR IMPROPER
OPERATION OF MOTOR
VEHICLE:
CAUSING PERSONAL Reprimand to 14-day 30-day
INJURY TO SELF OR removal suspension to suspension to
OTHERS OR DAMAGE TO removal removal
GOVERNMENT PROPERTY
NO PERSONAL INJURY Reprimand to Reprimand to 14-day
TO SELF OR OTHERS 5-day 10-day suspension to
OR DAMAGE TO suspension suspension removal
GOVERNMENT
PROPERTY
PERFORMANCE
CARELESS WORKMANSHIP Reprimand to 5 to 10-day 10-day
RESULTING IN 5-day suspension suspension to
SPOILAGE OR WASTE suspension removal
OF MATERIALS OR
DELAY IN PRODUCTION
COVERING UP OR Reprimand to 1 to 5-day 5-day
ATTEMPTING TO 2-day suspension suspension to
CONCEAL DEFECTIVE suspension removal
WORK; DESTROYING SAME
WITHOUT PERMISSION
FAILURE OR DELAY IN Reprimand to 1 to 5-day 5-day
CARRYING OUT ORDERS, 2-day suspension suspension to
WORK ASSIGNMENTS, suspension removal
OR INSTRUCTIONS OF
SUPERIORS
LOAFING, WASTING Reprimand to 1 to 5-day 5-day
TIME, OR INATTENTION 2-day suspension suspension to
TO DUTY suspension removal
SLEEPING ON DUTY Reprimand to 5-day 10-day
5-day suspension to suspension to
suspension 30-day removal
suspension
a. WHERE LIFE OR Reprimand to 5-day 10-day
PROPERTY IS removal suspension to suspension to
ENDANGERED removal removal
UNAUTHORIZED USE Reprimand to 5-day 10-day
OF OR POSSESSION 2-day suspension to suspension to
OF LOSS OF OR suspension 30-day removal
DAMAGE TO suspension
SAFETY
FAILURE TO OBSERVE Reprimand to 1 to 5-day 10-day
PRECAUTIONS FOR 2-day suspension suspension to
PERSONAL SAFETY suspension removal
POSTED RULES, SIGNS,
WRITTEN OR ORAL
SAFETY INSTRUCTIONS
OR TO USE PROTECTIVE
CLOTHING OR
EQUIPMENT
VIOLATION OF SAFETY Reprimand to 5-day 10-day
REGULATION WHICH 5-day suspension to suspension to
ENDANGERS LIFE OR suspension 30-day removal
PROPERTY suspension
ENDANGERING THE Reprimand to 5-day 10-day
SAFETY OF OR CAUSING removal suspension to suspension to
INJURY TO PERSONNEL removal removal
THROUGH CARELESSNESS
FAILURE TO OBSERVE Reprimand to 5-day 10-day
NO SMOKING removal suspension to suspension to
REGULATIONS OR removal removal
CARRYING MATCHES IN
RESTRICTED AREAS
VIOLATING TRAFFIC Reprimand to Reprimand to 5 to 10-day
REGULATIONS, 2-day 5-day suspension
RECKLESS DRIVING ON suspension suspension
NAVY PREMISES, OR
IMPROPER OPERATION
OF MOTOR VEHICLE
SECURITY
FAILURE TO SAFEGUARD Reprimand to Reprimand to 10-day
CLASSIFIED MATTER 5-day 14-day suspension to
OR OTHER SECURITY suspension suspension removal
VIOLATIONS
A. WHEN CLASSIFIED Reprimand to 5-day 10-day
MATERIAL HAS BEEN removal suspension to suspension to
COMPROMISED removal removal
PROHIBITED PERSONNEL
PRACTICE
COMMITTING Reprimand to 5-day 10-day
PROHIBITED removal suspension to suspension to
PERSONNEL removal removal
PRACTICE IN
VIOLATION OF 5
USC 2302
UNAUTHORIZED DISCLOSURE
OR USE OF PROTECTED
MATERIAL
UNAUTHORIZED Reprimand to 14-day 30-day
DISCLOSURE OR USE removal suspension to suspension to
OF INFORMATION removal removal
OR OTHER PROTECTED
MATERIAL (e.g.,
RECORDS COVERED
BY THE PRIVACY
ACT OR UNDER 42
CFR PART 2 (CEAP
RECORDS)
DISCRIMINATION
DISCRIMINATION Reprimand to 14-day 30-day
AGAINST AN EMPLOYEE removal suspension to suspension to
OR APPLICANT BASED removal
ON RACE, COLOR
RELIGION, SEX, HANDICAP,
NATIONAL, ORIGIN, OR
AGE, OR ANY REPRISAL
OR RETALIATION
ACTION AGAINST
A COMPLAINANT,
REPRESENTATIVE,
WITNESS, OR OTHER
PERSON INVOLVED IN
THE EEO COMPLAINT
PROCESS
SEXUAL HARASSMENT Reprimand to 14-day 30-day
removal suspension to removal
removal
INTOXICANTS
REPORTING FOR DUTY Reprimand to 5-day 10-day
OR BEING ON DUTY removal suspension to suspension to
UNDER THE INFLUENCE removal removal
OR INTOXICANTS,
UNAUTHORIZED POSSESSION
OF OR ATTEMPTING TO
BRING INTOXICANTS
ON NAVY PREMISES
REPORTING FOR DUTY Reprimand to 5-day 10-day
WHILE UNDER THE removal suspension to suspension to
INFLUENCE OF A removal removal
NARCOTIC OR DANGEROUS
DRUG, UNAUTHORIZED
POSSESSION OF, OR
USE OF SAME ON
GOVERNMENT PROPERTY
OR ON DUTY
UNAUTHORIZED Reprimand to 5-day 10-day
SELLING OR removal suspension to suspension to
INTOXICANTS ON removal removal
NAVY PREMISES
UNAUTHORIZED SALE Reprimand to 5-day 10-day
OR TRANSFER OF A removal suspension to suspension to
NARCOTIC OR DANGEROUS removal
DRUG ON GOVERNMENT
PROPERTY OR DURING
DUTY HOURS
DRUG TESTING
SUBSTITUTING Reprimand to 5-day 30-day
ADULTERATING OR removal suspension to suspension to
OTHERWISE removal
TAMPERING WITH A
URINE SAMPLE,
TESTING EQUIPMENT
OR RELATED
PARAPHERNALIA
ATTEMPTED Reprimand 5-day 30-day
OR ACTUAL to removal suspension to suspension to
FALSIFICATION, removal removal
MISSTATEMENT
OR CONCEALMENT
OF A MATERIAL
FACT, RECORD,
CORRESPONDENCE
OR OTHER COMMUNICATION
PREPARED IN
CONNECTION WITH
THE COLLECTION,
HANDLING,
TRANSPORTATION OR
TESTING OR URINE
SAMPLES
REFUSAL TO PROVIDE Reprimand to 5-day 30-day
A URINE SAMPLE removal suspension to suspension to
WHEN REQUIRED removal removal
APPENDIX B
SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES
1. Instructions for Use. This schedule is a guide. Remedies for
offenses should normally fall within the range shown in the schedule
unless mitigating or aggravating factors justify a remedy outside the
range. For example, remedies greater than those shown can be
appropriate when an aggravated offenses, frequent infractions, or
simultaneous multiple offenses are established.
a. The schedule does not cover every possible offense. When
specifying an offense not listed on the schedule, the use of terms such
as "theft" or "fraud," which require establishing the element of intent,
should only be used when the element of intent can be proven.
Management officials may contact their servicing civilian personnel
office for assistance.
b. Some of the offenses listed in this schedule combine several
offenses in one statement connected by the word "OR." Use only the part
of the statement which describes the employee's actual conduct; leave
out parts which do not apply.
c. Due to the nature of their positions, offenses by supervisors or
managers may warrant more severe remedies than the same offense
committed by a non-supervisory employee.
d. The schedule generally provides for a range of remedies, e.g.,
Reprimand to Removal, to provide flexibility in correcting conduct
deficiencies. Selection of a reasonable remedy from such a broad range
should be made with good judgment. Excessive arbitrary or capricious
remedies, and remedies selected without consideration of mitigating
factors may be reversed by third parties if challenged.
e. All disciplinary actions are to be taken following the provisions
of law.
f. Servicing civilian personnel offices can provide advice and
assistance with issues such as establishing the required nexus between
off-duty misconduct and the efficiency of the service, appropriate
wording of the charge(s), application of mitigating factors, consistency
of remedies, etc., based on current case law. Activity
heads/commanders, managers, and supervisors delegated authority to
propose and/or decide disciplinary actions are encouraged to take
advantage of such assistance to ensure conformance with this
instruction.
2. Past Offenses
a. When used to select a range of remedies or remedy, a past offense
must be described in sufficient detail to enable the employee to
understand and respond to it. Past offenses may be used in determining
a range of remedies or remedy when:
(1) The employee was disciplined in writing;
(2) The employee was provided the opportunity to dispute the
action to a higher level; and
(3) The action was made a matter of record in the employee's
Official Personnel Folder.
b. Any past offenses may form the basis for proposing a remedy from
the next higher range of remedies for a subsequent offense. The
offenses need not be identical or similar.
c. The following actions may not be counted as past offenses for
determining a range of remedies (however, actions discussed in
paragraphs (1) and (2) may be considered when determining an appropriate
remedy within a range for any subsequent offenses):
(1) Oral admonishments and letters of caution or requirement.
(2) Letters of Reprimand dated more than two years before the
date of any advance written notice required under this CPI.
(3) Reductions in grade or pay not effected for disciplinary
reasons.
3. Other Statutory and Regulatory Offenses. For information
concerning other offenses for which employees may be disciplined by
removal, fine or imprisonment, including offenses which require minimum
mandatory remedies (such as misuse of government vehicles, Hatch Act
violations, and giving gifts to superiors), see SECNAVINST 5370.2H and
Chapter 735 of the Federal Personnel Manual (FPM).
4. Drug and Alcohol Abuse Offenses. Any employee who engages in
misconduct involving drugs and/or alcohol shall be disciplined according
to this Appendix. Special situations are described below.
a. Voluntary referral to the Civilian Employee Assistance Program
(CEAP). An employee who voluntarily refers himself or herself to the
CEAP as a user of illegal drugs under the "safe harbor" provision of CPI
792 will be exempt from disciplinary action for the admitted acts of
illegal drug use, including possession incident to such use, provided
the employee meets and complies with the requirements of CPI 792-3,
paragraph 7e(2).
b. Assertion of a handicapping condition in reply to a proposed
action. Any employee who asserts a physical or mental impairment
(handicapping condition) in connection with drug or alcohol-related
unacceptable performance or misconduct shall be provided reasonable
accommodation when the employee:
(1) Establishes by competent medical evidence that he or she is
a qualified handicapped person, and
(2) Demonstrates that the unacceptable performance or
misconduct is caused by the handicapping condition of alcoholism
or drug dependency.
NOTE: See McCaffrey v. U.S. Postal Service, 88 FMSR 5043, 36 MSPR
224 (1988), and Brinkley v. Veterans Administration, 88 FMSR 5314, 37
MSPR 682 (1988), for a thorough description of a employee's burdens in
meeting these two requirements, as applied by the U.S. Merit Systems
Protection Board. Note, also, that under Terry v. Department of the
Navy, 88 FMSR 5024, 39 MSPR 561 (1989), an activity must inquire
sufficiently to substantiate an employee's claim of handicapping
condition where the activity has reasonable notice of the possible
existence of the handicap.
c. Undue hardship on an activity/command. 29 CFR 1613.704(c)
provides that reasonable accommodation is not required when it would
impose an undue hardship on the operation of the program of the
employee's activity/command, such as continuing an unreliable employee
in a critical function or in duties which could affect the health or
welfare of others.
d. Conduct which takes an employee outside the protection of the
Rehabilitation Act. Similar to paragraph c. above, the MSPB has held
that there are ". . . certain actions of misconduct which, when
committed by an employee who is an alcoholic or drug addict, take that
employee outside the scope of the protecting legislation because the
misconduct renders that person not a 'qualified' handicapped
individual." Egregious or notorious misconduct that hampers an
employee's ability to perform his or her duties or to represent the
agency, or which strikes at the core of the job or the agency's mission,
can, standing alone, disqualify a Federal employee from his or her
position (see Hougens v. U.S. Postal Service, 88 FMSR 5345, 38 MSPR 135
(1988)).
e. Trafficking. Trafficking in drugs is misconduct which does not
normally entitle an employee to reasonable accommodation. Accordingly,
an employee who traffics in drugs will be subject to remedies as
provided for in this appendix.
SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES
RANGE OF REMEDIES
FIRST SECOND THIRD
OFFENSE OFFENSE OFFENSE OFFENSE
ALCOHOL ABUSE
Unauthorized 14-day 30-day Removal
possession, sale suspension suspension
or transfer of to removal to removal
alcohol on duty
or on a military
ship, aircraft,
or installation
*Use of, or being 14-day 30-day Removal (R
under the influence suspension suspension
of alcohol on duty to removal to removal
or on a military
ship
ATTENDANCE
Excessive Reprimand 10-day Removal
unauthorized to removal suspension
absence (more than to removal
5 consecutive
workdays)
Leaving job to Reprimand Reprimand Reprimand
which assigned or to 5-day to 10-day to removal
Department of the suspension suspension
Navy premises at
any time during
working hours
without proper
authorization
Unexcused or Reprimand 5-day 10-day
unauthorized to suspension suspension
absence on one or removal to removal to removal
more scheduled days
of work or assigned
overtime
Unexcused tardiness Reprimand Reprimand Reprimand
to 5-day to removal
suspension
* See paragraph 4b of this appendix.
DISCRIMINATION
Discrimination Reprimand to 14-day 30-day
against an employee removal suspension suspension
or applicant based to removal to removal
on race, color,
religion, sex,
handicap, national origin,
or age, or any reprisal or
retaliation action against
a complainant, representative
witness, or other person
involved in the EEO complaint
process
Sexual harassment Reprimand to 14-day 30-day
removal suspension suspension
to removal to removal
DRUG ABUSE
* Unlawful use Reprimand Removal
or possession of to removal
drugs or drug
paraphernalia
on or off duty
* Unlawful Removal
distribution, sale,
or transfer of
drugs or drug
paraphernalia
on or off duty
* Unlawful use or Removal
possession of drugs
or drug paraphernalia
on a military ship or
aircraft
DRUG TESTING
Refusal to provide Reprimand Removal
a urine sample when to removal
required
* See paragraph 4b of this appendix.
Substituting, 30-day Removal
adulterating suspension
or otherwise to removal
tampering with a
urine sample, testing
equipment or related
paraphernalia
Attempting or actual Reprimand 14-day 30-day
falsification, to removal suspension suspension
misstatement or to removal to removal
concealment of a
material fact,
record, correspondence
or other communication
prepared in connection
with the collection,
handling, transportation
or testing of urine samples
MISCELLANEOUS OFFENSES
Betting, gambling, Reprimand 5-day 10-day
or the promotion to removal suspension suspension
thereof on duty to removal to removal
or on Department
of the Navy premises
Careless workmanship Reprimand 5-day 10-day
resulting in delay to removal suspension suspension
in production or to removal to removal
spoilage or waste
of materials
Criminal, dishonest, Reprimand 14-day 30-day
infamous or to removal suspension suspension
notoriously to removal to removal
disgraceful conduct
Disobedience to Reprimand 5-day 10-day (R
constituted to removal suspension suspension
authorities; to removal to removal
deliberate refusal
or failure or
delay in carrying
work assignment
or instruction;
insubordination,
including failure
to follow local or
higher level policy
MISCELLANEOUS OFFENSES
A) Disrespectful Reprimand 5-day 10-day
conduct, use of to 5-day suspension suspension
insulting, abusive suspension to removal to removal
or obscene language
to or about other
personnel
R) Falsification Reprimand 14-day 30-day
(or aiding or to removal suspension suspension
assisting in to removal to removal
falsification) of
time and attendance
records or claims
against the
government
A) Falsification, Reprimand 14-day 30-day
misstatement, or to removal suspension suspension
concealment of to removal to removal
material fact in
connection with any
official record
A) False testimony Reprimand 14-day 30-day
or refusal to to removal suspension suspension
testify in an to removal to removal
inquiry, investiagtion
or other official
proceeding
Loafing; wasting Reprimand 5-day 10-day
time; inattention 5-day suspension suspension
to duty; sleeping suspension to removal to removal
on duty
R) Making threats Reprimand 5-day 10-day
to other employees to removal suspension suspension
or supervisor; to removal to removal
fighting; engaging in
dangerous horseplay
* Misuse of a Reprimand 30-day Removal
Government vehicle to removal suspension
to removal
R) * 31 U.S.C. 1349(b) requires a minimum suspension of one month
even for the first offense, if the misuse was willful, i.e.,
employee acted either with knowledge that the intended use would be
characterized as unofficial or with reckless disregard of whether
such use was unofficial.
MISCELLANEOUS OFFENSES
Reckless driving or improper
operation of motor vehicle:
Causing personal Reprimand 14-day 30-day
injury to self or to removal suspension suspension
others or damage to removal to removal
to government
property
No personel Reprimand Reprimand 14-day
injury to self to 5-day to 10-day suspension
or others or suspension suspension to removal
damage to
government
property
Unauthorized Reprimand to 14-day 30-day
possession, use, removal suspension suspension
loss or damage to to removal to removal
government property
or the property of
others
PROHIBITED PERSONNEL PRACTICE
Committing a Reprimand to 14-day 30-day
prohibited removal suspension suspension
personnel practice to removal to removal
(See 5 U.S.C. 2302)
SAFETY
Failure to observe Reprimand 5-day 10-day
posted smoking to removal suspension suspension
prohibitions to removal to removal
Failure to use Reprimand 5-day 10-day
protective clothing to removal suspension suspension
or equipment to removal
40 FLRA 43
40 FLRA NO. 7
Dept. of Justice, Immigration and Naturalization Service, El Paso,
Texas and AFGE, National Border Patrol Council, Local 1929 (Cohen,
Arbitrator), Case No. 0-AR-1855 (Decided April 9, 1991)
STATUTE
7122(a)
7121(d)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
PROCEDURAL RULING
DOCUMENTS SUBMITTED WITH EXCEPTIONS NOT CONSIDERED
BY THE ARBITRATOR
JURISDICTION OF THE ARBITRATOR
PROHIBITED PERSONNEL ACTION
5 U.S.C. 2302(b)(1)
DIGEST NOTES
The grievance concerned an employee's claim that, because of
allergies and asthma which had developed while he was assigned to the El
Paso Border Patrol Sector, he was a "qualified handicapped person" under
29 C.F.R. 1613.702(f) and was entitled, among other considerations, to
reassignment to the northeast United States as a reasonable accomodation
for his handicapped condition. The Arbitrator ruled that the grievant
was entitled to the right of first refusal of any limited duty
assignments which become available in the El Paso area for which he is
qualified. The Arbitrator also awarded backpay for certain days for
which the grievant was denied sick leave and charged with being absent
without leave.
As a preliminary matter, the Authority denied the Union's motion to
strike documents attached as exhibits to the Agency's exceptions which
were not part of the hearing record before the Arbitrator and,
therefore, constitute new evidence. The Authority noted that the
challenged exhibits and arguments address whether the Arbitrator's award
is deficient as conflicting with 7121(d) and, therefore, are properly
before it. "However, we note in this regard that good practice dictates
that such arguments should be brought to the attention of the
arbitrator."
The Authority noted that on the jurisdictional issue raised by the
Agency that when an employee affected by a prohibited personnel practice
under 5 U.S.C. 2302(b)(1) has raised the matter under a statutory
procedure, the employee may not file a written grievance under the
negotiated grievance procedure concerning the same matter. For a
grievance to be precluded by section 7121(d), two conditions must be
met: (1) the matter which is the subject of the grievance must be the
same matter which was the subject of the action initiated under the
statutory procedure; and (2) such matter must have been raised earlier
by the employee timely initiating an action under the statutory
procedure.
In the instant case, the Authority found that the "matter" in the
grievance, for the purposes of 7121(d), concerned the Agency's failure
to take a personnel action based on discrimination against the grievant
because of handicapping condition, which would be a prohibited personnel
practice. The Authority also found that the grievant had earlier filed
a formal EEO complaint regarding the same matter as that contained in
the grievance. Accordingly, the conditions of 7121(d) have been met and
the Arbitrator was precluded under 7121(d) from resolving the grievance
submitted to him. Therefore, the Authority set aside the award.
Case No. 0-AR-1855
U.S. DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE EL
PASO, TEXAS
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL BORDER PATROL
COUNCIL, LOCAL 1929
(Union)
DECISION
April 9, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Sanford Cohen filed by the Agency and 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. Both
parties filed oppositions to each other's exceptions. /1/
The grievance concerned an employee's claim that, because of
allergies and asthma which had developed while he was assigned to the El
Paso Border Patrol Sector, he was a "qualified handicapped person" under
29 C.F.R. Section 1613.702(f) and was entitled, among other
considerations, to reassignment to the northeast United States as a
reasonable accommodation for his handicapping condition. The Arbitrator
ruled that the grievant was entitled to the right of first refusal of
any limited duty assignments which become available in the El Paso area
for which he is qualified. The Arbitrator also awarded backpay for
certain days for which the grievant was denied sick leave and charged
with being absent without leave (AWOL).
As one of its exceptions, the Agency asserts that the Arbitrator was
without jurisdiction to decide this case under section 7121(d) of the
Statute because the grievant had filed a formal equal employment
opportunity (EEO) discrimination complaint on the same matter before
filing the grievance in this case. For the following reasons, we agree
with the Agency that the grievant filed a formal EEO complaint on
February 22, 1989, that concerned the same matter on which the grievant
filed a grievance on July 24, 1989. Accordingly, we will set the award
aside because the Arbitrator lacked jurisdiction under section 7121(d)
of the Statute to resolve the grievance.
II. Background and Arbitrator's Award
The grievant is a Border Patrol agent and has been assigned to the
Fabens, Texas station in the El Paso Border Patrol Sector since 1984.
In 1987, the grievant began to suffer increasingly from allergies,
sinusitis, and asthma. Medical tests diagnosed the allergies as
resulting from exposure to "virtually all the trees, grasses, weeds,
molds and dust in the Southwest desert." Award at 2. In April 1988, the
grievant filed a claim with the Office of Workers' Compensation Programs
(OWCP) for reimbursement for medical treatment and expenses. The
request was granted. At the same time, the grievant "submitted a
request to the Agency for a management need transfer, at (G)overnment
expense, to the Northeastern part of the United States." Id. at 3. The
transfer request was denied.
In the latter part of 1988, the grievant requested the Agency to
provide him with dust masks. The Agency responded negatively to that
request in March 1989. However, "(o)n May 19, 1989, after the OWCP
accepted the (g)rievant's claim for benefits, (g)rievant received notice
from his EEO counselor of his entitlements under Workers' Compensation
including a prescription for dust masks." Id. at 4. The grievant also
requested the Agency to provide him with clean vehicles in which to
work. When the Agency replied that clean vehicles were not available
due to lack of funds, the grievant requested that he be placed on
limited duty, administrative leave, or sick leave until such time as
clean vehicles became available. That request was denied by the Patrol
Agent in Charge (PAIC). The grievant then made a request to the El Paso
Sector Health and Safety Committee "that the committee find that the
unnecessary exposure to the allergens to which he was allergic was a
violation of Article 17 Section A of the Agreement." Id. Article 17,
entitled Health and Safety, section A of the parties' collective
agreement provides: "The Agency agrees to provide safe and healthful
working conditions, taking into account the mission of the Agency and
the inherent hazards of the job performed."
The grievant filed formal EEO discrimination complaints on February
22, 1989, and July 5, 1989. See Exceptions, Exhibits 2 and 4. In his
complaint of February 22, 1989, the grievant alleged, in part, that
management had failed to afford him a reasonable accommodation with
respect to his handicapping condition of an allergic asthmatic condition
by denying his request for a transfer to the northeastern United States.
See Exceptions, Exhibit 2 at 3. In his complaint of July 5, 1989, the
grievant alleged that management had failed to provide him with a
reasonable accommodation for his handicapping condition by not providing
dust masks, not assigning him a new air-tight vehicle, and not
restructuring his position at the Station. See Exceptions, Exhibit 4 at
8.
On July 24, 1989, the grievant filed a formal grievance under the
parties' negotiated grievance procedure. See Exceptions, Exhibit 5. In
the grievance, the grievant noted that management had denied his
requests for reasonable accommodations for his allergic asthmatic
condition. The grievant requested that he be transferred to the
northeastern part of the United States and contended that he was
entitled to such an accommodation from management "as a qualified
handicapped individual (allergies)." See id. at 2.
On July 25, 1989, the grievant notified the Agency of a medical
certificate which advised that he should work only in a dust-free
vehicle. The PAIC ordered the grievant to use the vehicles available.
The grievant refused to use the available vehicles or to work because
the vehicles were not dust-free. Because of the grievant's refusal to
work, he was listed as being AWOL for July 25, 26 and 27.
On July 29, there was a similar dispute over using a vehicle which
the grievant alleged was dirty. The PAIC ordered the grievant to wash
out the vehicle with a water hose. The grievant did that and as a
result damaged electronic equipment in two vehicles. The grievant then
followed the orders of the PAIC to use the PAIC's vehicle on the tour of
duty for that night.
On August 21, the Agency indicated, in an interim response to the
grievant's step 3 grievance, that it was "unable to address the
grievance until it received the medical report of a fitness-for-duty
examination that had been ordered for the (g)rievant." Id. at 7. On
August 30, the grievant underwent a "Histamine Bronchial Challenge." The
doctor's written report of the test stated that the grievant's
"hyper-reactivity was found to be minimum." Id. On October 20, as part
of the fitness-for-duty examination, the grievant submitted to a
"Methocholine Challenge" which resulted in a finding that the "(g)
rievant's response does not support a diagnosis of bronchospastic
airways disease." Id.
The grievance was submitted to arbitration. The Arbitrator noted
that there was a dispute between the Agency and the Union as to the
issue to be arbitrated. The Union stated the issue as:
Did management violate Article 17, Section A of the Collective
Bargaining Agreement when it failed to provide the grievant with a
reasonable accommodation to his handicapping condition? If so,
what shall the remedy be?
Id. at 1.
The Agency stated the issue as:
Did the Agency violate Article 17 A of the negotiated agreement
by not providing safe and healthful working conditions for the
grievant, taking into account the mission of the (A)gency and
inherent hazards of the job performed and, if so, what shall the
remedy be?
Id.
The Arbitrator noted that the Union included "a conclusion that the
Agency does not accept, i.e., that (the grievant) is a handicapped
employee, entitled to 'reasonable accom(m)odation(,)'" while the Agency
"would limit the issue to the consideration of whether the employer, in
some respect, violated Article 17A(.)" Id. The Arbitrator concluded
that "the issue is fully framed by the respective statements with the
qualification that this conclusion is not to be construed as a prior
determination on the merits of any arguable propositions embodied in the
two statements." Id.
In summarizing the Union's position, the Arbitrator noted the Union's
arguments that the grievant suffered from a severe medical condition
that "severely limit(ed) his ability to perform his normal duties as a
Border Patrol Agent in the Southwest area(,)" and that the Agency
violated agreement when it "with full knowledge of (g)rievant's medical
condition, required that he work in a hostile environment." Id. at 9.
The Arbitrator also noted the Union's argument that the grievant "is a
'qualified' handicapped employee and therefore is entitled to special
consideration under law." Id. at 10. The Arbitrator stated that the
grievant "claims that he is an 'allergic asthmatic,' a condition
construed as handicapping in Bernadine Lamb v. Department of the Navy,
EEOC No. 03850215(,)" and that he "believes he meets the definition of a
'qualified handicapped person' under the definition set forth in 29 CFR
1613.702(f)." Id.
The Union also contended to the Arbitrator that the Agency's refusal
to supply requested information that would bear on whether a transfer
for the grievant would result in a hardship to the Agency was a
violation of section 7116(a)(1), (5) and (8) of the Statute. The Union
maintained that the information it sought "would have shown that the
'reasonable accom(m)odation sought by the (g)rievant would not have
imposed an undue burden upon the Agency and that a GS-9 Border Patrol
Agent vacancy exists in the Watertown, New York Border Patrol Station."
Id. at 11. The Union asserted that while the grievant at first sought
only "a simple job restructuring(,)" the grievant "now believes that
only relocation to the northeastern part of the country would provide a
feasible way of assuring that he fits the definition of a qualified
handicapped person." Id.
The Agency maintained that Article 17, section A of the parties'
agreement does not require management to supply special equipment to the
grievant and asserted that "it would be impossible to accomplish the
mission of the service if Article 17 (A) were interpreted to mean that
management must provide a dust-free vehicle or dust-free environment for
Border Patrol Agents." Id. at 12. The Agency denied that the grievant
was improperly refused a limited duty assignment or sick leave. The
Agency disputed the grievant's "interpretation of 'reasonable
accom(m)odation,' his claim of 'qualified handicap' status, and his
entitlement to the remedy he seeks through arbitration." Id. at 14. The
Arbitrator noted that the Agency also questioned the grievant's reliance
on Bernadine Lamb v. Department of the Navy and stated that the Agency
"does not concede that (the g)rievant has met the burden of proving that
he is a 'qualified handicapped person' under the Rehabilitation Act."
Id. The Agency argued that there was no support for the grievant's
"contention that he suffers from reactive airway disease(,)" and even
assuming that he does and "is found to be a qualified handicapped
person, a transfer to the northeastern part of the United States is not
a reasonable accom(m)odation." Id. at 14-15.
The Arbitrator found that medical records established that the
grievant was allergic to the dust and pollens found in the El Paso,
Texas area. However, he ruled that while the evidence supported a
finding that the grievant was "occasionally incapacitated during certain
seasons(,)" the grievant had not presented "the level of proof required
to establish his status as a 'qualified handicapped' person." Id. at 17.
The Arbitrator found that the Agency had failed to comply with
Article 17, section A of the parties' collective bargaining agreement
because it had not provided the grievant with "safe and healthful
working conditions(,)" and had failed to comply with Article 20 which
"specifies that any employee who has been injured or incapacitated and
(is) able to perform limited duty will be assigned to such duties that
he is able to perform, when such duty is available, until he has
recovered from the injury or incapacitation." Id. at 17-18. The
Arbitrator found that "the Agency's abrupt rejection of (the g)
rievant's request for limited duty did not comply with either the letter
or spirit of Article 20." Id. at 19.
The Arbitrator rejected the Agency's contentions that there were no
limited duty positions at the Fabens station and that the Agency did not
have permanent limited duty positions. The Arbitrator noted that other
employees in the El Paso Sector had been assigned to limited duty. The
Arbitrator made the following award:
The Agency will offer (the grievant) a right of first refusal of
any limited duty assignments that become available in the El Paso
(S)ector and that he is qualified to perform, subject to the
condition that his treating physician certifies that he is in need
of temporary reprieve from regional allergens at the time that the
limited duty assignment is available. Because of (the) Agency's
failure to inquire as to the availability of limited duty in the
El Paso (S)ector on June 12, 13, 15 and July 25, 26, 27, 1989, the
AWOL's charged against (the grievant) for those days will be
removed from his record and he will be made whole for the loss of
salary and other benefits on the days noted.
Id. at 20.
III. The Arbitrator Lacked Jurisdiction Under Section
7121(d) of the Statute
A. Positions of the Parties
1. The Agency
The Agency maintains that the Arbitrator lacked jurisdiction over the
grievance under section 7121(d) of the Statute because the grievant had
already filed an EEO complaint over the matter. /2/ The Agency states
that the grievance was filed on July 24, 1989, and that EEO complaints
had been filed on February 22, 1989, and July 5, 1989, on the same
matter raised in the grievance -- the grievant's "allegation that
management failed to accommodate his alleged handicapping condition."
Exceptions at 10.
The Agency states that on February 22, 1989, the grievant filed an
EEO complaint, No. I-89-5654, in which he alleged that management had
failed to provide him with a reasonable accommodation for his
handicapping condition of asthma. The complaint alleged that management
had not transferred him at Government expense to the northeastern United
States and that management had delayed processing his claim for workers'
compensation filed with the OWCP. See id. at 11; Exceptions, Exhibit
2. The Agency asserts that "the allegation that management failed to
accommodate (the grievant's) handicap by refusing to reassign him to a
duty station in the Service's Northeastern Region concerns precisely the
same matter posed by the grievance leading to the instant award and
repeated by the Union in its arguments before the Arbitrator."
Exceptions at 11.
The Agency states that the grievant filed another EEO complaint on
July 5, 1989, No. I-89-5705, in which he alleged that management failed
to provide him with reasonable accommodation for his allergy problem.
See id.; Exceptions, Exhibit 4. In that complaint, the grievant alleged
that management refused to make a reasonable accommodation when it (1)
recommended the use of dust masks supplied by the Agency rather than
purchased under a doctor's prescription; (2) required the grievant to
use sick leave when disabled by his allergies; (3) refused to assign
him a new, air-tight vehicle; and (4) refused to restructure a new
position at the El Paso Station headquarters and reassign the grievant
to that position. Id.
The Agency states taht the word "matter" as used in section 7121(d)
of the Statute "refers to prohibited personnel practices under 5 U.S.C.
section 2302(b)(1)," such as "complaints of discrimination against an
employee, like the one the (g)rievant sought to press through the
negotiated procedure here, 'on the basis of handicapping condition, as
prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.
C. (Section) 791) . . . .'" Id. at 12 (quoting 5 U.S.C. Section 2302(
b)(1)(D)). The Agency asserts that "the (a)ward in question here is
void ab initio because it purports to cover the same 'matter' which the
(g)rievant had elected to raise under the EEOC's statutory appeals
procedure by filing not one, but two formal EEO complaints based upon
his alleged handicapping condition prior to initiating the grievance
leading to the award at issue here." Id. at 12-13.
2. The Union
The Union contends that the evidence presented by the Agency to
support its contention that the Arbitrator lacked jurisdiction in the
matter should not be considered because neither the Agency's contention
nor the evidence was presented to the Arbitrator at the hearing. The
Union contends that the Authority should reject the Agency's attempt to
present new evidence in the case and that the Agency's arguments
concerning the Arbitrator's jurisdiction under section 7121(d) should
not be considered.
The Union disputes the Agency's argument that the issue in the
grievance decided by the Arbitrator was the same as the matter
complained of in formal EEO discrimination complaints. The Union points
out that the Agency never raised the issue of lack of jurisdiction at
the arbitration hearing and asserts that the issue before the Arbitrator
was whether there was a violation of a health and safety provision in
the parties' collective bargaining agreement. The Union states that
"(t)he (A)gency has not presented, nor can they present, any evidence,
legitimately or otherwise, which would show that the grievant or the
Union filed a formal EEO Complaint alleging that management violated
Article 17(,) section A of the (agreement)." Union's Opposition at 4.
In a footnote to that statement, the Union states:
The EEO documents the (A)gency improperly submitted with their
exceptions deal with discrimination and reprisal in connection
with the (A)gency's: 1) mismanagement and mishandling of the
grievant's OWCP claim, and; 2) failure to provide the grievant
with a requested reasonable accommodation to his handicapping
condition (which dealt with his receiving dust masks, a new
vehicle for his exclusive use, the restructuring of his position
and use of official time and a government vehicle to receive
medical treatments).
Id. at 4 n.4.
B. Analysis and Conclusions
As a preliminary matter, we deny the Union's motion to strike 14
documents attached as exhibits to the Agency's exceptions. Those
documents relate to the Agency's claim that the Arbitrator was without
jurisdiction under section 7121(d) of the Statute because of statutory
EEO complaints filed earlier on the same matter as that in the
grievance. The Union contends that the documents were not part of the
hearing record before the Arbitrator and, therefore, constitute new
evidence that was not presented before the Arbitrator. Further, the
Union requests that the Authority not consider the Agency's arguments
concerning the Arbitrator's jurisdiction.
We find that there is no basis for granting the Union's motion. The
challenged Agency exhibits and arguments address whether the
Arbitrator's award is deficient as conflicting with section 7121(d) of
the Statute and, therefore, are properly before us. Accordingly, we
will consider the Agency's arguments that the award is deficient under
section 7121(d) of the Statute. However, we note in this regard that
good practice dictates that such arguments should be brought to the
attention of the arbitrator.
The Statute provides in section 7121(d) that when an employee
affected by a prohibited personnel practice under 5 U.S.C. Section
2302(b)(1), such as an allegation of discrimination, has raised the
matter under a statutory procedure, the employee may not file a written
grievance under the negotiated grievance procedure concerning the same
matter. For a grievance to be precluded by section 7121(d), two
conditions must be met: (1) the matter which is the subject of the
grievance must be the same matter which was the subject of the action
initiated under the statutory procedure; and (2) such matter must have
been earlier raised by the employee timely initiating an action under
the statutory procedure. See American Federation of Government
Employees, Local 1760 and U.S. Department of Health and Human Services,
Social Security Administration, Office of Hearings and Appeals, Region
II, 36 FLRA 2121, 215-16 (1990) (Office of Hearings and Appeals, Region
II) (award set aside because the matter before the arbitrator was
precluded from being raised as a grievance by section 7121(d) of the
Statute; the grievant had earlier raised the matter of her suspension
as a formal complaint of discrimination under the statutory EEO
procedure).
In U.S. Department of Justice, United States Marshals Service and
International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564
(1986), the Authority held that an EEO complaint filed over a suspension
barred a later grievance over the same matter. The Authority discussed
in that case what constitutes a "matter" for purposes of section 7121(d)
and noted that "(t)he term 'matter' described in section 7121(d)
pertains to prohibited personnel practices under section 2302(b)(1)."
Id. at 567. Further, the Authority noted that prohibited personnel
practices for purposes of 5 U.S.C. Section 2302(b) are any personnel
actions defined in section 2302(a). The Authority stated that "a
personnel action is central to the prohibited practice of section
2302(b)(1) and specifically encompasses recommended and approved
actions." Id. As relevant to the instant case, section
2302(a)(2)(A)(iv) defines a personnel action as "a detail, transfer, or
reassignment(.)"
In this case, the grievance filed on July 24, 1989, specifically
concerned the grievant's allegation that he was not afforded a
reasonable accommodation for his handicapping condition related to
allergies and asthma and his request to be "transferred, at Government
expense, to the northeastern part of the United States." Exceptions,
Exhibit 5 at 2. The grievant asserted in the grievance that he was
entitled to a transfer as an accommodation because he was a "qualified
handicapped individual" due to his allergies. Id. At the arbitration
hearing, the Arbitrator accepted the Union's statement of the issue as
well as the issue proposed by the Agency. The Union's statement of the
issue alleged a violation of Article 17 of the parties' collective
bargaining agreement and further charged that the Agency "failed to
provide the grievant with a reasonable accommodation to his handicapping
condition." Award at 1.
The Arbitrator considered and rejected the Union's contentions that
the grievant was a "'qualified handicapped person' under the definition
set forth in 29 CFR 1613.702(f)" and that "only relocation to the
northeastern part of the country would provide a feasible way of
assuring that he fits the definition of a qualified handicapped person."
Id. at 10, 11. The grievant also argued before the Arbitrator that he
was denied reasonable accommodation for his handicapping condition when
the Agency refused to provide a limited duty assignment, a dust-free
vehicle, and prescription dust masks and when the Agency charged him
with being AWOL for certain days instead of granting sick leave for
those days. We find that the substance of the grievance was the
grievant's claim that he was discriminated against on the basis of his
handicapping condition when the Agency refused to transfer him to the
northeastern United States. Therefore, the "matter" in the grievance,
for purposes of section 7121(d) of the Statute, concerned the Agency's
failure to take a personnel action (that is, to transfer the grievant)
based on discrimination against the grievant because of a handicapping
condition, which would be a prohibited personnel practice under 5 U.S.C.
Section 2302(b)(1)(D).
We also find that the grievant had earlier filed a formal EEO
complaint regarding the same matter as that contained in the grievance.
The Agency has submitted two letters addressed to the Chief Patrol Agent
in El Paso and signed by the Agency's Acting Director of EEO. The letter
dated August 8, 1989 states that the grievant filed Complaint of
Discrimination No. I-89-5654 against the Agency on February 22, 1989 and
states that the complaint alleges "that you discriminated against him on
the bases (sic) of reprisal when you denied his medical transfer, at the
Government('s) expense, to accommodate him for his handicapping
condition of asthma." Id., Exhibit 2. Included in Exhibit 2 to the
Agency's exceptions is the Complaint of Discrimination dated February
22, 1989, and signed by the grievant. In the narrative describing his
allegations of discrimination, the grievant wrote the following:
On or about 4/26/88, I was diagnosed as having severe allergies
which resulted in afflicting me with asthma. On or about 4/29/
88, I sought a reasonable accommodation by way of a management
need transfer, at Government expense, to the northeastern U.S. I
also filed a claim with OWCP covering my allergic asthmatic
condition. Management denied my request for a medical transfer at
Government request (sic). On or about 1/6/89, I found out that
management of the El Paso Border Patrol Sector had, through
mismanagement and gross negligence, delayed processing of my OWCP
claim. This delay has cost me financially as I have had to pay my
medical expenses out of pocket. Management has failed to afford me
a reasonable accommodation with respect to my handicapping
condition of asthma.
Id.
Based on our comparison of the grievance resolved by the Arbitrator
with the allegations of discrimination contained in the formal EEO
complaint filed by the grievant on February 22, 1989, we conclude that
the "matter" raised in both proceedings is the same -- the Agency's
failure to accommodate the grievant's handicapping condition and
transfer the grievant to the northeastern United States. There is no
question that the formal EEO complaint dated February 22, 1989 was filed
prior to the grievance, which was filed on July 24, 1989. Accordingly,
the conditions of section 7121(d) have been met and the Arbitrator was,
therefore, precluded under section 7121(d) of the Statute from resolving
the grievance submitted to him. We must, therefore, set aside the
award. See Office of Hearings and Appeals, Region II, 36 FLRA at 216.
In view of our conclusion, it is unnecessary to address the Agency's
remaining exceptions, including whether the letter dated August 3, 1989,
stating that the grievant filed another complaint of discrimination
against the Agency on July 5, 1989, also bars the grievance. It is also
unnecessary to address the Union's exceptions.
IV. Decision
The Arbitrator's award is set aside.
FOOTNOTES
(1) The Union filed a Motion to Strike the Agency's Exceptions for
failure to comply with the Authority's Rules and Regulations. The Union
contended that the copy of the exceptions provided to the Union was
incomplete and did not contain a statement of service. Subsequently,
the Agency provided the Union with missing pages. The Union requests
the Authority to withdraw the Motion to Strike the Agency's Exceptions.
The Union's request is hereby granted.
(2) Section 7121(d) of the Statute provides in pertinent part:
(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also falls
under the coverage of the negotiated grievance procedure may raise
the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter
under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the
applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first . . . .
40 FLRA 40
40 FLRA NO. 6
Dept. of Health and Human Services, Health Care Financing
Administration and AFGE, Local 1923, Case No. 3-CA-80303 (39 FLRA 120)
(Decided April 9, 1991)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
MOTION FOR RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
DIGEST NOTES
The Authority denied a motion for reconsideration of its decision
that the Respondent violated 7116(a)(1), (5), (6) and (7) by
unilaterally implementing a total ban on smoking in the Respondent's
buildings at a time when the parties' dispute over the matter was
pending before the FSIP. The Authority rejected the Respondent's
assertion that the Authority applied an improper standard in evaluating
the defense that it was privileged under the Memorandum of Understanding
to implement the ban on smoking. The Authority also noted that it had
recently rejected an approach that would dismiss complaints alleging
violation of a statutory right based on a finding that the parties have
proffered differing and arguable interpretations of a collective
bargaining agreement.
Case No. 3-CA-80303 (39 FLRA 120 (1991))
DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH CARE FINANCING
ADMINISTRATION
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1923, AFL-CIO
(Charging Party/Union)
ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR STAY
April 9, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Respondent's motion for
reconsideration of our decision in Department of Health and Human
Services, Health Care Financing Administration, 39 FLRA 120 (1991). The
Respondent also requested a stay of the Authority's decision. Neither
the General Counsel nor the Charging Party filed an opposition to the
Respondent's motion.
For the following reasons, we conclude that the Respondent has failed
to establish that extraordinary circumstances exist warranting
reconsideration of our decision. Accordingly, we will deny the
Respondent's motion and request for stay.
II. The Decision in 39 FLRA 120
In 39 FLRA 120, the Authority concluded, in agreement with the
Administrative Law Judge, that the Respondent violated section 7116(a)(
1), (5), (6), and (7) of the Federal Service Labor-Management Relations
Statute (the Statute) by unilaterally implementing a total ban on
smoking in the Respondent's buildings at a time when the parties'
dispute over the matter was pending before the Federal Service Impasses
Panel. As relevant here, the Authority rejected the Respondent's
assertion that it was not required to bargain over its decision to
implement the ban on smoking because the parties previously had agreed,
in a Memorandum of Understanding (MOU), that the Respondent could
implement the ban. The Authority concluded that the MOU did not
constitute a clear and unmistakable waiver of the Union's right to
bargain over the Respondent's implementation of the ban. The Authority
directed the Respondent to cease and desist from engaging in its
unlawful actions and, among other things, to reinstitute designated
smoking areas in its buildings.
III. The Respondent's Motion for Reconsideration
The Respondent asserts that reconsideration of the decision in 39
FLRA 120 is warranted because the Authority's rejection of the
Respondent's assertion that it was privileged under the MOU to implement
the ban on smoking constitutes "an implicit overruling of the
Authority's important deferral doctrine . . . ." Motion at 1. According
to the Respondent, the Authority improperly failed to determine whether
the Respondent's interpretation of the MOU was "arguable" or "plausible"
and, instead, applied the "more difficult standard" of "'clear' and
'unambiguous.'" Brief in Support of Motion at 3 (citations omitted).
The Respondent argues that as its interpretation of the MOU is
"arguable," the Authority should reverse its decision in 39 FLRA 120 and
determine that the Respondent was not required to bargain over the
implementation of the ban on smoking. The Respondent also argues, in
this regard, that the Authority should provide the parties an
opportunity to present additional arguments concerning other aspects of
the Authority's decision and should stay the effect of the remedial
order pending resolution of the motion for reconsideration.
IV. Analysis and Conclusions
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 120.
We reject the Respondent's assertion that the Authority applied an
improper standard in evaluating the Respondent's defense that it was
privileged under the MOU to implement the ban on smoking. As we stated
in our decision, it is "well settled that a union's waiver of a
statutory right must be clear and unmistakable." 39 FLRA at 129. See
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9
(1981). See also, for example, Marine Corps Logistics Base, Barstow,
California, 39 FLRA No. 97 (1991); Department of the Navy, Marine Corps
Logistics Base, Albany, Georgia, 39 FLRA No. 91 (1991). The
Respondent's arguments constitute nothing more than disagreement with
our decision and an attempt to relitigate the merits of the case. As
such, the Respondent has not demonstrated extraordinary circumstances
within the meaning of section 2429.17 of our Rules and Regulations.
See, for example, U.S. Department of the Army, Lexington Blue Grass Army
Depot, Lexington, Kentucky, 39 FLRA No. 129, slip op. at 4 (1991).
Moreover, the Authority recently rejected "an approach that would
dismiss complaints alleging the violation of a statutory right based on
a finding that the parties have proffered differing and arguable
interpretations of (a) collective bargaining agreement." Internal
Revenue Service, Washington, D.C., 39 FLRA No. 137, slip op. at 6
(1991). The Authority held, in this regard, that "the use of a
'differing and arguable' analysis in cases involving statutory rights
abrogates important rights . . . and . . . is inconsistent with the
purposes and policies of the Statute." Id. Consequently, the
Respondent's assertion that the Authority should reverse its decision in
39 FLRA 120 on the basis that its interpretation of the MOU is arguable
provides no basis for reconsidering our decision.
In sum, the Respondent has not established extraordinary
circumstances warranting reconsideration of our decision in 39 FLRA 120.
The Respondent's motion for reconsideration will, therefore, be denied.
For the same reasons, the Respondent's request for a stay of the
decision will be denied.
V. Order
The Respondent's motion for reconsideration and stay of the
Authority's Decision and Order in 39 FLRA 120 is denied.
40 FLRA 33
40 FLRA NO. 5
NAGE and Dept. of Defense, National Guard Bureau, Connecticut Army
and Air National Guard, Hartford, Connecticut, Case No. 0-NG-1879
(Decided April 3, 1991)
STATUTE
7105(a)(2)(E)
7117(a)(1)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
PERFORMANCE AWARDS
GOVERNMENT-WIDE REGULATIONS
5 C.F.R. 430.503(c)(1)
PROCEDURAL ISSUE
REQUIRED SUPPORT FOR ALLEGATION OF NONNEGOTIABILITY
DIGEST NOTES
As a preliminary matter, the Authority rejected the Union's argument
that the Authority limit its consideration of the issues presented in
the case because of the lack of specificity in the Agency's allegation
of nonnegotiability. The Authority noted that there is no requirement
in the Statute or the Authority's rules that a declaration of
nonnegotiability must be made with any particular degree of specificity.
Moreover, the Authority noted that the Union timely filed a response to
the Agency's statement of position and therefore, availed itself of the
opportunity to fully address the Agency's additional contentions.
On the merits, the Authority concluded that the proposal which
requires that employees who receive certain performance ratings will
receive a cash award within a prescribed range, is designed to mandate
the granting of awards. Neither the proposal nor the Union's
explanation of intent allows for the complete disapproval of an
individual award. Rather, the Agency would have the ability only to
"adjust" the amount of the award so long as it still fell within the
prescribed range. Accordingly, the proposal is outside the duty to
bargain under 7117(a)(1) because it conflicts with 5 C.F.R. 430.503(c)(
1).
Case No. 0-NG-1879
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(Union)
and
U.S. DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU CONNECTICUT ARMY AND
AIR NATIONAL GUARD HARTFORD, CONNECTICUT
(Agency)
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
April 3, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 one proposal concerning performance awards. /1/ The
Agency filed a statement of position. The Union filed a response to the
Agency's statement of position.
For the reasons which follow, we conclude that the proposal is
inconsistent with a Government-wide regulation. Accordingly, the
proposal is nonnegotiable and the petition for review will be dismissed.
II. The Proposal
b. Performance Awards
1. Performance awards will be cash and based on the employee's
rating of record.
2. Employees rated superior or excellent will be recognized;
fully successful will be recognized with a 1% performance award
provided the employee exceeded at least one critical element of
the performance plan.
3. The following range of cash performance awards will be
issued to unit employees;
a. A fully successful rating that exceeds at least one
critical element of the performance plan will receive 1%.
b. An excellent rating will receive from 1 1/2% - 2 1/2%.
c. A superior rating will receive from 3% - 5%.
III. Positions of the Parties
A. The Agency
The Agency contends that the proposal directly interferes with its
rights to determine its budget under section 7106(a)(1) and to determine
the numbers and types of employees to be assigned under section
7106(b)(1) of the Statute. In addition, the Agency maintains that the
proposal is inconsistent with Government-wide regulations, specifically
5 C.F.R. Sections 430.503(f) and 430.506(a).
With respect to the right to determine its budget, the Agency asserts
that, based upon the performance ratings given to bargaining unit
employees in 1989, the projected cost of implementing the proposal would
be $416,000 or 3.1 percent of the Agency's annual payroll. The Agency
argues that "(t)his is a significant and unavoidable employment cost at
a time of budget cuts and decreases in governmental services." Statement
of Position at 2.
The Agency further argues that the budgetary consequences of the
proposal would also result in a direct interference with its right to
determine the "number and type of personnel assigned." Id. at 1. In
this regard, the Agency reasons that it "is highly likely that assigned
performance ratings would cause a significant reallocation of funds to
pay (for) the performance awards under the (U)nion's proposal. Such a
reallocation could affect funds for fuel, equipment, and/or cause
management to limit it's (sic) number and type of hires." Id.
The Agency also contends that the proposal is inconsistent with 5 C.
F.R. Sections 430.503(f) and 430.506(a). However, the Agency does not
make specific arguments in support of this contention other than to note
that Government-wide regulations require that performance awards be paid
from appropriated funds.
B. The Union
As a preliminary matter the Union requests that the Authority not
consider the Agency's assertions regarding its right to determine its
budget and the proposal's alleged inconsistency with 5 C.F.R. Sections
430.503(f) and 430.506(a) because these issues were not previously
raised by the Agency in its allegation of nonnegotiability. The Agency
declared the proposal nonnegotiable because it "is inconsistent with
Government-wide regulation. FPM 451, TPR 451, Chapter 5 and
management's budget rights under 5 USC 7106(b)(1)." Petition for Review,
Attachment at 1; Response at 1. The Union maintains that the
references to section 7106(a)(1) of the Statute and 5 C.F.R. 430 "are an
attempt to broaden the (Agency's) position" of nonnegotiability and
"constitute an attempt to ignore the conditions governing a review and
to give the Agency a 'second bite at the apple.'" Response at 1.
The Union contends that the proposal would not interfere with any of
the Agency's rights under section 7106 of the Statute. The Union argues
that the Agency has not demonstrated that implementation of the proposal
would result in a significant and unavoidable increase in cost. The
Union argues further that as the Agency "has the right to establish
performance standards and, therefore, control over any criteria that
would result in a cash award . . . (the Agency) has ultimate control
over its budget and the amount of appropriate (sic) funds allocated to
its performance awards system." Id. at 3.
The Union maintains that its proposal is not inconsistent with
Government-wide regulation. It argues that nothing in the proposal
"exceeds the parameters of the Government-wide regulation, Federal
Personnel Manual Chapter 451." Id. at 2. With respect to the Agency's
contentions regarding the proposal's inconsistency with 5 C.F.R.
Sections 430.503(f) and 430.506(a) the Union argues that "(n)othing in
the . . . proposal would prevent the Agency from reviewing performance
awards to assure that they fall within the awards budget." Id. at 4.
The Union further explains that "the . . . proposals establish a range
of percentage of an employee's salary within which the awards must fall.
The Agency has the ability to adjust the awards within this range to
ensure that the total cost of the awards remain(s) within existing
appropriate (sic) funds for that purpose." Id.
IV. Analysis and Conclusions
As a preliminary matter, contrary to the argument of the Union, there
is no requirement in the Statute or the Authority's implementing Rules
and Regulations that a declaration of nonnegotiability must be made with
any particular degree of specificity. Thus, section 7117(c)( 1) states:
Except in any case to which subsection (b) of this section
applies, if an agency involved in collective bargaining with an
exclusive representative alleges that the duty to bargain in good
faith does not extend to any matter, the exclusive representative
may appeal the allegation to the Authority in accordance with the
provisions of this subsection. (Emphasis added.)
Section 2424.4 of the Authority's Rules and Regulations provides that an
exclusive representative's petition for review of an agency's allegation
that the duty to bargain does not extend to the matter at issue must
contain, inter alia, "the agency's allegation in writing that the
matter, as proposed, is not within the duty to bargain in good faith . .
. (.)" The only requirement that an agency support its allegation of
nonnegotiability with specificity and rationale occurs after the agency
has been served with a petition for review, at which time the agency has
30 days within which to file a statement of position, specifying its
reasons for the allegation. /2/ Department of the Interior, National
Park Service, Colonial National Historical Park, Yorktown, Virginia, 20
FLRA 537 (1985). Moreover, we note that the Union timely filed a
response to the Agency's statement of position and therefore, availed
itself of the opportunity to fully address the Agency's additional
contentions. Accordingly, we will not, as requested by the Union, limit
our consideration of the issues presented in this case.
The Authority recently has issued a number of decisions interpreting
and applying applicable regulatory requirements to proposals involving
performance awards. As an initial matter, the Authority has determined
that the regulations governing performance awards, promulgated by the
Office of Personnel Management (OPM) at 5 C.F.R. part 430, are
Government-wide regulations within the meaning of section 7117(a)(1) of
the Statute. See Tidewater Virginia Federal Employees Metal Trades
Council and U.S. Department of the Navy, Norfolk Naval Shipyard,
Portsmouth, Virginia, 37 FLRA 938, 950 (1990) (Norfolk Naval Shipyard).
The Authority also has determined that performance award proposals that
mandate the granting of awards are inconsistent with 5 C.F.R. Section
430.503(c)(1) because they prevent the agency from reviewing and
approving such awards. /3/ As we stated in Norfolk Naval Shipyard, "the
expressed authority to review and approve inherently encompasses the
authority to review and disapprove." Id. at 950. Consequently,
proposals which do not permit disapproval of awards are inconsistent
with the regulation and are outside the duty to bargain under section
7117(a)(1) of the Statute. See, for example, International Federation
of Professional and Technical Engineers, Local No. 1 and U.S.
Department of the Navy, Norfolk Naval Shipyard, 38 FLRA 1589 (1991)
(Proposal 2); Association of Civilian Technicians and U.S. Department
of Defense, National Guard Bureau, Rhode Island National Guard,
Providence, Rhode Island, 38 FLRA 1005 (1990), petition for review filed
sub nom. U.S. Department of Defense, National Guard Bureau, Rhode Island
National Guard, Providence, Rhode Island v. FLRA, No. 91-1090 (D.C. Cir.
Feb. 19, 1991) (Proposal 1); American Federation of Government
Employees, Local 1770 and U.S. Department of the Army, Headquarters
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 38 FLRA
626 (1990); Norfolk Naval Shipyard.
Turning to the proposal in this case, it is clear, from both the
plain language of the provision and the Union's expressed intent, that
the provision is designed to mandate the granting of awards. Thus, the
proposal requires that employees who receive certain performance ratings
will receive a cash award within the prescribed ranges. Further, in
explaining the proposal, the Union asserts that the Agency can review
performance awards to "assure that they fall within the awards budget"
and can "adjust the awards within (the required) range to ensure that
the total cost of the awards remain within existing appropriate(d)
funds." Response at 4. Neither the proposal nor the Union's explanation
of intent allows for the complete disapproval of an individual award.
Rather, the Agency would have the ability only to "adjust" the amount of
the award so long as it still fell within the prescribed range.
As indicated above, proposals that mandate the granting of awards are
outside the duty to bargain because they do not allow for the
disapproval of such awards. To the extent that the provision here
requires that awards be given, we find, consistent with the decisions
noted above, that the provision is contrary to 5 C.F.R. Section
430.503(c)(1). Compare 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 (1990)
and 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 (1990),
petition for review filed sub nom. United States Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No.
91-1045 (D.C. Cir. Jan. 24, 1991) (Naval Underwater Systems Center)
(Proposals 11 and 12), in which the Authority found negotiable proposals
that did not mandate the approval or granting of awards.
Accordingly, we find that the proposal is outside the duty to bargain
under section 7117(a)(1) of the Statute because it conflicts with 5
C.F.R. Section 430.503(c)(1). In view of our conclusion, it is
unnecessary to address the Agency's additional contentions.
V. Order
The Union's petition for review is dismissed.
FOOTNOTES
(1) The Agency, in its statement of position, notified the Authority
that it withdrew its allegation of nonnegotiability as to a second
proposal concerning voting leave. Consequently that proposal is not
before us.
(2) See section 2424.6 of the Authority's Rules and Regulations.
(3) 5 C.F.R. Section 430.503(c)(1) provides:
Agency procedures for making performance awards determinations
must include a requirement for review and approval of each
determination by an official of the agency who is at a higher
level than the official who made the initial decision, unless
there is no official at a higher level in the agency, and also by
the official(s) with responsibility for managing the performance
awards budget within the agency.
40 FLRA 30
40 FLRA NO. 4
Dept. of the Navy, Navy Resale Activity, Guam and AFGE, Local 1689
(Gilson, Arbitrator), Case No. 0-AR-2025 (Decided April 3, 1991)
STATUTE
7122(a)
7121(f)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
AUTHORITY JURISDICTION
5 U.S.C. 7512
DIGEST NOTES
The Arbitrator dismissed a grievance of an employee who was removed
from his postion for receiving stolen goods. The Arbitrator also
rescinded the Agency action of barring the employee from the Naval
Station and ordered the Agency to pay the employee $500 in lieu of
damages for lost wages from a job at a civilian restaurant located on
the Naval Station.
The Authority declined to consider the Agency's exceptions to that
portion of the award that orders that the grievant's debarment from the
Station be recinded and that $500 be paid in lieu of damages for loss of
the job at the restaurant. In the Authority's view, the award relates
to the removal of the grievant, a matter covered by 5 U.S.C. 7512 and a
matter described in 7121(f). Consequently, the Authority is without
jurisdiction to consider the Agency's exceptions.
Case No. 0-AR-2025
U.S. DEPARTMENT OF THE NAVY NAVY RESALE ACTIVITY, GUAM
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1689
(Union)
ORDER DISMISSIN EXCEPTIONS
April 3, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Thomas Q. Gilson filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. /*/ The Union did
not file an opposition to the Agency's exceptions.
In his award, the Arbitrator dismissed the grievance of an employee
who was removed from his position for receiving stolen goods. The
Arbitrator also rescinded the Agency's action barring the employee from
the U.S. Naval Station and ordered the Agency to pay the employee $500
in lieu of damages for lost wages from a job at a civilian restaurant
located on the Naval Station. The Agency has filed exceptions to that
portion of the award. For the reasons stated below, we conclude that we
are without jurisdiction under section 7122(a) of the Statute to review
the Agency's exceptions.
II. Background and Arbitrator's Award
The grievant was a nonappropriated fund employee of the Navy
Exchange, U.S. Naval Station, Guam. The Agency removed him from his
position for the offense of receiving property stolen from the Exchange.
The Agency also issued a letter to the grievant advising him that he
was permanently prohibited from entering the property of the U. S.
Naval Station, Guam. As a result of being barred from the Station, the
grievant was unable to report to his job at a fast-food restaurant
located on the Station. The grievant filed a grievance protesting his
removal. The grievance was submitted to arbitration on the following
stipulated issue:
Was the termination of (the grievant) for receiving goods and
(sic) stolen from the Naval Exchange justified under the
Collective Bargaining Agreement and the applicable rules and
regulations? If not, what shall the remedy be?
Award at 6. The Arbitrator concluded that the Agency was justified in
removing the grievant and dismissed the grievance over the removal.
However, the Arbitrator also found that the Agency violated its own
rules and regulations when it barred the grievant permanently from the
Naval Station. He ordered that the grievant's "debarment from the base
shall be rescinded and he shall be reimbursed in the amount of $500 in
lieu of damages for the loss of his job at (the) restaurant." Id. at 17.
III. Agency's Exceptions
The Agency filed exceptions to that portion of the Arbitrator's award
that orders that the grievant's debarment from the Station be rescinded
and that $500 be paid in lieu of damages for loss of the job at the
restaurant. The Agency maintains that that portion of the Arbitrator's
award exceeds the Arbitrator's authority and is contrary to law.
IV. Analysis and Conclusion
We find that the Authority is without jurisdiction under section
7122(a) of the Statute to review the Agency's exceptions.
Section 7122(a) provides, in pertinent part, as follows:
Either party to arbitration under this chapter may file with the
Authority an exception to any arbitrator's award pursuant to the
arbitration (other than an award relating to a matter described in
section 7121(f) of this title).
The matters described in section 7121(f) of the Statute include
serious adverse actions covered under 5 U.S.C. Section 7512, such as
removals. See, for example, National Treasury Employees Union, Chapter
202 and Department of the Treasury, Financial Management Service,
Headquarters Office, 32 FLRA 1075 (1988) (Authority had no jurisdiction
to consider agency exceptions to award that reinstated grievant who had
been removed for alcohol-related causes); Defense Logistics Agency and
American Federation of Government Employees, Local No. 2501, 31 FLRA 754
(1988) (Authority had no jurisdiction to consider agency exceptions to
award of interest where arbitrator reduced a removal to a 5-day
suspension). Review of arbitration awards relating to such matters,
like review of decisions of the Merit Systems Protection Board, may be
obtained by filing an appeal with the U.S. Court of Appeals for the
Federal Circuit in accordance with 5 U.S.C. Section 7703.
The Arbitrator's award in this case relates to the removal of the
grievant. That is a matter covered by 5 U.S.C. Section 7512 and is a
matter described in section 7121(f) of the Statute. Consequently, we
are without jurisdiction to consider the Agency's exceptions and the
exceptions will be dismissed.
V. Order
The Agency's exceptions are dismissed.
FOOTNOTES
(*) On March 12, 1991, the Union's exceptions were dismissed as
untimely filed. U.S. Department of the Navy, Navy Resale Activity, Guam
and American Federation of Government Employees, Local 1689, 39 FLRA No.
94 (1991).
40 FLRA 20
40 FLRA NO. 3
Dept. of Health and Human Services, Social Security Administration,
Southeastern Program Service Center, Birmingham, Alabama and AFGE, Case
No. 4-CA-90775 (Decided April 3, 1991)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
FURNISHING OF INFORMATION
NAMES AND HOME ADDRESSES
DIGEST NOTES
The Authority found that the Respondent violated the Statute by
refusing to furnish, upon request of the Charging Party, the names and
home addresses of bargaining unit employees.
Case No. 4-CA-90775
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY
ADMINISTRATION SOUTHEASTERN PROGRAM SERVICE CENTER BIRMINGHAM, ALABAMA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Charging Party)
DECISION AND ORDER
April 3, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding
that the Respondent had engaged in the unfair labor practices alleged in
the complaint by refusing to furnish, upon request of the Charging
Party, the names and home addresses of bargaining unit employees. 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. No
opposition to the exceptions was filed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge and
find that no prejudicial error was committed. The rulings are affirmed.
Upon consideration of the Judge's decision, the exceptions and the
entire record, we adopt the Judge's findings, conclusions and
recommended Order for the reasons fully set forth 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).
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of Health and Human Services, Social
Security Administration, Southeastern Program Service Center,
Birmingham, Alabama shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2206, the agent of 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 the American Federation of Government Employees, Local
2206, the agent of 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 Center 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, 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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 2206, the agent of 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 the rights assured them by the
Federal Service Labor -- Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 2206, the agent of 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, Georgia 30367, and whose telephone number is: (404)
347-2324.
Case No. 4-CA-90775
SOCIAL SECURITY ADMINISTRATION, SOUTHEASTERN PROGRAM SERVICE CENTER,
BIRMINGHAM, ALABAMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Charging Party
Richard M. Friedman, For Respondent
Richard S. Jones, Esq., For General Counsel of the FLRA
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
DECISION
Statement of the Case
The unfair labor practice complaint in this case alleges that Social
Security Administration, Southeastern Program Service Center,
Birmingham, Alabama (SSA Birmingham) violated section 7116(a)(1), (5),
and (8) of the Federal Service Labor-Management Statute, 5 U.S.C.
Section 7101 et seq. (Statute) by refusing to furnish American
Federation of Government Employees (AFGE), the exclusive representative
of certain of SSA Birmingham's employees, the names and addresses of
bargaining unit employees. SSA Birmingham filed an answer denying it
had violated the Statute.
On or about December 21, 1990 General Counsel of the FLRA filed a
Motion for Summary Judgement which was transferred by the Regional
Director of Federal labor Relations Authority (FLRA) Region IV to the
Chief Administrative Law Judge, pursuant to section 2423.22(b)(1) of the
FLRA's Rules and Regulations, 5 C.F.R. Section 2423.1 et seq.
SSA Birmingham filed an Opposition to Motion for Summary Judgment on
December 28, 1990. SSA Birmingham did not take issue with the material
facts, except to raise an issue of alternative means of communications,
but requested that the motion be denied as a matter of law based upon
FLRA v. Department 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) and United States Department of Justice v. Reporters
Committee for Freedom of the Press, 109 S. Ct. 1468 (1989) (Reporters
Committee).
On December 28, 1990 the Chief Administrative Law Judge issued an
Order granting all parties hereto until January 25, 1991 to file
additional responses.
On December 28, 1990 SSA Birmingham filed a Motion to Stay
Proceedings "until the disputed issue of law in this case has been
conclusively resolved by the courts of appeal or by the Supreme Court".
This case was assigned to the undersigned for disposition pursuant to
section 2423.19(k) and section 2423.22(b)(3) of the FLRA's Rules and
Regulations.
Based upon the entire record herein, and it appearing that there are
no genuine issues of material fact and that the General Counsel of the
FLRA is entitled to summary judgment as a matter of law. I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
AFGE is the exclusive collective bargaining representative of an
appropriate nationwide unit of employees of the Social Security
Administration (SSA). AFGE Local 2206 is an agent of AFGE representing
unit employees in SSA Birmingham.
On July 27, 1989, and August 3, 1989, AFGE Local 2206, by its
President Odessa M. Washington requested the names and home addresses of
employees in the bargaining unit employed at SSA Birmingham. It is
undisputed that the requested names and addresses are reasonably
available, are necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of bargaining, and do not
constitute guidance, advice, counsel, or training provided for
management officials or supervisors, relating to collective bargaining.
The names and addresses are normally maintained by a component of the
Department of Health and Human Services (HHS) other than SSA Birmingham.
On July 31, 1989, and August 7, 1989 SSA Birmingham, by George F.
Sedberry, its Labor Relations Specialist, denied the request for the
names and addresses and since July 31, 1989, SSA Birmingham has refused
to supply AFGE Local 2206 with the requested information.
Discussin and Conclusions of Law
The decision in this case is controlled by 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). For the
reasons fully set forth in Portsmouth Naval Shipyard, supra, the release
of the names and home addresses of bargaining unit employees is
"necessary" within the meaning of the Statute and is not "prohibited by
law". In Portsmouth Naval Shipyard, supra, the FLRA rejected the
reasoning of the D.C. Circuit in Dep't of the Treasury, supra, because
the D.C. Circuit did not harmonize the Statute, the Freedom of
Information Act, and the Privacy Act.
SSA Birmingham, in addition to contending that the FLRA erred in
Portsmouth Naval Shipyard, supra, argues that the union may not compel
release of the home addresses unless there are no adequate alternative
means of communication, and since there is no contention that there is
such an alternative means of communication there is an issue of material
fact. This argument is rejected. The FLRA, in Portsmouth Naval
Shipyard, supra, discusses the relationship of a union and the employees
it represents and the special effectiveness of communication between the
union and such employees when the union can communicate with the
employees at their home, "away from the workplace and potential
surveillance by management." Id. at 527-528. In light of the uniqueness
of the communication permitted by having the home addresses of the
employees in the unit, as recognized by the FLRA, there are no "adequate
alternative means of communication". However if an agency were to
contend there was such an unusual situation and that there did exist an
adequate alternate means of communication, the burden would necessarily
be upon the agency to establish such a situation existed rather than
upon the General Counsel of the FLRA to establish that such a situation
did not exist, a negative fact.
In the subject case SSA Birmingham does not allege that there is such
an adequate alternate means of communication, but rather argues an issue
of fact exists because the General Counsel of the FLRA did not allege
and prove that there was no adequate alternate means of communication.
This approach is rejected based on the FLRA's reasoning as discussed
above.
In its answer SSA Birmingham, in denying the information requested is
normally maintained by SSA Birmingham in the regular course of business,
states that the information "is normally maintained by another component
of HHS." SSA Birmingham, in its answer, admits that the information is
reasonably available. In light of the foregoing, I conclude that, for
the purposes of section 7114(b)(4) of the Statute, the names and
addresses were maintained by the agency in the normal course of
business. Cf. Department of Defense Dependents Schools, Washington,
D.C., and Department of Defense Dependents Schools, Germany Region, 19
FLRA 790 (1985).
Based upon the reasoning in Portsmouth Naval Shipyard, supra, I
conclude that the request for the names and home addresses of unit
employees satisfies the requirements of section 7114(b)(4) of the
Statute. I conclude further that SSA Birmingham was required to provide
the data requested by AFGE Local 2206 and the refusal to provide this
data violated section 7116(a)(1), (5) and (8) of the Statute.
In light of all of the foregoing, I conclude no purpose would be
served by staying the proceedings herein and, accordingly, the Motion to
Stay Proceedings is hereby denied.
Based on the foregoing findings and conclusions, the Motion for
Summary Judgment is hereby granted and it is recommended that the
Authority issue the following order:
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 Social Security Administration, Southeastern
Program Service Center, Birmingham, Alabama shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2206, the exclusive representative of
certain of its employees, the names and home addresses of all such
employees.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of rights assured them by the
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 American Federation of Government Employees, Local
2206, the exclusive representative of certain of its employees, the
names and home addresses of all such employees.
(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 Center 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, February 14, 1991.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 2206, the exclusive
representative of certain of our employees, the names and home addresses
of all such employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce 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 2206, the exclusive representative of certain of our employees,
the names and home addresses of all such employees.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days form 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 12
40 FLRA NO. 2
AFGE, Local 1482 and Dept. of Navy, United States Marine Corps
Logistics Base, Barstow, California, Case No. 0-NG-1902 (Decided April
2, 1991)
STATUTE
7105(a)(2)(E)
7106(a)(1)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
INTERNAL SECURITY PRACTICES
RULES FOR THE OPERATION OF TWO AND THREE-WHEELED
VEHICLES
DIGEST NOTES
At issue were six proposals submitted by the Union in response to
changes proposed by the Agency in regulations prescribing rules for the
operation of two and three-wheeled vehicles on the Base. The rules
required, among other things, that operators wear specified personal
protective equipment. That equipment included (1) safety helmets which
meet DOT standards; (2) eye protection; (3) high visibility garments,
such as reflective vests; (4) footwear; and (5) clothing covering the
torso and legs. The Union's proposals would eliminate the requirements
specified in the regulation.
The Authority found that the Agency had established a link between
its goal of safeguarding personnel and property and its requirement that
operators of two and three-wheeled vehicles wear particular personal
protective equipment. Accordingly, the Authority found that the
Agency's right to determine its internal security practices includes the
right to determine the kinds of equipment and clothing that are
necessary for the operation of two and three-wheeled vehicles at agency
facilities and installations in order to safeguard the agency's
personnel and its property. The proposal directly interferes with
management's right to determine internal security practices under
7106(a)(1).
Case No. 0-NG-1902
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482
(Union)
and
U.S. DEPARTMENT OF THE NAVY UNITED STATES MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 2, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of six
proposals. /1/ The proposals were submitted by the Union in response to
changes proposed by the Agency in regulations prescribing rules for the
operation of two and three-wheeled vehicles on the Marine Corps
Logistics Base (Base).
Because we find that the proposals directly interfere with the
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute, we conclude that the proposals are
nonnegotiable.
II. Background
The proposed regulations, Base Order P5500.13, governing the
operation of two and three-wheeled vehicles on the Base require, among
other things, that operators of those vehicles wear specified personal
protective equipment. That equipment includes: (1) safety helmets
which meet Department of Transportation standards; (2) eye protection;
(3) high visibility garments, such as reflective vests; (4) footwear;
and (5) clothing covering the torso and legs. These requirements would
"primarily impact on motorcycle operators and riders," and would apply
to any individual, military or civilian, operating such vehicles on the
Base. Statement of Position (Statement) at 2.
III. Proposals 2-7
Proposals 2-7 concern changes to and/or deletions from Base Order
P5500.13, Security, Law Enforcement & Motor Vehicle Regulations. /2/
The proposals are as follows:
1. Agency
The Agency contends that Proposal 2 would exclude unit employees from
that portion of its regulations requiring the use of personal protective
equipment and would, instead, require them to comply with "less
stringent requirements" of the CVC. Statement at 2. The Agency asserts
that Proposals 3-7 would delete requirements to wear specific items of
personal protection equipment, including helmets, eye protection,
reflective vest, footwear and certain clothing. The Agency contends
that these proposals, taken together, would replace the requirements of
its regulations with the requirements governing the operation of two and
three-wheeled vehicles imposed by the State of California.
According to the Agency, the purpose of the regulations in dispute is
"to protect agency personnel and property from injury, damage, and
destruction arising from traffic accidents on the (Base)." Id. The
Agency asserts that an agency's right to determine internal security
practices includes the right to determine policies and actions which are
part of its plan to secure or safeguard its personnel and physical
property. In support of its position, the Agency cites International
Brotherhood of Teamsters, Truck Drivers, Warehousemen & Helpers of
Jacksonville, Local Union 512 and Department of the Navy, Consolidated
Civilian Personnel, Jacksonville, Florida, 32 FLR 1200 (1988)
(Department of the Navy) and National Association of Government
Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public
Works Center, Great Lakes, Illinois, 30 FLRA 415 (1987), among other
Authority decisions. The Agency contends that the requirement to wear
the safety equipment at issue is part of a plan adopted by the Agency to
guard against harm to its property and personnel. The Agency concludes
that because Proposals 2-7 remove management's requirements as to the
use of specified protective equipment, the proposals "directly and
excessively interfere with (management's) right to determine its
internal security practices" under section 7106(a)(1) of the Statute and
are, therefore, nonnegotiable. Statement at 2.
2. Union
The Union contends that the proposals should be found negotiable
because the Agency "(has) not shown any compelling need for the
regulations in (dispute) which far exceed() the CVC requirements of the
State of Califorinia." Response at 3 (emphasis in original).
According to the Union, Proposal 2 would require civilians operating
a motorcycle at the Base "to abide by the State of California Vehicle
Code only." Petition for Review at 3. The Union asserts that "there is
no reason for (the) additional safety gear (requirements proposed by the
Agency) since the State of California" has no such requirements. Id.
(emphasis in original). As to Proposal 3, the Union states that because
employees of the Agency are beyond the age requirement of the CVC for
wearing helmets, there should be no requirement for employees to wear
helmets. With respect to Proposals 4, 5, 6 and 7, which concern,
respectively, eye protection, highly visible clothing, footwear, and
clothing covering the upper torso and legs, the Union contends that the
CVC does not require this equipment and, therefore, there is "no reason"
for the requirments provided in the Agency's regulations. Id. at 4-5.
V. Analysis and Conclusions
For the reasons discussed below, we find that Proposals 2-7 directly
interfere with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute and conclude,
therefore, that the proposals are nonnegotiable.
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 National
Federation of Federal Employees, Local 2050 and Environmental Protection
Agency, 36 FLRA 618, 631 (1990); Department of the Navy, 32 FLRA at
1204; National Federation of Federal Employees, Local 15 and U.S. Army
Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock
Island, Illinois, 30 FLRA 472, 475 (1987) (Rock Island). Where an
agency shows a link or reasonable connection between its goal of
safeguarding personnel or property and its practice or decision designed
to implement that goal, a proposal which directly interferes with or
negates the agency's practice or decision conflicts with the agency's
right under section 7106(a)(1). 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,
983 (1990).
The Agency states that the requirement in its regulations that
operators of two and three-wheeled vehicles, including motorcycles, wear
personal protective equipment is a part of the plan that it has adopted
to protect Agency personnel and property from injury and to prevent
damage and destruction resulting from traffic accidents on the Base. We
find that the Agency has established a link between its goal of
safeguarding personnel and property and its requirement that operators
of two and three-wheeled vehicles, including motorcycles, wear
particular personal protective equipment.
Accordingly, we find that the Agency's right to determine its
internal security practices includes the right to determine the kinds of
equipment and clothing that are necessary for the operation of two and
three-wheeled vehicles at agency facilities and installations in order
to safeguard the agency's personnel and its property. See, for example,
Department of the Navy (Proposal 1) (proposal requiring agency to waive
its safety rules governing the operation of motorcycles for employees,
for example, rules concerning safety helmets, eye protection, long
trousers, long-sleeved garments, and footwear, found to be
nonnegotiable); Rock Island (proposal precluding agency from imposing
safety requirements for the operation of motorcycles by employees, for
example, high visibility garments and other protective equipment, found
to be nonnegotiable).
Proposals 2-7 would preclude the Agency from imposing any
requirements for personal protective equipment that are more stringent
than state highway safety regulations governing the operation of
motorcycles. Thus, Proposals 2-7 are to the same effect as the proposal
found nonnegotiable in Rock Island. In that case, a proposal was found
nonnegotiable because it precluded the agency from imposing safety
requirements, with respect to equipment and clothing, that were more
stringent than applicable requirements of the State of Illinois
governing the operation of motorcycles or mopeds. The proposal was
found to be nonnegotiable because it directly interfered with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute. Consistent with Rock Island, we find
that Proposals 2-7 directly interfere with management's right under
section 7106(a)(1) of the Statute to determine its internal security
practices. Consequently, we conclude that Proposals 2-7 are
nonnegotiable.
Because we find that the proposals are nonnegotiable under section
7106(a)(1) of the Statute, we do not address the Union's contentions as
to whether there is a compelling need for the Agency's regulations
concerning personal protective equipment. We also note that the Union
does not claim that the proposals constitute an appropriate arrangement
under section 7106(b)(3) of the Statute for employees adversely affected
by the exercise of a management right. Accordingly, we do not address
that issue. See American Federation of Government Employees, Local 2429
and U.S. Department of the Air Force, Headquarters Space Systems
Division, Los Angeles, California, 38 FLRA 1469, 1477 (1990).
VI. Order
The petition for review is dismissed.
Proposal 2. 3002.2 -- sixth line after "all" delete the rest of
the sentence and add "requirements of the CVC (California Vehicle
Code). (The proposal substitutes the requirements of the
California Vehicle Code for the requirements of the regulation.)
Proposal 3. 3002.2a -- delete. (The proposal would delete the
requirement for employees to wear helmets.) Proposal 4. 3002.2b
-- delete. (The proposal would delete the requirement for
employees to wear eye protection.) Proposal 5. 3002.2c -- delete.
(The proposal would delete the requirement for employees to wear
highly visible clothing, such as reflective vests.) Proposal 6.
3002.2d -- delete. (The proposal would delete the requirement for
employees to wear certain footwear.) Proposal 7. 3002.2e --
delete. (The proposal would delete the requirement that employees
wear clothing covering the upper torso and legs.) IV. Positions
of the Parties
FOOTNOTES
(1) Proposal 1 is no longer in dispute between the parties.
Therefore, that proposal will not be considered in this decision.
(2) The sections of Base Order P5500.13 mentioned in the proposals
are set forth in the Appendix.
APPENDIX
SECURITY, LAW ENFORCEMENT AND MOTOR VEHICLE REGULATIONS
3002. TWO AND THREE WHEELED VEHICLE OPERATION AND EQUIPMENT . . . .
2. The following personal protective equipment requirements must be
met by all military personnel assigned to the base while operating or
riding a motorized two or three-wheeled vehicle on or off of the
installation. Civilians operating a motorized two or three-wheeled
vehicle aboard the installation are required to comply with all other
requirements of this chapter. Requirements for personal protective
equipment are:
a. Helmet. Operators and passengers must wear an unornamented
protective helmet meeting or exceeding the requirements set forth in
Federal Motor Vehicle Standard 218 while operating the vehicle, a DOT
label or stamp upon the helmet signifies that it meets this requirement.
Additionally, the helmet must either be of highly reflective design or
be affixed with a one inch wide white or silver reflective tape which
will extend horizontally around the base and vertically from front to
rear.
b. Eye Protection. Operators and passengers are required to wear a
shatterproof protective shield or goggles at all times while operating
or riding aboard the vehicle. The operator eye protection requirement
may also be met by a windshield which is not tinted and so constructed
as to rise above the line of sight of the operator when the operator is
seated astride the motorcycle in a normal upright position. No tinted
or colored eye protection may be worn during the hours of darkness as
defined by the CVC, Section 280.
c. Reflective Vest. A highly visible and reflective upper torso
garment (lime green or international orange with reflective striping)
will be the outermost garment worn by operators and passengers while the
vehicle is in motion. The garment will be worn over the uniform by
military personnel while the vehicle is being operated but will be
removed immediately upon dismounting from the vehicle if the rider is in
military uniform.
d. Footwear. Boots or shoes must be worn. Footwear which exposes a
portion of the foot, (e.g., sandals and open-toed shoes) are prohibited
footwear for this type of vehicle operation.
e. Uniforms and Clothing. When in uniform military operators and
passengers will not wear civilian packs, shoes, boots, or other garments
over the uniform. Clothing will cover the upper torso and legs. Long
sleeved jackets, gloves, and boots are recommended although not
required.
40 FLRA 3
40 FLRA NO. 1
NTEU and Dept. of Commerce, Patent and Trademark Office, Arlington,
Virginia, Case No. 0-NG-1810 (Decided April 1, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
PERFORMANCE AWARDS
GOVERNMENT-WIDE REGULATIONS
5 C.F.R. 430.503(c)(1)
DIGEST NOTES
The provision at issue provided that, ". . . employees shall receive
annual performance awards based on the employees' rating in accordance
with the following formula: Outstanding: 3% of salary; Commendable:
25 of salary." "No employee receiving an award shall receive less than
$250.00, however." "If budgetary constraints do not permit management to
meet the above, the agency shall notify the Union at the earliest
possible date, and the Union may reopen this Article for negotiations."
Only the first sentence, including the formulas, was in dispute.
The Authority noted that proposals that mandate the granting of
awards are outside the duty to bargin because they do not allow for the
disapproval of such awards. To the extent that the provision in this
case requires that awards be given, the Authority found that the
provision is contrary to 5 C.F.R. 430.503(c)(1), which has been found to
be a government-wide regulation within the meaning of 7117(a)(1). The
Authority noted that they do not view the review process set forth in
the applicable regulation, which allows for the disapproval of awards,
to be as narrowly confined as the Union suggests -- that is, to permit
review of awards solely for budgetary reasons. "The disapproval of an
award can be based on reasons other than budgetary limitations, for
example, to ensure conformance with an agency's overall performance
awards program." The Authority concluded also that the last sentence of
the proposal, which was not in dispute, does not grant the Agency the
full range of review provided in 5 C.F.R. 430.503(c)(1), even if that
review permits disapproval only on budgetary grounds.
Case No. 0-NG-1810
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ARLINGTON,
VIRGINIA
(Agency)
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
April 1, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 Union is
appealing the Agency head's disapproval of a portion of a provision
concerning performance awards pursuant to section 7114(c) of the
Statute.
For the reasons which follow, we find that the provision is
inconsistent with a Government-wide regulation. Consequently, the
Agency head's disaproval was proper and the petition for review must be
dismissed.
II. The Provision
Article 42 - Performance Awards
Section 5
Consistent PTO-wide, employees shall receive annual performance
awards based on the employees' rating in accordance with the
following formula: Outstanding: 3% of salary Commendable: 2% of
salary No employee receiving an award shall receive less than
$250.00, however. If budgetary constraints do not permit
management to meet the above, the agency shall notify the Union at
the earliest possible date, and the Union may reopen this Article
for negotiations. (Only the underscored portion of the provision
is in dispute.) III. Positions of the Parties
A. The Agency
The Agency head disapproved the first sentence of the provision on
the basis that it "creates an inseparable link between ratings and
awards and causes consideration of a nonmerit factor (the award) when
assigning a performance rating, contrary to law and government-wide
regulations." Attachment 1 to the Petition for Review at 1. In support
of its position, the Agency relies on Department of the Air Force,
Langley Air Force Base v. FLRA, 878 F.2d 1430 (4th Cir. 1989) (per
curiam) (unpublished opinion) (Langley Air Force Base). /1/ Although
the Agency acknowledges that Langley Air Force Base is an unpublished
decision, the Agency claims that the decision should be given
precedential effect in this case.
The Agency further argues that the first sentence of the provision is
inconsistent with 5 C.F.R. Section 430.503(c)(1), which provides for
review of awards by agency officials. According to the Agency, Section
1 of Article 42, which is asserted by the Union as preserving
management's discretion to disapprove awards for budgetary reasons, does
not, in fact, preserve management's discretion. /2/ Instead, the Agency
argues that Section 1 is contradicted by the mandate contained in the
first sentence of Section 5 that employees receive awards and also by
the requirement in the last sentence of Section 5, which would subject
management's discretion to bilateral negotiations.
B. The Union
The Union argues that the Agency's reliance on Langley Air Force Base
is misplaced and that "mandatory awards programs continue to be held
fully negotiable under Authority precedent." Response at 2.
The Union also argues that the provision is consistent with the
requirement in 5 C.F.R. Section 430.503(c)(1) for review of awards by
agency officials. In support of this assertion, the Union relies on
portions of an Agency regulation which purportedly provide for the
review required by 5 C.F.R. Section 430.503(c). The Agency regulation
adverted to is the United States Department of Commerce Personnel
Bulletin 451-1, Revision #2, (Personnel Bulletin 451-1), pertaining to
"Performance-Based Recognition for General Workforce and Foreign Service
Employees and NOAA Corps Officers." The sections relied upon are 3.02
and 6.03. /3/
As explained by the Union, Section 3.02 requires review by the Agency
official who is responsible for administering the performance award
budget and "(b)y implication, it is clear that the purpose of the review
is to ensure that the budget will permit pay out of the recommended
award." Id. at 5. The Union also notes that Article 42, Section 1 is
consistent with the Agency's regulation to the extent that Section 1
provides that "'all awards are subject to budgetary limitations and are
paid at the discretion of the Office.'" Id.
With regard to Section 6.03 of the Agency's regulation, the Union
argues that the review process conducted by the Incentive Awards Program
Officer, as specified in that section, "continues intact" under the
provision. The Union further states that "(i)t is implicit in the
language (of the provision) that there is no contractual obligation to
make payment of an award which fails to meet the eligibility criteria."
Id.
In response to the Agency's assertion that the provision is contrary
to law because it would require the rating official to consider a
non-merit factor in determining an employee's performance rating, the
Union contends that the Agency has not demonstrated how the provision
would require rating officials to commit prohibited personnel practices.
Instead, the Union states "(a)ll rating officials are required by law
to consider only merit related factors in assigning performance
ratings(,)" and that "(t)he negotiated language is intended to operate
in accordance with the law." Id. at 5, 6 (emphasis in original).
Finally, the Union argues that the last sentence of the provision,
which would permit the Union to reopen negotiations in the event
budgetary constraints do not permit the Agency to comply with the award
amounts specified in the provision, does not interfere with the Agency's
right to determine its budget. The Union states that "(a)ny substantive
bargaining or impact and implementation bargaining in this area must
still operate within the zones of negotiability with respect to
management's rights to determine its budget." Id. at 6.
IV. Analysis and Conclusions
The Authority recently has issued a number of decisions interpreting
and applying applicable regulatory requirements to proposals involving
performance awards. As an initial matter, the Authority has determined
that the regulations governing performance awards, promulgated by the
Office of Personnel Management (OPM) at 5 C.F.R. part 430, are
Government-wide regulations within the meaning of section 7117(a)(1) of
the Statute. See Tidewater Virginia Federal Employees Metal Trades
Council and U.S. Department of the Navy, Norfolk Naval Shipyard,
Portsmouth, Virginia, 37 FLRA 938, 950 (1990) (Norfolk Naval Shipyard).
The Authority also has determined that performance award proposals that
mandate the granting of awards are inconsistent with 5 C.F.R. Section
430.503(c)(1) because they prevent the agency from reviewing and
approving such awards. /4/ As we stated in Norfolk Naval Shipyard, "the
expressed authority to review and approve inherently encompasses the
authority to review and disapprove." Id. at 950. Consequently,
proposals which do not permit disapproval of awards are inconsistent
with the regulation and are outside the duty to bargain under section
7117(a)(1) of the Statute. See, for example, International Federation
of Professional and Technical Engineers, Local No. 1 and U.S.
Department of the Navy, Norfolk Naval Shipyard, 38 FLRA 1589 (1991)
(Proposal 2); Association of Civilian Technicians and U.S. Department
of Defense, National Guard Bureau, Rhode Island National Guard,
Providence, Rhode Island, 38 FLRA 1005 (1990), petition for review filed
as to other matters sub nom. U.S. Department of Defense, National Guard
Bureau, Rhode Island National Guard, Providence, Rhode Island v. FLRA,
No. 91-1090 (D.C. Cir. Feb. 19, 1991) (Proposal 1); American Federation
of Government Employees, Local 1770 and U.S. Department of the Army,
Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North
Carolina, 38 FLRA 626 (1990); Norfolk Naval Shipyard.
Turning to the provision in this case, it is clear, from both the
plain language of the provision and the Union's expressed intent, that
the provision is designed to mandate the granting of awards. Thus, the
first sentence of the provision explicitly states that "employees shall
receive annual performance awards . . . ." Further, in explaining the
provision, the Union asserts that "(t)he (Authority) has repeatedly and
unequivocally held that mandatory incentive award programs are within
the duty to bargain(,) and that "mandatory awards programs continue to
be held fully negotiable under Authority precedent." Response at 2.
As indicated above, proposals that mandate the granting of awards are
outside the duty to bargain because they do not allow for the
disapproval of such awards. To the extent that the provision here
requires that awards be given, we find, consistent with the decisions
noted above, that the provision is contrary to 5 C.F.R. Section
430.503(c)(1). Compare 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 (1990)
and 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 (1990),
petition for review filed sub nom. United States Department of the Navy,
Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No.
91-1045 (D.C. Cir. Jan. 24, 1991) (Proposals 11 and 12), in which the
Authority found negotiable proposals that did not mandate the approval
or granting of awards.
The Union argues, however, that the provision does not prohibit
management from reviewing the award in accordance with 5 C.F.R. Section
430.503(c). In this regard, the Union states that Personnel Bulletin
451-1 contains a procedure to comply with the mandate of Section
430.503(c), "which is not in any way contravened by the negotiated
language." Response at 4. Essentially, the Union contends that the
provision is consistent with the Agency's regulation which, in turn,
conforms to the review process contained in 5 C.F.R. Section 430.503(
c)(1). Without passing on whether the Agency's regulation is consistent
with the regulatory requirements established by OPM, an issue that
clearly is not before us, we find that the Union's arguments do not
establish that the provision is consistent with Section 430.503( c)(1).
The thrust of the Union's arguments is that the granting of awards is
subject to review in connection with budgetary constraints. In this
connection, the Union cites Section 3.02 of Performance Bulletin 451-1,
which provides for approval of performance awards by various Agency
officials. The Union states that "(b)y implication, it is clear that
the purpose of the review is to ensure that the budget will permit pay
out of the recommended award." Response at 5. The Union also cites
Section 1 of Article 42 to provide additional support for its assertion
that awards are subject to budgetary limitations. The Union concludes
that "(t)he right of the Agency to review the award under Section 3.02(
b) of the Personnel Bulletin is therefore fully preserved under the
plain language of Article 42." Id.
Although the Union claims that the Agency's right to review awards is
"fully preserved" under Article 42, we find, based on the Union's other
arguments, that what is being fully preserved is the Agency's right to
review awards only for budgetary reasons. The Union has not indicated
that the review process may be conducted for any other reason. In this
connection, we find it significant that the Union has not cited to the
first sentence of Section 1 of Article 42 ("There is no entitlement to a
performance award or other type of incentive award.") as an indication
that the review process may result in the denial of an award for reasons
other than budgetary limitations. Instead, the Union relies on the
second sentence of that section to establish that awards are subject to
review for budgetary reasons.
We do not view the review process set forth in 5 C.F.R. Section
430.503(c)(1), which allows for the disapproval of awards, to be as
narrowly confined as the Union suggests -- that is, to permit review of
awards solely for budgetary reasons. In our view, the review process is
not limited to determinations over whether an agency's budget can
sustain the granting of an award. The dispproval of an award can be
based on reasons other than budgetary limitations, for example, to
ensure conformance with an agency's overall performance awards program.
While budgetary concerns clearly are a significant determinant in a
performance awards program, we can find nothing in the regulation
itself, and the Union has not directed our attention to any language in
OPM's regulatory requirements, that would limit the review process in
such a fashion.
Our finding that the provision is inconsistent with 5 C.F.R. Section
430.503(c)(1) does not rest solely on our view that the cited regulation
provides for a range of review that is not limited to budgetary reasons.
Rather, we also find that the provision could preclude review and
disapproval even on budgetary grounds.
As noted above, the last sentence of the provision, which is not in
dispute, would require the Agency to notify the Union and allow the
Union to reopen the Article if budgetary constraints prevented the
Agency from complying with the specified award amounts. It is unclear
what effect such language would have on the Agency's right to disapprove
awards. If the Union does not choose to exercise its ability to reopen
the Article, it appears that the Agency would be free to effectuate its
decision to disapprove awards for budgetary reasons. If the Union
chooses to renegotiate the Article, however, the Agency would, at the
least, be required to maintain the status quo pending the outcome of
negotiations. This might require the payment of awards that otherwise
would have been disapproved. Moreover, there is no assurance that as a
result of the negotiaions the Agency could unilaterally disapprove
awards based on its view of budgetary imperatives. For example, if the
parties negotiated a change in the awards schedule, the provision still
would not permit the Agency to disapprove the award in its entirety.
Accordingly, we conclude that the last sentence of the provision does
not grant the Agency the full range of review provided in 5 C.F.R.
Section 430.503(c)(1), even if that review permits disapproval only on
budgetary grounds.
The Union's reliance on Section 6.03 of Personnel Bulletin 451-1 for
the assertion "that there is no contractual obligation to make payment
of an award which fails to meet the eligibility criteria(,)" does not
compel a finding that the provision is consistent with 5 C.F.R. Section
430.503(c)(1). Response at 5. Section 6.03, which provides for review
of award nominations by the Incentive Awards Program Officer for
conformity to eligibility criteria, must be read in conjunction with the
other provisions of that section. As we read the portions of
Performance Bulletin 451-1 provided by the Union, and particularly
Sections 6.01 and 6.02, the review conducted by the Incentive Awards
Program Officer is essentially a ministerial act following the
submission of an award nomination that has been referred by the
recommending official. /5/ By the time of submission of an award
nomination, the terms of the provision at issue here would have mandated
the granting of an award. The review provided in Section 6.03, by its
terms, is designed to ensure that an award "meets all technical
requirements(.)" See n.3, supra. The review conducted at this stage
does not appear to allow for, and has not been argued to allow for, the
disapproval inherent in 5 C.F.R. Section 430.503(c)(1).
In sum, we find that the provision is outside the duty to bargain
under section 7117(a)(1) of the Statute because it conflicts with 5 C.
F.R. Section 430.503(c)(1). In view of our conclusion, it is
unnecessary to address the Agency's additional contention.
V. Order
The Union's petition for review is dismissed.
FOOTNOTES
(1) In Langley Air Force Base, the court reversed an Authority
decision finding negotiable three proposals requiring that cash awards
be given to employees based on their performance ratings.
(2) Section 1 of Article 42 provides:
There is no entitlement to a performance award or other type of
incentive award. All awards are subject to budgetary limitations
and are paid at the discretion of the Office.
(3) Section 3.02 provides:
a. Each operating unit must specify the delegations of
authority for approval of performance awards. The official
authorized to approve a performance award must be at the same or
higher organizational level than the approving official for the
performance appraisal.
b. Performance awards must be approved by the operating unit
official who is responsible for administering the performance
awards budget.
Section 6.03 provides:
The appropriate Incentive Awards Program Officer or designee
reviews the award nomination for conformity to eligibility
criteria and, if it meets all technical requirements, certifies it
and forwards it to the payroll office for payment.
(4) 5 C.F.R. Section 430.503(c)(1) provides:
Agency procedures for making performance awards determinations
must include a requirement for review and approval of each
determination by an official of the agency who is at a higher
level than the official who made the initial decision, unless
there is no official at a higher level in the agency, and also by
the official(s) with responsibility for managing the performance
awards budget within the agency.
(5) Sections 6.01 and 6.02 provide, in pertinent part:
.01 After review of the employee's performance, the supervisor may
initiate a recommendation for a performance award . . . by
completing the performance recognition section of CD-396,
Performance Management Record. The approved performance appraisal
document is the sole written justification for a performance award
. . . . .02 Recommending officials must send the CD-396 to the
servicing personnel office within 90 days after the annual
appraisal cycle.
39 FLRA 1597
39 FLRA NO. 139
Naval Aviation Depot, Norfolk, Virginia and Local Lodge 39, Intl.
Asso. of Machinists and Aerospace Workers, Case No. 34-CA-80771 (Decided
March 28, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
TERMINATION OF CONDITION OF EMPLOYMENT WITH NOTICE AND
OPPORTUNITY TO NEGOTIATE
ACTION TAKEN DID NOT CONSTITUTE ELIMINATION OF SHIFT
WAIVER BASED ON AGREEMENT PROVISION
DIGEST NOTES
The complaint alleged that the Respondent terminated a work shift for
certain unit employees without notifying the Union and giving it the
opportunity to negotiate over the impact and implementation of the
change in working conditions. The Authority found, in agreement with
the Judge, that the shift was not terminated, and that the impact and
implementation of the Respondent's decision to discontinue the shift in
one shop is covered by provisions of the agreement dealing with the
reassignment or shift rotation of employees. As the matter sought to be
negotiated is contained in the agreement and there is no assertion that
procedures in the agreement were not properly followed, the Respondent
had no further duty to bargain over impact and implementation of the
reassignments.
Case No. 34-CA-80771
NAVAL AVIATION DEPOT NORFOLK, VIRGINIA
(Respondent)
and
LOCAL LODGE 39 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS AFL-CIO
(Charging Party/Union)
DECISION AND ORDER
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent did not file a response to the
exceptions.
The complaint alleged that the Respondent terminated a work shift for
certain bargaining unit employees without notifying the Union and giving
it the opportunity to negotiate over the impact and implementation of
the change in working conditions, in violation of Section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the
Statute).
The Respondent denied violating the Statute, arguing that its
reassignment of all three employees who remained on an existing shift in
one shop was not a termination of the shift, as that shift remains in
existence throughout the rest of its facility and bargaining unit
employees continue to be employed in that shift. The parties'
collective bargaining agreement contains procedures for rotation of
employees on and off shifts. There is no dispute that the Respondent
followed these procedures.
The Judge found that the discontinuance of the shift in only one shop
did not constitute an elimination of the entire shift at the Activity,
and that the employees were reassigned in accordance with the terms of
the agreement. He further concluded that as the procedures for
reassigning employees to other shifts are contained in the agreement,
and those procedures were followed, the Respondent had no obligation to
bargain on the impact and implementation of the reassignments. In the
alternative, the Judge concluded that, at most, the Respondent's view
was based on an "arguable interpretation of the negotiated agreement,"
and that dismissal of the complaint was justified on that basis. ALJ
Decision at 9. Therefore, the Judge recommended that the complaint be
dismissed.
Pursuant to section 2423.29 of our 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
that the complaint be dismissed, for the following reasons.
We agree with the Judge, for the reasons he stated, that the shift
was not terminated, and that the impact and implementation of the
Respondent's decision to discontinue the shift in one shop is covered by
provisons of the negotiated agreement dealing with the reassignment or
shift rotation of employees. As the matter sought to be negotiated is
contained in the agreement and there is no assertion that the procedures
in the agreement were not properly followed, the Respondent had no
further duty to bargain on the impact and implementation of the
reassignments. Compare Naval Amphibious Base, Little Creek, Norfolk,
Virgina, 9 FLRA 774, 777-78 (1982) with U.S. Army Corps of Engineers,
Kansas City District, Kansas City, Missouri, 31 FLRA 1231, 1234-36
(1988).
For the reasons stated in Internal Revenue Service, Washington, D.
C., 39 FLRA No. 137 (1991), we reject the Judge's alternative basis for
dismissing the complaint. In brief, when a union asserts a statutory
right to bargain on the impact and implementation of a mangement
decision, we will not dismiss the case on the ground that the matter
involves differing and arguable interpretations of the negotiated
agreement.
II. Order
The complaint is dismissed.
Case No. 34-CA-80771
NAVAL AVIATION DEPOT NORFOLK, VIRGINIA
Respondent
and
LOCAL LODGE 39, INTERNATIONAL INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
Charging Party
Robert J. Gilson, Esq. For the Respondent
Ana de la Torre, Esq. For the General Counsel
Russell E. Hurdle For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on August 31,
1988 by the Regional Director, Federal Labor Relations Authority, Region
III, a hearing was held before the undersigned on November 15, 1988 at
Norfolk, Virginia.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a charge filed on May 19, 1988 by Local Lodge 39, International
Association of Machinists and Aerospace Workers, AFL-CIO (herein called
the Union) against Naval Aviation Depot, Norfolk, Virginia (herein
called the Respondent).
The Complaint alleged, in substance, that on or about April 24, 1988
Respondent terminated the C shift for bargaining unit employees in Shop
94226, Avionics Division; that it did so without notifying the Union
and providing it an opportunity to negotiate over the impact and
implementation of this change in working conditions -- all in violation
of Sections 7116(a)(1) and (5) of the Statute.
Respondent's Answer, dated September 25, 1988 denied the aforesaid
allegations 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. Briefs were filed with the undersigned which
have been duly considered. /1/
Upon the entire record hereto, from my observation of the witnesses
and their demeanor, from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been the exclusive
representative of all non supervisory employees of Respondent and
employees assigned to the Production Department Shops whose duties are
related to production and maintenance employees.
2. At all times material herein Respondent and the Union have been
parties to a collective bargaining agreement covering the aforesaid unit
employees. The said agreement was executed by the parties on May 27,
1986 and, by its terms, became effective on November 21, 1986 for a
period of three years.
3. The aforesaid agreement contains, inter alia, the following
pertinent provisions:
Article IV
Section 2. It is also recognized that the Employer has an
obligation to notify the Union of proposed changes to conditions
of employment and to bargain over such in accordance with Public
Law 95-454 . . .
Article VIII /2/
Section 6. . . . In the event it becomes necessary to change
or establish a shift not defined, the Employer will advise the
Union in writing furnishing the reason thereof.
Section 9. . . . The selection and rotation of Employees for
assignment to night shift shall be made in accordance with the
following procedures.
a. Night shift assignment will be made for each tour by rate
in inverse order from the shift roster, with the "C" shift being
staffed first.
b. Volunteers for night shift will be utilized for the shift
of their choice first, in order of their appearance on the shop
roster, provided they are of the same rate as the vacancy required
and are qualified to do the work on that shift. Once employees
are assigned night shift work, including those working nights on
the effective date of this Agreement, they will not have their
shift disturbed except by request or in the event there is no
longer a need for their services on the shift. Also, a
volunteer's assignment to the "B" or "C" shift shall not preclude
assignment to the other night shift if it is that employee's
rotational turn for that shift assignment . . . (Emphasis
supplied)
4. About 4000 wage grade employees are employed at the Naval
Aviation Depot in Norfolk, Virginia, who are represented by the
International Association of Machinists and Local 39. The function of
the Depot is to overhaul military aircraft. There are about 1900
employees in the Production Department. Within the Department are 5
major divisions, 11 branches, 25 sections and 100 shops. Between 17-25
individuals work in each shop.
5. There are three shifts worked by Respondent's employees. Shift
"A" from 6:40 a.m. - 8:15 p.m., shift "B" from 3:10 p.m. - 11:40 p.m.,
shift "C" from 11:00 p.m. - 7:00 a.m.
6. On November 13, 1987 Ronald Perry, Respondent's Production
Department Head, spoke to the Union's Chairman, George Yaeckel, and his
assistant Donald Thompson. At their meeting Perry informed the Union
representative that significant reductions in the "B" and "C" shift
staffing would be made due to the general decline in workload. The
former head of this department, William Whitby, testified that in July
or August of the same year he told both Yaeckel and Thompson that
management would have to reduce the number of people in the extra shifts
("B and C") to get the overhead rates down. /3/
7. On April 24, 1988 Respondent eliminated the "C" shift in Shop
94226 which had been in existence, along with "A" and "B" shifts, for 32
years. No notice was given the Union, nor was it afforded an
opportunity to bargain as to the impact and implementation of the
termination.
8. Three employees were on the "C" shift at the time of its
termination: Paul Koss, Frank W. Godak, and Donald Plante. Both Koss
and Godak were assigned to the "A" shift while Plante went on the "B"
shift.
9. Management will normally put people on a shift, or staff it, when
there is an increase in work load. Under such a condition, Respondent's
representative Ronald Perry testified notification would be given to the
Union only as a courtesy -- not by virtue if any obligation. The record
reflects that, in the past, Respondent's practice in regard to notifying
the Union when it planned to terminate a shift has not been consistent.
On some occasions such notification has been given by managers whereas
others have not notified the Union of proposed termination of a shift.
10. Russell E. Hurdle, a Union representative who was chief
negotiator for the Union at its contract negotiations, testified there
were discussions thereat re shift terminations. However, he stated the
Union never gave up its right to receive notice and bargain as to any
impact and implementation.
Glen Rotella, who participated in the 1986 contract negotiation on
behalf of the Union, testified that management did mention during the
discussion that shifts may need to be changed or terminated; that it
was a right of management, but the Union could bargain as to any impact
and implementation. Rotella also stated the Union did not agree to give
up its right to notification or bargain regarding impact and
implementation. /4/
Ronald Perry, Production Head at the Depot, testified he has never
bargained impact and implementation of assignment to "B" or "C" shift
while accompanying his position.
David Chadwick, chief negotiator for Respondent at the 1986 contract
negotiations, testified there was considerable discussions thereat re
shift rotation and assignment; that section 9 in Article VIII was the
mechanism for putting people on and off a shift; that managers were not
advised to notify the Union each time he put a new employee on a shift
or takes one off a shift.
Lawrence Chapman, former branch head in 94226, testified he has
notified the Union of shift changes as he was obliged to discuss same
with the bargaining representative. However, he stated this did not
include elimination of an entire shift.
11. Record facts show the change in shifts for each of the three
employees (Koss, Godak and Plante) resulted in about a $200 per month
reduction in pay. Further, that two of the individuals were required to
change their situation. Godak, who was attending college, was required
to take two weeks of annual leave and rearrange his schedule. Plante's
wife had recently given birth and he was compelled to also use annual
leave to accomplish things he usually did during the daytime.
Conclusions
The issue to be resolved herein is whether the transfer of the three
employees from the "C" shift in shop 94226, without notifying the Union
and bargaining with it concerning procedures to be followed and
arrangements in the adverse effects upon these individuals, was
violative of the Statute.
General Counsel's position is that Respondent terminated the "C"
shift on April 14, 1988; that it failed to notify and bargain with the
Union prior thereto as to the impact and implementation of such action.
In this respect, General Counsel refers to the established case law
which imposes such obligations upon an agency despite the exercise of a
reserved management right. It is further contended that Article 8,
Section 9 of the collective bargaining agreement does not waive the
Union's statutory right to receive notice and to bargain on shift
terminations.
Respondent argues that, under the agreement between the parties,
management is accorded the right to move employees from one shift to
another provided it follows the procedure outlined in the agreement.
Moreover, management pursued that procedure when it moved the three
employees from the "C" shift in shop 94226. Since the parties
negotiated the manner in which the transfer of employees could be
effected, Respondent should not be compelled to renegotiate the matter.
The focal point of the dispute herein apparently centers on the term
"termination" as it applies to the "C" shift in shop 94226. Thus,
General Counsel insists that since the bargaining agreement makes no
mention of terminating a shift, any procedures set forth therein
concerning shift changes have no significance. It is conceded, however,
that Article 8, Section 9 thereof establishes a rotation system for
transferring employees from one shift to another but since the Complaint
alleges "termination" of a shift, Respondent has an obligation to
bargain concerning its procedures.
While the theory of General Counsel's case is clearly stated, the
essential facts herein and the applicable law do not support a
conclusion that such obligation should be imposed upon Respondent. It
is true that the "C" shift was discontinued in Shop 94226, that there is
no evidence that this shift was in fact terminated throughout the Depot.
There were 100 shops in the Productions Department where the "C" shift
was apparently still maintained. The actions taken by Respondent,
irrespective of the terms applied, involved transferring or assigning
the three employees working on that shift to the other two shifts: "A"
(day) and "B" (night). Procedures for this action, contrasted with
eliminating a shift so as to lay off employees, are provided for in the
parties' negotiated agreement.
The Authority has been confronted with a similar time in
Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774.
That case concerned a change in status of two employees from regular
part-time to intermittent. Although the union requested negotiations,
the employer replied it was a reserved management right and not within
the duty to bargain. General Counsel contended that there was an
obligation to bargain re the procedures to be used in exercising such
right, as well as arrangements for employees adversely affected. The
Authority held that no such duty to bargain was owed to the union. It
concluded that the procedures followed by the employer were as
prescribed by the parties negotiated agreement. No new or changed
practices or matters affecting working conditions were established.
While the procedures in the involved case for transferring employees
are not detailed to the extent described in the cited case, Section 9 of
Article VIII does appear to grant the right to Respondent to transfer
employees from shift without being required to negotiate thereon. Thus,
the procedures thereunder provide under 9(b) that "once employees are
assigned night shift work . . . they will not have their shift disturbed
except by request or in the event there is no longer a need for their
services on the shift" (underscoring supplied). Provision is also made
for returning from a night shift to which one has rotated to the former
night shift, as well as the effects of rotation on tenure. Further
details are set forth in section 9 regarding the movement of employees
between shifts to update their skills, /5/ or are newly hired, or for
training purposes.
While not free from doubt, I am persuaded that the language recited
in Article VIII, Section 9 of the agreement was intended to grant
Respondent the right to make shift changes, as transfers, without
imposing an obligation to bargain thereon. Further, that the procedures
for such shift changes were negotiated by the parties so as to absolve
the employer from bargaining thereon. The General Counsel agrees that
no allegation is made that the three employees were incorrectly rotated
into other shifts. Further, that the intent of Article 8, Section 9 is
to establish a rotation system for transferring employees from one shift
to another. No challenge is made to the procedure followed by such
rotation, and the action taken by Respondent was, in fact, a transfer of
the three employees from the "C" shift.
Apart from the foregoing, it could be said that Section 9 leaves some
doubt as to whether its reference to assignment of employees between
shifts encompasses such action when a night shift ("C") is discontinued
within a particular shop. Although I do not conclude that such
"termination" calls for a different conclusion, the most one could
decide is that there exist an arguable interpretation of the negotiated
agreement. Assuming arguendo such conclusion is warranted, it would
likewise compel a dismissal of the Complaint herein. In such
circumstance, the remedy is through the negotiated grievance procedures
under the agreement rather than through the unfair labor practice
procedures. See United States Marine Corps, Washington, D.C. 33 FLRA
105. /6/
Accordingly, on the basis of the foregoing I conclude the Union
surrendered its right to bargain re the procedures and attendant
arrangements for employees in connection with the reassignment or
transfer of the three employees from the "C" shift to the "A" and "B"
shifts. Moreover, that having done so via the negotiated agreement with
Respondent, the latter had no obligation to negotiate in regard thereto.
It is concluded that Respondent did not violate Section 7116(a)(1)
and (5) of the Statute, and I recommend the Authority issue the
following order:
ORDER
It is hereby Ordered that the Complaint in Case No. 34-CA-80771 be,
it hereby is, dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Dated: October 19, 1989
Washington, D.C.
FOOTNOTES
(1) A Motion to Correct Transcript was filed with the undersigned by
the General Counsel. No objection having been interposed, and it
appearing that the proposed correction is proper, the Motion is granted.
(2) In addition to the provisions in this Article set forth by the
undersigned, the agreement contains other clauses which govern night
shift work as well as assignment of newly hired employees to shifts.
Thus Section 10 deals with employees who leave "B" or "C" shift
voluntarily and are replaced, and the crediting or options granted the
employee or his replacement. Section 11 covers possible changes in
shift hours and the Employer's obligation to consult thereon with the
Union. Section 12 deals with requiring employees to take annual leave
for any part of a scheduled shift and the notice to be given him.
Section 13 is concerned with allowable clean up time to employees at the
end of each shift.
(3) The reduction started in December, 1987, although management
started winding down in April, 1987. A general reduction in shift work
occurred between 1986-1988.
(4) Both parties stipulated that Union representative Frances Harold,
who participated in the current contract negotiations, would testify the
same as Hurdle and Rotella if asked the same questions re any waiver by
the Union re its right to notification and bargain on impact and
implementation.
(5) Section 9(d)(14) calls for a discussion with the chief steward
and management as to the length of time an employee assigned to night
shift may be required to come on for days to update skills.
(6) Although General Counsel suggests otherwise, the record does not
support an established practice of Respondent's bargaining in the past
re "terminations" of a shift. Accordingly, I would not find a change in
personnel policies, practices or matters affecting working conditions
which might require negotiations on procedures and arrangements for
adversely affected employees.
39 FLRA 1586
39 FLRA NO. 138
Dept. of the Army, U.S. Army Finance and Accounting Center,
Indianapolis, Indiana and AFGE, Local 1411, Case No. 5-CA-80403 (Decided
March 28, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
SIZE LIMITATION ON UNION NEGOTIATING TEAM
WAIVER BY VIRTUE OF CONTRACT LANGUAGE
DIGEST NOTES
The complaint alleged that Respondent violated the Statute by
refusing to bargain with the Union over changes in conditions of
employment. The Respondent admitted that it had insisted, as a
condition to entering into negotiations, that the Union reduce the size
of its negotiating team, but contended that it was priviliged to impose
such a condition because the parties had agreed to the size limitation
on which it was insisting.
The Authority concluded that by agreeing to an agreement provision,
the Union clearly and unmistakably limited the number of representatives
it could have at negotiation sessions to the total number of management
representatives. By entering into this agreement, the Union clearly and
unmistakably waived its statutory right to determine the number of
representatives for the negotiation sessions at issue in this case.
Accordingly, the Respondent did not violate the Statute, as alleged.
In dismissing the complaint, the Authority rejected the Judge's
alternative theory, under which a supportable or plausible argument that
the parties intended to limit a statutory right by contract would
require the parties to use the contractual grievance procedure to
resolve any disputes as to the extent of the contractual limitation.
Case No. 5-CA-80403
DEPARTMENT OF THE ARMY U.S. ARMY FINANCE AND ACCOUNTING CENTER
INDIANAPOLIS, INDIANA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1411 AFL-CIO
(Charging Party/Union)
DECISION AND ORDER
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent filed an opposition to the
General Counsel's exceptions.
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 with the Union over changes in
conditions of employment. The Respondent admitted that it had insisted,
as a condition to entering into negotiations, that the Union reduce the
size of its negotiating team, but contended that it was privileged to
impose such a condition because the parties had agreed to the size
limitation on which it was insisting.
The Judge concluded that the Union had waived its statutory right to
determine the number of its representatives at the negotiation session
and that the waiver provided a complete defense to the Respondent's
refusal to negotiate with a team of Union negotiators that outnumbered
the management team. The Judge determined that the Union had waived its
statutory right under either of two theories: (1) because the Union had
clearly and unmistakably substituted a contractual provision for its
statutory right, the parties' differences in interpreting the
contractual limitations are to be resolved through the contractual
grievance procedure; or (2) the clear and unmistakable intention of the
parties' contractual arrangements was to limit the Union to the number
of representatives management brought to the negotiating sessions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. For the reasons stated below, we
agree with the Judge that the Union had waived its statutory right to
determine the number of its representatives at the negotiation sessions
in this case and that the waiver provided a complete defense to the
refusal to bargain. Accordingly, we will dismiss the complaint.
We agree with the Judge's conclusion that by agreeing to Article
XXXVII, section 4C of the parties' collective bargaining agreement and
the 1987 settlement agreement purportedly interpreting that agreement,
the Union clearly and unmistakably limited the number of representatives
it could have at negotiation sessions to the total number of management
representatives. We find that the Judge examined the relevant
agreements and the testimony concerning bargaining history and correctly
concluded that by entering into the contractual arrangements with the
Respondent, the Union clearly and unmistakably waived its statutory
right to determine the number of its representatives for the negotiation
sessions at issue in this case. We also agree with the Judge that the
Union's waiver provided a valid and complete defense for the
Respondent's refusal to negotiate with a team of Union negotiators that
outnumbered the management team. Accordingly, we reject the General
Counsel's argument that the Union's failure to comply with the
contractual limitation cannot relieve the Respondent from its duty to
bargain over the changes in conditions of employment. Compar Veterans
Administration, Washington, D.C. and Veterans Administration Medical and
Regional Office Center, Fargo, North Dakota, 22 FLRA 612, 633-34 (1986)
(party may lawfully insist on negotiating a ground rules agreement prior
to commencing bargaining over proposed changes) with U.S. Department of
the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 36 FLRA 912 (1990) (a party may
not lawfully condition further bargaining on reaching an agreement to
ground rules unless the ground rules are designed to enable the parties
to fulfill their mutual obligation to bargain in good faith and not to
impede bargaining).
Accordingly, in agreement with the Judge, we conclude that the
Respondent did not violate section 7116(a)(1) and (5), as alleged, and
we will dismiss the complaint.
In dismissing the complaint, however, we reject the Judge's
alternative theory of violation, under which a "supportable" or
"plausible" argument that the parties intended to limit a statutory
right by contract would require the parties to use the contractual
grievance procedure to resolve any disputes as to the extent of that
contractual limitation. Judge's Decision at 5-6. The established
approach employed by the Authority 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. See Internal Revenue Service,
Washington, D.C., 39 FLRA No. 137 (1991).
In adopting the Judge's conclusion that the Union clearly and
unmistakably waived its statutory right to designate the number of its
representatives for negotiation sessions, we need not address and do not
adopt the Judge's statement that it was appropriate to analyze this case
in terms of shifting burdens. Decision at 7 n.9.
II. Order
The complaint is dismissed.
Case No. 5-CA-80403
DEPARTMENT OF THE ARMY, U.S. ARMY FINANCE AND ACCOUNTING CENTER,
INDIANAPOLIS, INDIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1411, AFL-CIO
Charging Party
John F. Gallagher, Esquire For the General Counsel
Michael C. Barry, Esquire and Mr. William B. Shultz For the
Respondent
Mr. Cornell Burris For the Charging Party
Before: JESSE ETELSON, Administrative Law Judge
DECISION
Statement of the Case
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., (the Statute).
The issue presented for decision is whether the Charging Party (the
Union) partially waived its right under the Statute to designate its
representatives for collective bargaining, by subjecting the number of
its representatives to a contractual limitation.
The complaint alleges that the Respondent unlawfully refused to
bargain with the Union by balking at the number of the Union's
designated representatives for the scheduled negotiations. The
Respondent admits that it insisted, as a condition to entering into
negotiations, that the Union reduce the size of its negotiating team,
but contends that it was within its rights to impose such a condition
because the parties had agreed to the size limitation on which it was
insisting.
A hearing was held on October 5, 1988, in Indianapolis, Indiana. All
parties were permitted to present their positions, to call, examine and
cross-examine witnesses, and to introduce evidence bearing on the issues
presented. The General Counsel and the Respondent submitted
post-hearing briefs.
On the basis of the entire record, the briefs, and from my evaluation
of the evidence, I make the following findings of fact, conclusions, and
recommendations.
Findings of Fact
The Respondent and the Union have a collective-bargaining
relationship, subject to the rights and duties provided under the
Statute, and are parties to a master labor agreement that contains the
following relevant provision:
ARTICLE XXXVII - CONSULTATION AND BARGAINING
Section 4. If the Union requests bargaining under Section 3,
the ground rules for negotiations will be as follows:
c. . . . The number of union representatives will not exceed
the number of management representatives.
It is undisputed that the negotiations giving rise to this case fall
"under Section 3" as referred to in the quoted language above, and that
they involved a subject over which the Respondent was obligated to
bargain with the Union.
Problems arose in 1987, prior to the negotiations at issue here, over
the application of the "will not exceed" provision (Article XXXVII,
Section 4c), when Respondent's labor relations representative William
Shultz showed up as management's sole representative for certain
negotiations. Union President Cornell Burris wanted the Union to have a
negotiating "team" of at least two, because one negotiator did not
constitute a team. Shultz, on the other hand, was expressly concerned
with the number of Union representatives who would be bargaining on
official time. /1/ At a certain point later in 1987, the parties
resolved a whole package of disputes, including some unfair labor
practice charges, by entering into a settlement which included the
following provision addressing the question of negotiating "teams":
(T)he Parties agree that Article XXXVII, Section 4c, shall be
interpreted that the Union shall be permitted to have at least two
representatives on official time during mid-term and interim
bargaining sessions, and shall be allowed additional
representatives on official time equal to the number of Employer
representatives at such sessions.
After the parties thought they had finally disposed of the problem,
the instant dispute arose. On three different occasions, the Union
showed up for negotiations with representatives who were employees on
official time, equal to the number of management representatives, plus a
non-employee representative. /2/ Shultz, as management's spokesman,
told the Union team on each occasion that it had one too many members,
and that he would negotiate as soon as the number was reduced.
Discussion and Conclusion
The parties agree that the issue is one of waiver, and that any
waiver by the Union of a statutory right must, to be effective, be clear
and unmistakable. The crucial predicate for a proper analysis of the
case, however is an accurate identification of the statutory right that
may have been waived, and of the manner by which a waiver may have been
effected.
This is not a case where a party which has refused to bargain
contends that the party which demands bargaining has waived its right to
bargain. For here, the putative waiver goes only to the Union's right
to designate its own representatives for dealing with management, which
right, it may be assumed for the purpose of this discussion, normally
includes the right to determine the number of its representatives. See
American Federation of Government Employees, Local 1738, AFL-CIO, 29
FLRA 178, 188 (1987); Department of Transportation, Federal Aviation
Administration, San Diego, California, 15 FLRA 407 (1984). /3/
As far as the effectuation of the asserted waiver is concerned, there
is no doubt that the basis for the assertion is Article XXXVII, Section
4c, the contractual provision that limits the number of union
representatives to the number of management representatives. The
question that remains in defining the issue is whether it is sufficient
for the Respondent to show that the Union has clearly and unmistakably
substituted a contractual provision for its statutory right, or whether,
in order to prevail, the Respondent must show that the clear and
unmistakable intention of the contractual arrangements was to limit the
Union to the number of representatives management brought to the
negotiating sessions.
I believe that under either theory, the Union has waived its
statutory right, but that the first, the "contractual substitute" theory
as described above, is the appropriate one. A similar situation was
encountered in Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 22 FLRA 91 (1986) (hereinafter
"SSA"). There, management refused to honor the Union's designation of
its alternate local representative to deal with it, relying on a
contractual provision which arguably committed the Union to use only its
regular local representative whenever he was in the office.
Administrative Law Judge Oliver found that, although the union had a
statutory right to designate its own representatives, the parties had
provided by contract for a formalized bargaining relationship, and that
the appropriate avenue for the resolution of a question of
interpretation of the formalized, contractual bargaining relationship
was through the parties' mutually agreed upon grievance and arbitration
procedures rather than through the unfair labor practice procedures.
Id. at 113-114.
I find Judge Oliver's approach, properly understood, to be persuasive
and applicable to this case. /4/ I do not read his SSA opinion as
sanctioning an open-ended opportunity for parties to avoid statutory
duties by relying on a contractual provision that arguably absolves
those duties. Such a reading would subvert the well established
principle that the waiver of a statutory right (the obverse of the
statutory duty involved) must clear and unmistakable. Rather, as
illustrated by the instant, case SSA recognizes that a party (here, the
Union) may choose to substitute a formalized structure for bargaining in
place of its prerogative to designate bargaining representatives freely.
See American Federation of Government Employees, AFL-CIO, 4 FLRA 272,
274 (1980), reaffirmed in Commander, Carswell Air Force Base, Texas, 31
FLRA 620, 627 (1988). A determination that such a choice has been made
must be consistent with the "clear and unmistakable" principle. Thus,
it is not sufficient to point to a contractual provision which might or
might not represent an intention to subsume the statutory right into a
formalized structure. The intention to do so must be clear and
unmistakable. And here, that test is met, for the parties have
unequivocally made the number of union representatives subject to a
contractual limitation. /5/
Using this test, it does not matter whether the provision or
provisions (which the parties have agreed to substitute for the
statutory right) clearly support the Respondent's interpretation as
applied to the incidents in which it refused to bargain. What the
Respondent must show, and has shown, is that the statutory right was,
clearly and unmistakably, intended to be limited, and that the
Respondent has interpreted that limitation in a manner which is
"supportable" /6/ or "plausible." /7/ Pursuant to section 7121(a)(1) of
the Statute, and the contract itself (Article XXXIX, Sections 1 and 2),
the parties' differences in interpreting the contractual limitation are
to be resolved through the grievance procedure.
Assuming, however, that in order to prove a waiver the Respondent
must show that it clearly and unmistakably had the right to insist on
the Union's reducing the number of representatives on its negotiating
team, I find that it has carried that heavy burden. Article XXXVII,
Section 4c, is clear on its face in limiting the total number of union
representatives to the total number of management representatives. No
extrinsic evidence was offered to the contrary. In fact, the Respondent
presented the uncontradicted testimony of the drafter of the language in
question. She testified that it originated in management's concern with
the Union's past tendency to bring too many people to meetings and was
intended to keep the meetings to a reasonable number of people. /8/
Having thus waived its statutory right to that extent, the Union
regained part of what it had given up when it obtained the 1987
settlement provision. By virtue of that provision, management, in
effect, relinquished part of the waiver it had obtained in the contract.
But, since the Union had already waived the right to bring more
representatives than management did, it was not incumbent on the
Respondent to show further that the 1987 settlement provision clearly
and unmistakably reaffirmed the contractual waiver. I believe, rather
that the General Counsel must show that the Respondent relinquished that
aspect of the waiver that is crucial to this case. This the General
Counsel has not done. /9/
Standing alone, the relevant provision in the 1987 settlement
agreement limits only the number of Union negotiators who are on
official time. However, that provision is, on its face, a guide to the
interpretation of Section 4c. The question, therefore, is the extent to
which the "settlement" provision modifies the "will not exceed"
limitation of Section 4c.
Plainly, given the extrinsic evidence on its bargaining history, the
settlement provision was intended to create an exception to the "will
not exceed" limitation, at least in the situation where management
brought only one negotiator to the table. The problem that remains lies
in the fact that the original limitation is addressed to the total
number of Union negotiators, while the interpreting provision speaks
only of negotiators on official time. I am not persuaded that this
narrower focus translates into an intention to eliminate the general
restriction on numbers. The extrinsic evidence shows only that the
parties had different concerns that did not necessarily mesh but
nevertheless negotiated the problematic language. The bargaining
history does not warrant the conclusion that the silence of the
settlement provision on the subject of the total number of Union
negotiators carries with it the affirmative implication that a
limitation on the number of official time negotiators was meant as a
substitute for the Section 4c limitation on the total number. /10/
Thus, that limitation, which I have previously construed as a clear and
unmistakable waiver remained in effect.
I therefore conclude that under either theory of the Respondent's
burden in proving a clear and unmistakable waiver, it has established
such a waiver. That waiver provides it a valid and complete defense for
its refusal to negotiate with a team of Union negotiators that
outnumbered the management team. Accordingly, I recommend that the
Authority adopt the following Order:
ORDER
The complaint in this case is dismissed.
JESSE ETELSON
Administrative Law Judge
Issued, Washington, D.C., April 6, 1989
FOOTNOTES
(1) These characterizations of the respectively stated positions are
based on a composite of the testimony of Shultz and General Counsel's
witness, James Lowe. In this and in most other respects, their
testimony was not mutually inconsistent. Union President Burris,
however, credibly testified that on at least one occasion Shultz refused
to negotiate with a Union "team" of three, even when only one was on
official time, and that this incident led to an unfair practice charge
and, ultimately, to the settlement described below.
Transcript references to "Schultz" should be "Shultz."
(2) In none of the incidents at issue did that part of the settlement
provision giving the Union a minimum negotiating team of two come into
play.
(3) As the Respondent concedes that the Union had a statutory right
(subject to waiver) to determine how many representatives it wished to
designate, it is unnecessary here to explore the limitations on that
statutory right, that is, whether the Respondent could have challenged
the size of the Union's negotiating team as being unwieldy.
(4) I follow this precedent out of choice, not out of a sense that it
is binding. For it is not clear whether the Authority passed on the
judge's relevant finding. In adopting his findings, the Authority noted
"particularly the limited nature of the General Counsel's exceptions,"
(Id. at 91-92) which were "limited to the Judge's dismissal of one
allegation in the consolidated complaint" (Id. at 91). Since the judge
dismissed several allegations, the Authority's published affirmance does
not reveal whether the Authority considered the allegation of refusal to
honor the Union's designation on the merits or adopted the dismissal in
the absence of an exception.
(5) There is no contention that the agreed-upon provisions are merely
a re-statement of the statutory provision, section 7131, authorizing
official time for employee union representatives not exceeding the
number of management representatives. In fact, the provision in the
"settlement" agreement that authorizes a minimum of two employee
representatives on official time is a distinct departure from section
7131. Article XXXVII, Section 4c, on the other hand, does not address
official time at all.
(6) Marine Corps Logistics Base, Barstow, California, 33 FLRA 626,
642 (1988).
(7) Department of the Navy, United States Naval Supply Center, San
Diego, California, 31 FLRA 1088, 1093-94 (1988). See also, Action, 31
FLRA 634, 639 (1988).
(8) This witness' name is Collen Sontag. The transcript is hereby
corrected to reflect the correct spelling of her surname.
(9) It is appropriate to analyze this problem in terms of shifting
burdens only because the Union, having unequivocally waived the right at
issue, no longer stood on the same legal footing it otherwise would have
at the time it signed the 1987 settlement. Had Article XXXVII, Section
4c, and the relevant language in the 1987 settlement agreement been
parts of the same instrument, agreed to simultaneously, one could not
properly construe Section 4c in isolation, but would be required to look
at the "four corners" of the instrument in order to determine whether
there had been a clear and unmistakable waiver upon its execution. As
it is, I have found that there was such a waiver when the contract
containing Section 4c was signed. That waiver remains in effect until
something terminates it.
(10) In the one significant area in which the bargaining history
testimony of General Counsel's witness Lowe clashed with that of
Respondent's witness Shultz, Lowe claimed that Shultz told him he didn't
care how many Union negotiators there were if they were not on official
time. Shultz denied this. Lowe's testimony is undercut by the
testimony of Union President Burris that Shultz previously had refused
to bargain with Burris' negotiating team even after the team members in
excess of the management team members went on "annual leave."
39 FLRA 1568
39 FLRA NO. 137
Internal Revenue Service, Washington, D.C. and National Treasury
Employees Union, Case No. 8-CA-80151 (Decided March 28, 1991)
STATUTE
7116(a)(1) and (5)
7116(d)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REFUSAL TO RECOGNIZE A STEWARD
ALLEGED STATUTORY VIOLATIONS AND ALLEGATIONS OF VIOLATIONS OF THE
AGREEMENT
ARGUABLE OR PLAUSIBLE INTERPRETATIONS OF THE AGREEMENT
SELECTION OF PROCEDURES
WAIVER OF STATUTORY RIGHTS
DIGEST NOTES
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) by refusing to recognize an individual as a steward-at-large
of a Chapter of the Union. The Authority noted that the case presents
the question of what approach should be applied to address cases that
involve an alleged statutory violation and allegations that the parties'
agreement permits the action that is alleged to constitute an unfair
labor practice.
In its analysis, the Authority stated its rejection of an approach
that would dismiss complaints alleging the violation of a statutory
right based on a finding that the parties have proffered differing and
arguable interpretations of the agreement, an analysis that 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. To the extent that
decisions of the Authority have applied such an analysis, such decisions
will no longer be followed.
The Authority noted that the established approach employed by it to
resolve defenses based on an agreement to alleged interference with
statutory rights is to determine whether the charging party has clearly
and unmistakably waived its statutory right. The Authority will
continue to apply such an analysis, even in cases where the parties'
agreement contains some reference to the matter at issue. Similarly,
when the language of the agreement or the bargaining history
demonstrates that the charging party clearly and unmistakably waived its
statutory right, the Authority will find that the agreement permitted
the respondent's action, and the complaint will be dismissed.
Applying the standard to the facts of the case at hand, the Authority
concluded that neither the language of the agreement or the bargaining
history demonstrate that, by agreeing to various provisions of the
agreement, the Union clearly and unmistakably waived its statutory right
to designate its representative. Accordingly, the Respondent violated
the Statute when it refused to recognize the employee as
steward-at-large. Further, in this regard, the Authority did not agree
with the Judge that Respondent's refusal related only to the employees
involvement in grievance proceedings, concluding that the refusal to
recognize encompassed a broader range of representational activities.
Case No. 8-CA-80151
INTERNAL REVENUE SERVICE WASHINGTON, D.C.
(Respondent/Agency)
and
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party/Union)
DECISION AND ORDER
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel and the Charging Party to the attached
decision of the Administrative Law Judge. The Respondent filed an
opposition to the General Counsel's exceptions and the Charging Party's
exceptions. The Respondent also filed a Motion to Dismiss the Charging
Party's exceptions.
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 recognize Cleveland Harris as a
steward-at-large of Chapter 198 of the Union.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings. Upon consideration of the Judge's
decision, the exceptions, the oppositions, and the entire record, we
adopt the Judge's findings and conclusions only to the extent consistent
with our decision.
II. Background and Judge's Decision
The Agency and the Union are parties to a collective bargaining
agreement which contains a negotiated grievance procedure. Article 9 of
this agreement deals, in part, with the designation of stewards and
other individuals who may act for the Union in grievance meetings and in
other matters. /1/
In 1986, an Agency employee, Cleveland Harris, acting as president of
Chapter 198 of the Union, advised the Agency's Los Angeles chief of
labor relations that Harris was designating himself as a steward under
Article 9 of the parties' collective bargaining agreement for all
"organizational segments within Chapter 198." Judge's Decision at 2.
Eventually, Harris left the Agency's employment, but remained the
president of Chapter 198.
On October 19, 1987, Harris wrote a letter to the Agency's district
director for Los Angeles indicating that he remained the "Steward at
Large-EEO" and wished to have access to unit employees and "potential
EEO Complainants" who needed his representation. G.C. Exhibit 3. He
requested either that he be given a small conference room in a
non-restricted area of each of the posts of duty represented by the
Union or that unit employees be provided with sufficient official time,
including travel time, to meet with him off-site.
The labor relations chief of the Agency's Los Angeles District
responded to Harris' letter by advising the Union that the Agency would
no longer recognize Harris "in any capacity as a steward-at-large" or as
a steward because Article 9 of the parties' agreement requires that
stewards must be bargaining unit employees. G.C. Exhibit 4. The Agency
in its response acknowledged Harris' status as chapter president and
indicated the conditions under which Harris could gain access to
employees in his capacity as chapter president. Subsequently, the
Agency permitted Harris to engage in representational functions as
chapter president "or as a personal representative for an individual who
has filed an EEO complaint," but limited his participation in grievance
processing to Step 4 of the procedure. /2/ Id.
The Judge first resolved the extent of the Respondent's alleged
refusal to recognize Harris. The Judge found that Harris had been
permitted to engage in all the representative functions of a chapter
president except those which the Respondent contended are reserved for
stewards who must be bargaining unit employees. After considering the
Agency's response to Harris, the contract language to which the response
referred, and the uncontradicted testimony, the Judge concluded that the
Respondent's alleged refusal to recognize Harris encompassed only
Harris' representative activities in grievance proceedings. He found no
evidence that the Respondent had restricted Harris or intended to
restrict him in any other way.
On the merits of the allegation, the Judge determined that the
implication of a number of decisions of the Authority was that disputes
over the designation of grievance representatives are matters of
contractual rights and responsibilities rather than statutory rights.
He rejected the theory that the Authority currently views the right to
designate grievance representatives as a statutory right subject to
surrender only by a clear and unmistakable waiver. He further found the
Respondent's claim, that in order for a chapter president to act as
steward in a grievance proceeding under the parties' collective
bargaining agreement, the chapter president must be a unit employee, to
be a plausible interpretation of the agreement. Accordingly, the Judge
concluded that the case should be treated as a contract dispute rather
than as an unfair labor practice, and he recommended that the complaint
be dismissed.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel excepts to the Judge's analysis of this case as
one involving contract interpretation rather than the Union's statutory
right to select its own representatives. The General Counsel asserts
that the Judge was incorrect in concluding that the Authority has
abandoned its precedent that holds that cases involving union
designations of representatives must be analyzed as waiver issues. The
General Counsel further maintains that the parties' collective
bargaining agreement does not clearly and unmistakably waive the Union's
statutory right to designate its representatives.
The General Counsel also asserts that, contrary to the conclusions of
the Judge, this case involves a complete refusal by the Respondent to
recognize the Union's designated representative and not simply a
limitation on whether Harris can act as a steward through the first
three steps of the grievance procedure.
B. Charging Party's Exceptions
The Charging Party argues that there has been no departure by the
Authority from its long line of decisions applying a clear and
unmistakable waiver rule in favor of a test based solely on contractual
interpretation. The Charging Party argues that the Authority has not
departed and should not depart from this precedent. The Charging Party
maintains that "(t)he legal question for the Authority . . . is what
test should apply to address the interface between alleged statutory
violations and an agency's claim that the alleged statutory violation is
now merely a contractual dispute." Charging Party's Exceptions at 7.
The Charging Party claims that "(t)he test which the Authority applies
in these circumstances has broad legal and policy implications." Id.
The Charging Party maintains there has been no showing here that it
clearly and unmistakably waived its right to designate its own
representatives. Finally, the Charging Party argues that even assuming
the contractual interpretation theory is sustained, the Judge erred in
finding the Agency's refusal to recognize Harris as a steward was
limited only to participation in the grievance process.
C. Respondent's Oppositions
The Respondent contends that the Judge correctly determined that the
right to designate grievance representatives is no longer considered by
the Authority to be a statutory right subject to surrender only by a
clear and unmistakable waiver, but is, instead, a matter of contract
interpretation. Because its interpretation of the parties' collective
bargaining agreement is at least arguable, the Respondent asserts, the
Judge properly ruled that there was no unfair labor practice. The
Respondent also asserts that the Judge correctly found that the
limitations on the recognition of Harris as a steward or a
steward-at-large were limited to the grievance procedure. The
Respondent maintains that if the Authority were to apply a waiver
analysis, a clear and unmistakable waiver has been demonstrated, and the
complaint should be dismissed on this basis.
In its opposition to the Charging Party's exceptions, the Respondent
argues that the Charging Party's exceptions are procedurally defective.
The Respondent maintains that the Charging Party failed to specifically
designate exactly what portions of the Judge's decision it was excepting
to as required by section 2423.27(a) of the Authority's Rules and
Regulations.
D. Respondent's Motion to Dismiss
The Respondent also filed a Motion to Dismiss the Charging Party's
exceptions for lack of proper service. The Respondent maintains that
the Charging Party's certificate of service failed to specify the manner
in which the service was made as required by section 2429.27(c) of the
Authority's Rules and Regulations.
As part of its opposition to the motion, the Charging Party provided
the Authority with copies of the return receipts indicating that the
Respondent was served by certified mail. The Charging Party stated that
the failure to specify the manner of service was an inadvertent error.
IV. Analysis and Conclusions
A. Procedural Matters
We deny the Respondent's Motion to Dismiss. The Charging Party has
provided the Authority with sufficient evidence of compliance with the
service requirements of section 2429.27 and has explained that the
failure to specify the manner of service was an inadvertent error.
Furthermore, the Respondent has not claimed that it was not served with
a copy of the Charging Party's exceptions.
We also reject the Respondent's contention that the Charging Party's
exceptions are procedurally defective by failing to appropriately
designate the portions of the Judge's decision to which the exceptions
were directed. We find that the Charging Party has set forth with
sufficient particularity those portions of the Judge's decision to which
it excepts. In our view, the parties and the Authority are sufficiently
informed of the basis of the Charging Party's exceptions.
B. Appropriate Standard to Be Applied
We agree with the Charging Party that this case presents the question
of what approach should apply to address cases that involve an alleged
statutory violation and allegations that the parties' collective
bargaining agreement permits the action that is alleged to constitute an
unfair labor practice. We also agree that the approach to these cases
has broad legal and policy implications.
Initially, we reject an approach that would dismiss complaints
alleging the violations of a statutory right based on a finding that the
parties have proffered differing and arguable interpretations of the
collective bargaining agreement. We agree with the Charging Party that
this analysis would permit a respondent to violate protected rights
based solely on an "arguable" or "plausible" interpretation of a
collective bargaining agreement without any necessity of proving that
its interpretation is correct. Clearly, such an approach penalizes
aggrieved parties, who are, under section 7116(d) of the Statute, then
precluded from filing a grievance. Thus, they would have no further
avenue of relief and potential improper actions would go unremedied. It
is well established that national labor policy disfavors the waiver of
statutory rights. For example, Chesapeake & Potomac Telephone Co. v.
NLRB, 687 F.2d 633 (2d Cir. 1982). We find that the use of a "differing
and arguable" analysis in cases involving statutory rights abrogates
important rights granted by the Statute and, consequently, is
inconsistent with the purposes and policies of the Statute. To the
extent that decisions of the Authority have applied this analysis to
alleged violations of statutory rights, such decisions will no longer be
followed. See, for example, Marine Corps Logistics Base, Barstow,
California, 33 FLRA 626, 641-42 (1988).
A union's right to designate its own representatives is a statutory
right. See 5 U.S.C. Section 7114; American Federation of Government
Employees, Local 1738, AFL-CIO, 29 FLRA 178, 188 (1987) (agencies and
unions have the right to designate their respective representative when
fulfilling their responsibilities under the Statute). The established
approach employed by the Authority 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. Department of the Air Force,
Scott Air Force Base, Illinois, 5 FLRA 9 (1981). We will continue to
apply such an analysis, even in cases where the parties' agreement
contains some reference to the matter at issue. See, for example,
Marine Corps Logistics Base, Barstow, California, 39 FLRA No. 97 (1991)
(nothing in parties' agreement or bargaining history established clear
and unmistakable waiver of union's right to bargain about changes in
performance standards); Department of the Navy, Marine Corps Logistics
Base, Albany, Georgia, 39 FLRA No. 91 parties' agreement or bargaining
history established clear and unmistakable waiver of union's right to
bargain over issues presented involving the impact and implementation of
details); U.S. Department of the Treasury, Customs Service, Washington,
D.C., 38 FLRA 770, 784-85 (1990) (nothing in bargaining history or plain
language of contractual provisions supported conclusion that union
waived its right to bargain over proposed changes).
Similarly, when the language of the parties' collective bargaining
agreement or the bargaining history to the agreement demonstrates that
the charging party clearly and unmistakably waived its statutory right,
we will find that the agreement permitted the respondent's actions and
we will dismiss the complaint. See, for example, U.S. Department of the
Navy, United States Marine Corps (MPL), Washington, D.C., 38 FLRA 632
(1990) (based on bargaining history, Authority found union waived its
right to disclosure of unit employees' home addresses); Bureau of
Indian Affairs, Phoenix Area Office, Phoenix, Arizona, 32 FLRA 903
(1988) (by entering into the memorandum of agreement, the union clearly
and unmistakably waived its right to the requested information).
C. Application of the Standard to This Case
We conclude that neither the language of the parties' collective
bargaining agreement nor the bargaining history to the agreement
demonstrates that, by agreeing to the various provisions of Article 9 of
the collective bargaining agreement, the Union clearly and unmistakably
waived its statutory right to designate its representatives. In this
regard, we agree with the Judge's findings that the Respondent's reading
of the relevant provisions "is not the only plausible interpretation,"
and that "the bargaining history of these provisions . . . would support
the parties' respective positions." Judge's Decision at 8. In such
circumstances, it cannot be shown that the parties' agreement
specifically addresses the issue of whether a steward-at-large must be a
unit employee. See Marine Corps Logistics Base, Albany, 39 FLRA No. 91,
slip op. at 8. And, in the absence of conclusive evidence in the
bargaining history that the parties intended such a result or any
evidence that would support a finding of an express waiver, we conclude
that the Union did not clearly and unmistakably waive its right to
designate its representatives.
Accordingly, the Respondent violated section 7116(a)(1) and (5) of
the Statute when it refused to recognize Cleveland Harris as a
steward-at-large of the Union. In this regard, we do not agree with the
Judge that the Respondent's refusal to recognize Harris in this capacity
related only to his involvement in grievance proceedings. In his
October 19, 1987, letter, Harris requested access to the employees in
his capacity as "Steward at Large-EEO" and expressly linked his request
to his desire to meet with "potential EEO Complainants." G.C. Exhibit
3. The Respondent's refusal to recognize Harris "in any capacity as a
steward-at-large(,)" G.C. Exhibit 4, clearly encompassed Harris' request
to represent employees in EEO proceedings as a steward-at-large.
Indeed, the Respondent expressly limited Harris' activities in this
regard to those of "a personal representative for an individual who has
filed an EEO complaint(.)" Id. Moreover, there is testimony in the
record that Harris' involvement in Equal Employment Opportunity
Commission (EEOC) hearings was limited to appearing as a personal
representative or as a witness. Tr. at 34-35, 40. Therefore, we
conclude that the Respondent's refusal to recognize Harris as a
steward-at-large encompassed a broader range of representational
activities than merely the grievance procedure.
V. 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 Internal Revenue Service, Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to recognize Cleveland Harris as
steward-at-large of the National Treasury Employees Union, Chapter
198, the exclusive representative of certain of its employees in
its Los Angeles, California, District.
(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) Upon request, recognize Cleveland Harris, or any individual
who serves in the same position, as steward-at-large of the
National Treasury Employees Union, Chapter 198.
(b) Post at its Los Angeles, California, District facilities
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of the forms,
they shall be signed by the Regional Commissioner and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that these Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, San Francisco Regional
Office, whose address is: 901 Market Street, Suite 220, San
Francisco, CA 94103, and whose telephone number is: (415)
744-4000.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to recognize Cleveland Harris, or any individual
who serves in the same position, as steward-at-large of the National
Treasury Employees Union, Chapter 198, the exclusive representative of
certain of our employees in our Los Angeles, California, District.
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, upon request, recognize Cleveland Harris, or any individual
who serves in the same position, as steward-at-large of the National
Treasury Employees Union, Chapter 198, the exclusive represetative of
certain of our employees in our Los Angeles, California, District.
(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, California 94103, and whose telephone number is: (415)
744-4000.
Case No. 8-CA-80151
INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Kenneth Russell, Esquire and Gerald M. Cole, Esquire (on the Brief)
For the General Counsel
James D. Bailey, Esquire and Andrew R. Krakoff, Esquire (on the
Brief) For the Charging Party
Richard M. Slizeski, Esquire For the Respondent
Before: JESSE ETELSON, Administrative Law Judge
DECISION
Statement of the Case
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., (the Statute).
Upon an unfair labor practice charge filed by the National Treasury
Employees Union, (NTEU) against the Internal Revenue Service,
Washington, D.C., the General Counsel of the Federal Labor Relations
Authority (the Authority), by the Acting Regional Director for Region 8,
issued a Complaint and Notice of Hearing on March 4, 1988. The
Complaint alleges that the Respondent violated Section 7116(a)(1) and
(5) of the Statute by refusing to recognize Cleveland Harris as a
steward-at-large of Chapter 198 of NTEU.
A hearing was held on May 26, 1988, in Los Angeles, California. All
parties were permitted to present their positions, to call, examine, and
cross-examine witnesses, and to introduce evidence bearing on the issues
presented. The General Counsel, NTEU, and IRS submitted post-hearing
briefs. /3/
On the basis of the entire record, the briefs, and my evaluation of
the evidence, I make the following findings of fact, conclusions, and
recommendation:
Finding of Fact
IRS and NTEU have been parties to a series of nationwide
collective-bargaining agreements affecting employees of IRS represented
by NTEU. The current agreement is called "NORD II", an acronym for the
parties' second "National Office Regions and Districts" agreement. NORD
II contains a negotiated grievance procedure and a separate article,
Article 9, dealing, in part, with the designation of stewards and other
individuals who may act for NTEU in grievance meetings and in other
matters.
In 1986, employee Cleveland Harris, as president of Chapter 198 of
NTEU, advised the chief of IRS' labor relations section for its Los
Angeles District that Harris was designating himself as steward under
Article 9 for all "organizational segments within Chapter 198."
Subsequently, Harris left the employment of IRS, but remained Chapter
198 president. On October 19, 1987, he wrote a letter to the IRS
district director for Los Angeles, stating that he remained
"steward-at-large" (a position described separately in NORD II Article
9) and, as such, needed provisions to be made for his access to unit
employees who needed representation. The response to this letter came
from Al Julg, the IRS labor relations chief to whom Harris had addressed
his 1986 designation of himself as steward. Julg advised NTEU that IRS
would no longer recognize Harris either as a "steward-at-large" or as a
"steward" because such officials must, under a subsection of Article 9,
be bargaining unit employees. However, Julg acknowledged Harris' status
as chapter president, and set forth the conditions under which Harris
would be given access to employees in that capacity.
Since the date of that response, Harris has been permitted to engage
in all the representative functions of a chapter president except those
which IRS contends are reserved for stewards who are bargaining unit
employees. Essentially, that limitation applies only to the stage of
the negotiated grievance procedure at which a chapter president is,
according to IRS' interpretation of the contract, permitted to
participate. The extent of this limitation reflects the fact that while
Article 41, the article of the contract setting forth the grievance
procedure, differentiates the functions of stewards and chapter
presidents, Article 9, described in brief above, does not. The General
Counsel and NTEU would characterize Julg's refusal to recognize Harris
more broadly, in light of his memorandum which refuses to recognize him
"in any capacity as a steward-at-large" or "in any capacity as a steward
for any organizational segment." However, the memorandum as a whole
(G.C. Exh. 4), considered together with the contract language to which
it refers and the uncontradicted testimony of IRS Labor Relations
Specialist Kamins, presents a much less sweeping limitation of Harris'
representative capacity. To the extent that it is contended that the
refusal to recognize encompassed Harris' representative activities other
than in grievance proceedings, the General Counsel has not sustained the
burden of so proving. That is, there is no evidence that IRS has
restricted Harris or intends to restrict him in any other way.
Discussion and Conclusions
The General Counsel and NTEU contend that IRS may not reject NTEU's
designation of its steward or steward-at-large absent a clean and
unmistakable waiver of the Union's right to designate such
representatives. They argue against the existence of such a waiver,
asserting that the contractual provision that requires stewards to be
unit employees is inapplicable to a chapter president who designates
himself as steward. Refusing to accord Harris his designated status of
steward or steward-at-large, they, argue, constitutes a refusal to
bargain and an interference with the rights of the employees whom
Chapter 198 represents.
IRS argues that the matter of the identity of the Union's
representative in grievance proceedings is governed by the
collective-bargaining agreement, not by a statutory right, and that the
parties' dispute over the correct interpretation of the contract
provisions governing stewards and stewards-at-large must be resolved, if
at all, under the grievance procedure to which the parties have agreed.
I conclude, for the reasons that follow, that this argument prevails.
/4/
The traditional view, held by the Authority since it first addressed
the issue, is that each party to the bargaining relationship
contemplated under the Statute has the sole right (over which it need
not bargain) to designate its own representatives for dealing with the
other party for collective-bargaining purposes. American Federation of
Government Employees, AFL-CIO, 4 FLRA 272, 274 (1980). Despite relevant
developments that will be discussed below, the Authority adheres in
general to that principle. See American Federation of Government
Employees, Local 1738, AFL-CIO, 29 FLRA 178, 188 (1987). In fact, in
Internal Revenue Service, Washington, D.C. and Fresno Service Center,
Fresno, California, 16 FLRA 98, at 98-99, 121-123 (1984), (hereinafter
referred to as "IRS Fresno"), the Authority found a violation of
Sections 7116(a)(1) and (5) in the refusal of IRS to permit the union's
chief steward to participate in a grievance meeting, despite the
assertion by IRS that the contract contained a waiver of the union's
right to designate the chief steward as its representative. Thus, were
the state of the law today what it was when IRS Fresno was decided, it
would appear that the General Counsel's theory of the instant case would
govern.
However, a different approach, or, more precisely, a combination of
different approaches, began to emerge some time later. In Department of
Health and Human Services, Social Security Administration, BBaltimore,
Maryland, 22 FLRA 91, 113-114, (1986) (hereafter "SSA"), the Authority
adopted the administrative law judge's finding that a refusal to honor
the union's designation of its represetnative to bargain over certain
proposed changes affecting unit employees was a matter for contract
interpretation through the contractual grievance and arbitration
procedures rather than through unfair labor practice procedures. The
rationale for this result was that, since the parties had agreed to a
formalized bargaining relationship, and the contract was susceptible to
either the agency's interpretation (which restricted the Union's
designation of a bargaining representative) or the General Counsel's
interpretation (under which the union had not waived the right to
designate whomever it wished), the parties' mutually agreed grievance
and arbitration procedure was the appropriate avenue for resolution of
the dispute. This theory, while acknowledging the union's right to
designate its representative as a statutory right, contemplates that the
nature of that right changes once the parties have, by agreement,
formalized the procedures of the bargaining relationship. Once those
procedures have become matters of contract, legitimate disputes
regarding their application are deemed to be similar to any other
contract dispute.
Under SSA, the statutory right to designate a representative becomes
a matter for contract interpretation under the negotiated
grievance-arbitration procedures by virtue of the parties' voluntarily
incorporating the subject of designated representatives in their
agreement. As the facts in SSA demonstrate, this result does not depend
upon the designations in question being for representatives in the
grievance procedures themselves, but would apply to designations of
representatives for all aspects of the bargaining relationship. Thus,
SSA would have potential applicability here even if IRS' refusal to
recognize Harris encompassed more than the contractual grievance
functions of stewards and stewards-at-large. However, I do not regard
SSA as the strongest precedential basis for disposition of this case, in
part because it is not clear whether the Authority passed on the judge's
relevant finding. For, in adopting his findings, the Authority noted
"particularly the limited nature of the General Counsel's exceptions,"
which were "limited to the Judge's dismissal of one allegation in the
consolidated complaint." Since the judge dismissed several allegations,
the Authority's published affirmance does not reveal whether the
Authority considered the allegation of refusal to honor the Union's
designation on the merits or adopted the dismissal in the absence of an
exception. /3/
A recent development in Authority precedent provides more compelling
guidance for this case. In National Federation of Federal Employees,
Local 29 and Department of Defense, HQ U.S. Military Entrance Processing
Command, 29 FLRA 726, 728-30 (1987) (hereinafter "NFFE"), the Authority
held a union proposal concerning the identity of management
representatives at various steps of the grievance procedure to be
negotiable. The Authority reasoned that the requirement of section 7121
of the Statute that the parties negotiate a grievance procedure takes
precedence over the management right to assign a particular individual
the responsibility for hearing a grievance at a particular step of the
procedure. The Authority specifically held that the designation of the
individual was a matter concerning the structure of the grievance
procedure and thus fell within an exception that, the Authority
declared, section 7121 carved out of the management right to assign
work.
Soon afterward, the Authority had occasion to consider the
negotiability of the issue of the identity of union officials who could
process grievances. The Authority applied the rationale of NFFE, and
held that the section 7121 requirement to negotiate over grievance
procedures took precedence over the union's general right to designate
its representatives. Commander, Carswell Air Force Base, Texas, 31 FLRA
620, 627-28 (1988). /6/ This limited exception to the unilateral right
to designate depends not on the parties' voluntary undertaking to reach
an agreement formalizing the bargaining relationship, as in SSA, supra,
but on the statutory requirement that they negotiate whether they are
willing to or not. On the other hand, Carswell has narrower
applicability than SSA in one important respect. It affects only the
right to designate grievance representatives.
I consider a logical implication of Carswell and NFFE to be that
disputes over the designation of grievance representatives are matters
of contractual rights and responsibilities rather than of statutory
rights. Further, I conclude that this implication, while not
necessarily inescapable, is more consistent with the rationale of
Carswell and NFFE than the alternative theory that the right to
designate grievance representatives is still a statutory right subject
to surrender only by a clear and unmistakable waiver. I believe that
this view of the Authority's thinking is supported by its recent
willingness to characterize a dispute over the union's right to
investigate grievances as a contract dispute, not suitable for
disposition as an alleged unfair labor practice. Marine Corps Logistics
Base, Barstow, California, 33 FLRA 627, 640-42 (1988).
It remains only to ensure that IRS' contract interpretation has
sufficient basis to support the contention that this case should be
treated as a contract dispute. The Authority has put its imprimatur on
various characterizations of the minimum showing a party must make in
this regard. Thus, it presumably is not sufficient for a party merely
to assert that there is a real dispute as to contract interpretation.
In the recent Marine Corps case, supra, the Authority found it
sufficient that the respondent's interpretation was "arguable," noting
that its argument concerning the wording of the provision in dispute was
"plausible." Id. at 642. /7/ Here, the agreement contains provisions
which (1) require all stewards except chapter presidents and chief
stewards to be bargaining unit employees (2) subject stewards-at-large
to all provisions respecting stewards (with exceptions that do not
appear to affect the requirement that they be bargaining unit
employees), and (3) differentiate the role of steward and the role of
chapter president in the grievance procedure.
These provisions give at least colorable support to IRS' claim that a
chapter president, when acting as a steward in a grievance proceeding,
is subject to the unit employee requirement. It is not the only
plausible interpretation, and extensive testimony by witnesses on both
sides gave impressive support to versions of the bargaining history of
these provisions that would support the parties' respective positions.
Nevertheless, the considerations discussed above persuade me that the
Authority would not have me sort it out. In these circumstances, my
recommendation is that the Authority adopt the following Order:
ORDER
The Complaint in this proceeding is dismissed.
Issued, Washington, D.C., December 29, 1988
JESSE ETELSON
Administrative Law Judge
FOOTNOTES
(1) Article 9, Section 1(A) of the parties' agreement states:
"Unless otherwise expressly stated, wherever in this article the term
'steward' is used, it shall include chief stewards, chapter presidents,
joint council chairpersons, and any other individuals authorized by the
Union in advance to act on its behalf."
Article 9, Section 1(B)(2) states: "All stewards, except chapter
presidents and chief stewards, must be bargaining unit employees of the
appointing office in which they serve."
(2) Article 41, Section 7 of the parties' agreement permits stewards
to appear at steps 1 through 4 of the grievance procedure, but limits
the participation of chapter presidents to step 4.
(3) A few days before the hearing, IRS filed a motion to dismiss the
Complaint. Essentially, the basis of the motion was that the alleged
unfair labor practice represented nothing more than a dispute over the
interpretation of a collective-bargaining agreement which should be
resolved through the grievance-arbitration process. The motion was
referred to the Chief Administrative Law Judge and was presented to the
undersigned at the hearing, where the IRS supplemented it with an oral
motion for summary judgment. I reserved decision on these motions, and
IRS renewed them with an addendum submitted after the hearing.
(4) Since I deem this procedural bar to be dispositive, I do not
reach any of the other issues raised by the parties.
(5) On the state of the Authority's position on the availability of
unfair labor practice and grievance avenues, generally, see Federal
Aviation Administration, Spokane Tower/Approach Control, 15 FLRA 668
(1984); Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, 19 FLRA 421, 422-423 n.5 (1985) (refusing to
adopt NLRB's Collyer Insulated Wire doctrine of deferral to arbitration
procedures); 22nd Combat Support Group (SAC), March Air Force Base,
California, 30 FLRA 331, 334 (1987); and Judge Oliver's attempt to
harmonize Authority precedent, in Department of the Army, Fort Riley,
Kansas, 26 FLRA 222, 238 (1987). See also Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 18
FLRA 855 N.1 and cases cited (1985); and compare it with Department of
Defense, Department of the Army, Headquarters, XVIII Airborne Corps, and
Fort Bragg, 15 FLRA 790, 793 n. 2 (1984) and Veterans Administration,
Veterans Administration Medical Center, Muskogee, Oklahoma, 19 FLRA
1054, 1058-59 (1985).
(6) It should be noted that, in NFFE, the section 7121 requirement
expressly overrode the management right to assign work, but by necessary
implication also overrode management's counterpart to the union's right
to designate its representatives.
(7) Cf. Department of the Navy, United States Naval Supply Center,
San Diego, California, 31 FLRA 1088, 1093-94 (1988) ("different and
supportable interpretations"); Department of the Army, Fort Riley,
Kansas, supra, 26 FLRA at 238 ("On the other hand, if Respondent's
interpretation of the agreement is untenable, an unfair labor practice
may be found.")
39 FLRA 1542
39 FLRA NO. 136
Dept. of Transportation, Federal Aviation Administration, El Paso,
Texas and Enrique Canales, Case No. 6-CA-80122 (Decided March 28, 1991)
STATUTE
7116(a)(1) and (2)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
DISCRIMINATION FOR FILING A GRIEVANCE
UNION ANIMUS
MIXED MOTIVE
DIGEST NOTES
The complaint alleged that the Respondent unlawfully terminated an
employee, Enrique Canales, because he filed a grievance on behalf of the
Union. In disagreement with the Judge, the Authority concluded that
Canales' filing of the grievance was amotivating factor in the
supervisor's decision to terminate Canales' administrative duties
assignment and, therefore, the General Counsel established a prima facie
case of discrimination. Further, the Authority concluded that the
Respondent's assorted reasons for its actions were pretextual and that
the Respondent did not demonstrate that there was an additional,
legitimate justification for its actions. As a remedy, in addition to
providing for a cease and desist order, the Authority found that in this
case the purposes and policies of the Statute would most appropriately
be effectuated by ordering the Respondent to restore to Canales the 3
days of sick leave he was required to use after his administrative
duties assignment was improperly terminated.
Case No. 6-CA-80122
UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION
ADMINISTRATION EL PASO, TEXAS
(Respondent)
and
ENRIQUE CANALES
(Charging Party)
DECISION AND ORDER
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 (2) of the Federal Service
Labor-Management Relations Statute (the Statute) by terminating an
employee's administrative duties assignment because he had filed a
grievance on behalf of the National Association of Air Traffic
Specialists (the Union). 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. The
Respondent did not file 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, contrary to the Judge, we
find that the Respondent violated section 7116(a)(1) and (2) of the
Statute as alleged.
II. Facts
The facts, set forth more fully in the Judge's decision, are
summarized below.
Enrique Canales is an air traffic control specialist at the
Respondent's El Paso Flight Service Station (the Station). Air traffic
control specialists perform such duties as controlling and maintaining
flight services and briefing pilots on weather conditions and flight
plans. Duties involving pilot contact are considered to be critical.
At the time of the alleged incident, Canales was the Station
representative for the Union and had held that position for
approximately 3 years. In that capacity, he had filed grievances on
behalf of bargaining unit employees.
Carlos Gonsalez, a second-line supervisor, has been the manager of
the Station since 1981. In 1983, when employee Alfonso Rey was the
union representative, Gonsalez threatened Rey following two meetings
where Rey was the union representative. Tr. at 57-59. Specifically,
Gonsalez stated that he "would not allow (Rey) to trade (shifts) with
the other people on the floor(,)" and, as a result, Rey would be unable
to attend night school. Id. at 58. Further, Gonsalez had previously
been told by the Respondent's regional office "not to touch the
(Union's) bulletin board" after referring to the Union's newsletter as
"toilet paper." Id. at 37. In November 1986, Gonsalez discussed
Canales' Union activity with Rey. Gonsalez asked Rey "what Canales 'was
up to;' whether Rey was aware of the grievances Canales had been filing;
did Canales keep the people informed and represent them; and suggested
that Rey should run against Canales in the next election of a union
representative." Judge's Decision at 4.
In June 1987, the Respondent's regional office included a report on
Canales' performance and relationship to Gonsalez in its evaluation of
the Station. The report stated, in part, that "(t)o avoid (the)
appearance of retribution for past conflicts, Carlos (Gonsalez) must
avoid any involvement (in monitoring Canales) unless it is initiated by
the area supervisors." Id.
Canales became ill and was on sick leave from June 25, 1987, through
July 6, 1987. If an air traffic control specialist is sick or is taking
medication that could impair the employee's performance, the Respondent
"may permit the individual to perform non-critical duties (such as):
flight data (keeping an eye on traffic and flight plans) and data
communications (receiving and transmitting flight plans)." Id. at 3.
If an employee has been medically disqualified from performing control
tasks or is on "prohibitive" medicine, the employee "is not usually
permitted to perform flight data or data communication duties." Id.
However, the Respondent may assign employees who are medically
disqualified, including those on medication that causes drowsiness, to
perform administrative duties including filing, updating manuals,
transmitting and receiving flight plans, and certain sorts of training.
Id. at 3, 4. The Agency's regional flight surgeon determined that the
medications Canales was required to take could result in drowsiness.
Consequently, the flight surgeon issued a medical disposition form
indicating that Canales was temporarily medically disqualified but could
perform any type of administrative duties. Id. at 5.
Upon being told by the regional flight surgeon that one of the
medicines that Canales was taking "was prohibitive since it caused
drowsiness(,)" Gonsalez wrote to Canales on July 7, 1987 that "the
employee was not to return to duty until agreed to by (the regional
flight surgeon)." Id. at 6. On July 9, 1987, Canales reported to
Gonsalez's office and "asked to be given administrative duties as
allowed by the doctor." Id. Gonsalez denied the request and told
Canales that he "was to be on sick leave." Id. When Canales asked why
he was to be on sick leave, Gonsalez told him to call the flight surgeon
and "to leave the office." Id. Canales called the doctor and was told
that he could perform administrative duties. Canales reported what he
had been told by the doctor to Carl Hendrickson, one of his immediate
supervisors. Hendrickson stated that "he saw no problem." Id. Canales
again met with Gonsalez and "informed the manager that (the regional
flight surgeon) recommended administrative duties for (him)." Gonsalez
told him that he "would be on sick leave; that there was no
administrative work for him to do." Id.
The next day, Friday, July 10, Hendrickson and Dino Baca, another
first-line supervisor, met with Gonsalez and "asked him to approve
administrative duties for Canales." Id. Hendrickson and Baca argued
that to do so would enhance "human relations." Id. They also stated
that the "would make up work for Canales to do." Id. Gonsalez "testified
that there were no extra duties for Canales to perform, but he consented
to the supervisors' request." Id. Gonsalez sent Canales a memorandum
that day advising him of his assignment to administrative duties
effective Monday, July 13. The memorandum further stated that the
assignment was "contingent on the availability of meaningful
administrative work and may be terminated for lack thereof." Id. at 7.
Hendrickson told Canales that "his administrative time was approved,
that he would be posted for two weeks and then the situation would be
evaluated to decide if there were meaningful duties left for him to do."
Id. Hendrickson "did not assign Canales any duties involving flight data
and data communications because (the regional flight surgeon) said not
to do so." Id. During the second week of Canales' assignment, Gonsalez
discovered that Canales was away from his duty area and "wandering
around" the Station. Id.
On July 23, 1987, Canales filed a grievance with Gonsalez on behalf
of another employee concerning the replacement of a desk. Upon
receiving the grievance, Gonsalez "remarked it was a nit-picky and
mickey mouse grievance." Id. The next day, July 24, Gonsalez prepared
and presented Canales with a memorandum informing Canales that "Gonsalez
had determined there no longer existed enough meaningful administrative
work to justify the continued assignment to Canales of administrative
duties." Id. Gonsalez testified that on or about Wednesday, July 22, he
and Baca met and decided that there were no meaningful administrative
duties for Canales to perform. Tr. at 146-47. Hendrickson testified
that on Friday, July 24, he, Gonsalez, and Baca discussed for the first
time taking Canales off administrative duties. Tr. at 169-70, 185.
Canales' assignment was terminated at the end of his shift on July 24
and Canales was required to take 3 days of sick leave before being
certified to return to traffic control duties by the regional flight
surgeon.
The Respondent maintains an administrative staff of five employees,
including first-line supervisors Hendrickson and Baca. No employee had
previously been removed from an administrative duties assignment due to
a lack of "meaningful" work. Judge's Decision at 11. One employee who
was temporarily medically disqualified from performing control duties,
Jefferson Goldstein, "was assigned to administrative duties for a
month." Id. at 5. Both Hendrickson and Goldstein testified that there
was not sufficient administrative work for Goldstein to perform, and
Goldstein stated that on one day he took sick leave because he "became
too bored to stay at work." Tr. at 74, 179. Goldstein remained on
administrative duties for 10 or 11 more days following the day he took
sick leave. Tr. at 74.
III. Administrative Law Judge's Decision
The Judge stated that in order to establish that the employer has
discriminated against an employee in violation of section 7116(a)(2) of
the Statute, the General Counsel must establish a prima facie case of
discrimination. A prima facie case is made when it is shown that "an
employee was engaged in protected activity known to the employer, and
that said conduct was a motivating factor in an agency's decision which
adversely affected the employee." Judge's Decision at 8, citing United
States Department of the Treasury, Internal Revenue Service and United
States Department of the Treasury, Internal Revenue Service, New Orleans
District, New Orleans, Louisiana, 30 FLRA 1013 (1988) and Internal
Revenue Service, Washington, D.C., 6 FLRA 96 (1981). The Judge noted
that once a prima facie case is established, "the agency is required to
show by a preponderance of the evidence that it would have reached the
same decision . . . in the absence of the protected activity." Id. at 8
n.5.
The Judge found that "(n)o question arises with respect to the fact
that Canales was engaged in protected activity when he filed a
grievance" on July 23, 1987 and that the "Respondent had knowledge of
such activity(.)" Id. at 8.
The Judge found, however, that "a sharp dispute exists as to whether
the action taken by management toward Canales was motivated by union
animus so as to constitute discrimination." Id. In this regard, the
Judge looked at the following factors asserted by the General Counsel as
evidence of discrimination: (1) the timing of the incident; (2) the
history of union animus on the part of Gonsalez; and (3) the disparate
treatment received by Canales as he was the only employee to have
administrative duties terminated under similar circumstances.
As to the timing of the incident, the Judge noted that "(a)t first
blink it may be viewed with suspicion that the removal of Canales from
administrative duties followed the day after the grievance was filed."
Id. at 9. However, the Judge also noted that "(w)hile it may be
concluded that the decision to take this action was made on July 24,
record facts show the(r)e were ongoing discussion(s) between supervisor
Hendrickson and Gonsalez that there were not enough meaningful duties
for Canales to perform." Id. Moreover, the Judge stated that "on July
22 Gonsalez spoke to supervisor Baca at which time they also came to the
same conclusion, and Gonsalez testified he decided then to take Canales
off administrative duties." Id. The Judge concluded that "(t) hese
facts militate against considering the time sequence as str(o)ng support
for raising an inference of illegal motivation." Id.
With respect to the history of union animus displayed by Gonsalez,
the Judge found that "a very unfriendly relationship existed between
Canales and Gonsalez." Id. In this regard, the Judge noted that
"Gonsalez even suggested in November 1986 that another employee . . .
run against Canales for union representative." Id. However, "(d)espite
this background and a few comments made by Gonsalez concerning the
Union," the Judge found that he was "unable to conclude that the manager
evinced such pronounced anti-unionism so as to warrant the inference
that it formed the basis for his action on July 24." Id. Further, the
Judge noted that Canales had previously filed several other grievances
and that "(w)hile Gonsalez did question Rey in 1986 (on) whether the
latter was aware of grievances filed by Canales," there was "no showing
that the manager confronted Canales in regard to any grievances he filed
in the past." Id. at 9-10 (citation to footnote omitted). The Judge
further noted that while Gonsalez's comment that the July 23 grievance
was "nit-picky" in nature "may reflect annoyance on the pa(r)t of
Gonsalez(,)" it did not "give rise to a finding of intense opposition or
hostility to the practice" of filing grievances. Id. at 10 n.6. The
Judge concluded that the "animus exhibited by Gonsalez was directed
toward Canales as an individual and not based on his status as union
representative." Id. at 10. Under these circumstances, the Judge found
that the "General Counsel has not established union animus upon which to
base a finding of discriminatory action by (the) Respondent." Id.
As to the claim that Canales was the victim of disparate treatment,
the Judge again found that the evidence did not warrant an inference
that the termination of Canales' administrative duties assignment was
discriminatorily motivated. Noting the General Counsel's argument that
other employees who were medically disqualified and assigned
administrative duties performed flight data and data communications
duties, the Judge found that the "illnesses befalling (the employees
noted by the General Counsel) were not of the same serious nature as
that suffered by Canales" and that, unlike with Canales, "(n)o
particular problem seemed apparent in assigning (the employees noted by
the General Counsel) to flight data duties." Id.
The Judge also noted the General Counsel's stress on the fact that
Canales' administrative duties assignment was allegedly terminated for
lack of meaningful work even though "employee Goldstein and others
continued with such duties despite insufficient work being available for
them." Id. at 11. However, the Judge rejected this as evidence of
disparate treatment, noting that: (1) "supervisor Hendrickson testified
there were no meaningful duties for Canales to perform when the latter
was given administrative duties on July 10"; (2) "there were ongoing
discussions which Gonsalez had with the supervisors as to the fact that
Canales had little work to do"; and (3) "there is a regular group which
handles (administrative) duties, (so) one could well anticipate that an
employee assigned such work would not continue to perform these duties
for an extended time." Id. Although "management did not terminate
administrative duties of other air traffic control specialists," the
Judge found it "unreasonable . . . (to) foreclose (the) Respondent from
ever doing so when no meaningful work is available(.)" Id.
In summary, the Judge found that the Respondent did not discontinue
Canales' administrative duties on July 24, 1987 in retaliation for the
grievance Canales filed on July 23, 1987 and, therefore, concluded that
the General Counsel did not establish a prima facie case of unlawful
discrimination within the meaning of section 7116(a)(2) of the Statute.
Accordingly, the Judge recommended that the complaint be dismissed.
IV. The General Counsel's Exceptions
The General Counsel argues that the Judge erred in failing to find
that the General Counsel established a prima facie case that Canales was
discriminated against because of his union activity. In this regard,
the General Counsel contends that the Judge failed to: (1) consider all
of the evidence presented on the issue of union animus; (2) find that
there was disparate treatment; and (3) consider the totality of the
circumstances and evidence.
As to the Judge's finding on union animus, the General Counsel argues
that, contrary to the Judge's determination, "the evidence of Gonsalez'
animus toward the Union was indeed serious" and, therefore, was
"sufficient to find that Gon(s)alez' termination of Canales'
administrative duty detail assignment was ( ) because of his union
activity." Exceptions at 11, 12. In this regard, the General Counsel
notes the following instances of union animus on the part of Gonsalez:
(1) Gonsalez's attempt "to secure a competitor to run against Canales"
in a Union election was "directed straightforwardly against Canales";
(2) Rey, the previous union representative, testified that after
particularly "heated" grievance or labor-management meetings with
Gonsalez, "Gonsalez would threaten to deprive Rey of his ability to
change shifts with other employees"; (3) there was "unrefuted testimony
that Gonsalez once stated he would use the Union newsletter as to(il)et
paper"; and (4) "Gonsalez once approached Rey and questioned him
extensively concerning the subject of Canales' union activity,
especially with respect to his filing of grievances." Id. at 11-12.
With respect to the Judge's finding on disparate treatment, the
General Counsel contends that "the evidence presented at (the) hearing
clearly established that Canales was the only employee at the El Paso
Flight Service Station to have his administrative duty detail terminated
for any reason." Id. at 13. Moreover, the General Counsel notes that
employee Goldstein, who had not been involved in any union activity, had
"been placed on an administrative duty assignment for an extended period
of time" and even though "there were not always administrative duties
avai(l)able for him to perform, ( ) his administrative duty assignment
was never terminated." Id. at 14.
The General Counsel disputes that the disparate treatment of Canales
and Goldstein is justified because there were no "meaningful"
administrative duties for Canales to perform. Specifically, the General
Counsel contends that "Gon(s)alez admitted that there were
administrative duties available for Canales when he terminated the
detail" and "(n)o definition of 'meaningful administrative duties' was
ever provided(.)" Id. As "the one employee who filed a grievance had
his assignment terminated the day after he filed a grievance even
though( ) there was work to perform(,) and the employee who had no union
activity remained on his detail for 11 days even though there was no
work for him to perform(,)" the General Counsel argues that "there was
disparate treatment and no reasonable basis for it(.)" Id. at 14, 15.
Moreover, because there is no reasonable basis for the disparate
treatment, the General Counsel maintains that "it leads directly to the
conclusion that the disparity was based on (Canales') union activity."
Id. at 15.
Finally, the General Counsel argues that the Judge failed to view
"the totality of the circumstances and evidence(.)" Id. (emphasis
omitted). In this regard, the General Counsel contends that while the
Judge "noted that there was validity to each element of proof submitted
by the General Counsel," specifically, the timing, the animus, and the
disparate treatment, the Judge improperly "discounted each one by noting
that standing alone each was insufficient." Id. at 16.
V. Analysis and Conclusions
We disagree with the Judge's conclusion that the General Counsel
failed to establish that the Respondent's decision to terminate Canales'
administrative duties assignment was motivated by his union activity.
We find that Canales' filing of a grievance on July 23, 1987 was a
motivating factor in Gonsalez's decision to terminate Canales'
administrative duties assignment and, therefore, that the General
Counsel established a prima facie case of discrimination. Further, we
conclude that the Respondent's asserted reason for its action was
pretextual and that the Respondent did not demonstrate that there was an
additional, legitimate justification for its action. Accordingly, we
find that the Respondent violated section 7116(a)(1) and (2) of the
Statute.
A. The Authority's Decision in Letterkenny
During the pendency of this case, the Authority issued its decision
in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). In that
case, we reaffirmed that:
In all cases of alleged discrimination, whether "pretext" or
"mixed motive," the General Counsel must establish that: (1) the
employee against whom the alleged discriminatory action was taken
was engaged in protected activity; and (2) such activity was a
motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion, or other conditions of
employment.
Letterkenny, 35 FLRA at 118.
If the General Counsel makes the required prima facie showing, a
respondent may seek to rebut that showing by establishing, by a
preponderance of the evidence, the affirmative defense that: (1) there
was a legitimate justification for its action; and (2) the same action
would have been taken in the absence of protected activity. Id. at
122-23. This analysis, we noted, is consistent with the framework
applied in the private sector by the National Labor Relations Board.
Letterkenny, 35 FLRA at 122.
B. Application of Letterkenny in this Case
As noted by the Judge, Canales was engaged in union activity when he
filed a grievance on July 23, 1987, and the Respondent was aware of that
activity. However, the parties dispute whether Canales' union activity
was a motivating factor in the Respondent's decision to terminate
Canales' administrative duties assignment. Based on the evidence of
union animus and the timing of the termination, we find that Canales'
union activity was a motivating factor in the Respondent's decision to
terminate Canales' administrative duties assignment.
Contrary to the Judge, we agree with the General Counsel that the
record reveals evidence of union animus on the part of Gonsalez. For
the following reasons, we conclude that Gonsalez displayed behavior
clearly indicating animus toward: (1) the Union in general; (2)
Canales as a union representative; and (3) the particular grievance
filed by Canales just prior to the termination of his administrative
duties assignment.
The Judge noted that Gonsalez made "a few comments . . . concerning
the Union(.)" Judge's Decision at 9. These comments include referring
to the Union's newsletter as "toilet paper" and threatening to prevent
employee Rey from trading shifts following two meetings where Rey was
the union representative. Tr. at 37, 57-59. These comments indicate
hostility toward the Union and its representatives. While these events
occurred approximately 3 years before the current dispute, when viewed
in conjunction with other evidence of animus toward the Union, they are
nonetheless of significant probative value.
For instance, in the latter part of 1986, Gonsalez approached Rey and
questioned him about Canales' union activity. Particularly, Gonsalez
asked whether Rey was aware of the grievances Canales had filed, whether
Canales kept the employees informed, and whether he was representing the
employees. Judge's Decision at 4. Gonsalez then suggested that Rey
"run against Canales in the next election of a union representative."
Id. In our view, such an attempt by the Respondent to interfere in the
Union's affairs and to rid itself of Canales indicates animus.
Moreover, record evidence shows that the conflict between Gonsalez and
Canales was recognized by the Agency. In June 1987, shortly before
Canales requested administrative duties, Gonsalez's superiors at the
regional office cautioned Gonsalez about getting involved in counseling
Canales about his performance in order to "avoid (the) appearance of
retribution for past conflicts(.)" Id. Finally, the Judge noted that
when Canales presented Gonsalez with a grievance on July 23, 1987,
Gonsalez remarked that "it was a nit-picky and mickey mouse grievance."
Id. at 7.
Based on the evidence noted above, we find that Gonsalez expressed
animus toward the Union and toward Canales as a union representative.
Accordingly, we reject the Judge's finding that "the animus exhibited by
Gonsalez was directed toward Canales as an individual and not based on
his status as union representative." Id. at 10. Accordingly, we
disagree with his conclusion that the General Counsel failed to
establish union animus on the part of Gonsalez. Id. at 9.
We also find, contrary to the Judge, that the timing of Gonsalez's
action is significant. Despite the fact that Gonsalez believed from the
beginning that there were no meaningful administrative duties for
Canales to perform, he agreed to assign Canales administrative duties.
Once Gonsalez assigned Canales administrative duties, he did not act to
remove Canales from that assignment until just after Canales filed the
grievance. Therefore, the fact that Canales' administrative duties
assignment was terminated immediately after he filed a grievance
strongly suggests an improper motivation on the part of Gonsalez. See
U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station
Alameda, Alameda, California, 38 FLRA 567, 568 (1990) and Department of
the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35
FLRA 891, 900 (1990), where the Authority noted the significance of the
timing of management actions in determining whether the agencies had
discriminated against the employees within the meaning of section
7116(a)(2) of the Statute.
In view of Gonsalez's prior anti-union statements, as well as the
timing of the termination and the fact that Gonsalez made disparaging
remarks about the grievance that Canales filed on July 23, we find that
Canales' union activity was a motivating factor in Gonsalez's decision
to terminate his administrative duties assignment. Therefore,
consistent with Letterkenny, we find that the General Counsel
established a prima facie case of discrimination. See Pension Benefit
Guaranty Corporation, 39 FLRA No. 80 (1991).
Having found that the General Counsel established a prima facie case,
we must determine whether the Respondent has established by a
preponderance of the evidence that: (1) there was a legitimate
justification for its action; and (2) the same action would have been
taken in the absence of protected activity. Letterkenny, 35 FLRA at
122-23.
The Respondent argued before the Judge that the managers had assigned
Canales "a period of administrative duties as a gesture of goodwill" and
that the managers met "on July 23 and determined that no meaningful
justification existed to continue the assignment." Respondent's
Post-Hearing Brief at 2. We construe the Respondent's argument as a
contention that there was a legitimate justification for its action
because its decision to terminate Canales' assignment was made before
the grievance was filed.
We reject the claim that the decision to take Canales off
administrative duties was made before the grievance was filed. In this
regard, we note that it is undisputed that the grievance was filed on
July 23. Supervisor Hendrickson testified that on July 24, he and the
other supervisors discussed for the first time taking Canales off
administrative duties. Tr. at 169-70, 185. Moreover, Gonsalez
testified that on "approximately" July 22 he determined that there were
no meaningful administrative duties for Canales to perform. Tr. at 147.
Finally, it is undisputed that the decision to take Canales off
administrative duties was communicated to Canales for the first time on
July 24. In these circumstances, we find that the Respondent did not
demonstrate that its decision to terminate Canales' assignment was made
before the grievance was filed.
Further, we note the General Counsel's argument that Canales had been
subjected to disparate treatment. In this regard, we note that it is
undisputed that no employee had previously been removed from an
administrative duties assignment due to a lack of "meaningful" work.
Judge's Decision at 11. Both supervisor Hendrickson and employee
Goldstein testified that Goldstein was assigned to administrative duties
for a month, even though there was not sufficient administrative work
for him to do. Tr. at 73-74, 179. Moreover, Gonsalez testified that
administrative duties are always available for his staff and have been
"made available" for other medically disqualified employees such as
Goldstein. Tr. at 135-37. However, such duties were not made available
for Canales. Accordingly, we find that the record clearly indicates
that Canales was treated differently from another similarly situated
employee. Therefore, we disagree with the Judge's conclusion that there
was no disparate treatment in this case and find that the Respondent's
asserted reason for terminating Canales' assignment was pretextual.
As the Respondent failed to establish that there was an additional,
legitimate (nonpretextual) justification for its action, we find that
the Respondent violated section 7116(a)(1) and (2) of the Statute. See
Letterkenny, 35 FLRA at 120. Having found that the Respondent's only
asserted reason for its action was pretextual, we need not address
whether the Respondent would have taken the same action in the absence
of the protected activity. Letterkenny, 35 FLRA at 120.
For the foregoing reasons, we find that the Respondent violated
section 7116(a)(1) and (2) of the Statute.
C. Remedy
Sections 7105(g) and 7118 of the Statute vest the Authority with
broad remedial powers to correct violations of the Statute. See
generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C.
Cir. 1990) (en banc). Such remedial powers have been exercised, in
appropriate circumstances, by ordering that an employee be made whole by
granting the employee annual leave for the days the employee was
wrongfully charged for leave without pay or absence without leave, or
restoring to employees annual leave lost based on a unilateral change in
the leave policy. See U.S. Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, 37 FLRA 161, 176
(1990); and Marine Corps Logistics Base, Barstow, California, 33 FLRA
196, 204 (1988).
In addition to providing for a cease and desist order, we find that
in this case the purposes and policies of the Statute will most
appropriately be effectuated by ordering the Respondent to restore to
employee Enrique Canales the 3 days of sick leave he was required to use
after his administrative duties assignment was improperly terminated on
July 24, 1987.
VI. 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 United States Department of Transportation, Federal
Aviation Administration, El Paso, Texas shall:
1. Cease and desist from:
(a) Terminating the administrative duties assignment of, or
otherwise discriminating against, Enrique Canales, or any other
employee, because the employee engaged in activities protected by
the Statute.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Restore to Enrique Canales the 3 days of sick leave he was
required to use after his administrative duties assignment was
terminated on July 24, 1987.
(b) Post at its facility, Federal Aviation Administration, El
Paso, Texas, copies of the attached Notice on forms furnished by
the Authority. Upon receipt of the forms, they shall be signed by
the Regional Director of the Federal Aviation Administration, El
Paso, Texas, 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
the Notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.20 of the Authority's Rules and
Regulations, notify the Regional Director, Dallas 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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT terminate the administrative duties assignment of, or
otherwise discriminate against, Enrique Canales, or any other employee,
because the employee engaged in activites protected by the Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL restore to Enrique Canales the 3 days of sick leave he was
required to use after his administrative duties assignment was
terminated on July 24, 1987.
(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, Dallas Region, Federal Labor Relations Authority, whose
address is: 525 Griffin Street, Suite 926, LB107, Dallas, Texas 75202
and whose telephone number is: (214) 767-4996.
Case No. 6-CA-80122
UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, EL PASO, TEXAS
Respondent
and
ENRIQUE CANALES
Charging Party
Joe V. Wade, Esq. For the Respondent
Christopher J. Ivits, Esq. For the General Counsel
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on May 31, 1988
by the Regional Director, Federal Labor Relations Authority, Region VI,
a hearing was held before the undersigned on October 18, 1988 at El
Paso, Texas.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a first amended charge filed on April 27, 1988 by Enrique M.
Canales, an Individual, (herein called Canales or the Charging Party)
against United States Department of Transportation, Federal Aviation
Administration, El Paso, Texas (herein called the Respondent).
The Complaint alleged, in substance, that since on or about July 23,
1987 Respondent discriminated against Canales by terminating his
administrative duties assignment because he filed a grievance on behalf
of the National Association of Air Traffic Specialists, the exclusive
representative of Respondent's Traffic Control Specialists, in violation
of section 7116(a)(1) and (2) of the Statute.
Respondent's Answer, dated June 28, 1988, denied the alleged act of
discriminations as well as the commission of any unfair labor practices.
Both parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed with the undersigned which
have been duly considered.
Upon the entire record 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:
Findings of Fact
1. At all times material herein the National Association of Air
Traffic Specialists (herein called the Union) has been, and still is,
the exclusive bargaining representative of Respondent's Traffic Control
Specialists at El Paso, Texas.
2. At all times material herein the Respondent and the Union have
been parties to a collective bargaining agreement in respect to terms
and conditions of employment governing the employees in the aforesaid
unit.
3. Canales has been an air traffic control specialist with the
Federal Aviation Administration for about 12-13 years. He has spent
eight years in this position at the El Paso Flight Service Station, and
has acted as steward or union representative for about four or five
years. In his position Canales controls and maintains flight services,
briefs pilots on the weather as well as inbound and outbound flight
plans. The air traffic control specialist performs critical duties
which are performed with the pilots. Noncritical duties deal with
inbound and outbound flight plans.
4. Respondent maintains an administrative staff of five employees.
These individuals perform administrative duties which involve keeping up
the manuals, maintaining facility orders and letters of agreement,
keeping supply cabinets up to date, and performing some training. /1/
For the most part, these duties are concerned with paper work.
5. Record facts show that if a traffic control specialist reports he
is not feeling well and prefers not to work in a control position
(in-flight or fore-flight), management may permit the individual to
perform non-critical duties: flight data (keeping an eye on traffic and
flight plans) and data communications (receiving and transmitting flight
plans). If an employee has been medically disqualified for his control
tasks, or on prohibitive medicine, he is not usually permitted to
perform flight data or data communication duties.
6. A friendly relationship between Canales and Carla Gonsalez
commenced in 1978. At that time Gonsalez was manager of the Las Vegas
Flight Service Station and Canales transferred there. The two
individuals socialized together and were close friends. Thereafter both
of them went to Highlines University to present a program to about 20
pilots which involved an explanation of weather charts. Canales asked
Gonsalez if the latter would give him a special achievement award for
this program. Gonsalez said he couldn't because a minimum of six months
of activity was required. Gonsalez testified he did ask the airport
manager to give Canales a letter of commendation but it was never done.
Thereafter their relationship cooled. /2/
7. In 1981 Gonsalez became manager of the El Paso Station and later
on Canales tranferred to that station. While Canales was a Union
representative, and prior to June 1987, he filed three grievances. Four
grievances were filed by him subsequently.
8. Alfonso Rey, an air traffic control specialist at the El Paso
Station, testified to a conversation in November 1986 wherein Gonsalez
discussed Canales' union activity. Based on said testimony, the manager
asked Rey what Canales "was up to;" whether Rey was aware of the
grievances Canales had been filing; did Canales keep the people
informed and represent them; and suggested that Rey should run against
Canales in the next election of a union representative.
9. In early June the Respondent's regional office conducted an
evaluation of its El Paso facility. Included in the report (Resp.
Exhibit 1), dated June 25, /3/ is a reference to Canales' performance,
which reads as follows:
Enrique M. Canales' performance -- Consensus is that he is not
pulling his load. Most FPL's chagrined by his laziness and using
the telephone for personal business. Get area supervisors to
monitor closely and correct as needed on the spot. Most feel it
is prevalent when no supervision around. If FPL's see that
supervisors are willing to correct his problems while they are
there, they will put pressure on him to perform while they are
not. To avoid appearance of retribution for past conflicts,
Carlos must avoid any involvement unless it is initiated by the
area supervisors.
10. Gonsalez discussed the performance of Canales with the two
supervisors, Carl Hendrickson and Dino Baca. In order to improve the
employee's attitude and peformance, Hendrickson was assigned to counsel
Canales. He set up a meeting with the employee June 25, but Canales was
on sick leave.
11. Record facts reveal that when an employee is medically
disqualified, a form is prepared which is signed by the regional flight
surgeon. Although the individual is not in condition to perform his
regular work, he may be assigned to lesser duties such as flight data
and data communicatin tasks. The employee could be on medication which
cause drowsiness and still be given administrative duties to perform.
12. In 1981 Alfonso Rey, an air traffic control specialist, had
bronchitis and was given disqualifying medication which caused
drowsiness. He was assigned flight data and data communication duties.
In 1983 Rey had a muscle spasm. He was put on a muscle relaxer and pain
pills, and the same duties were assigned him no medical decertification
was given him, although such is given an employee who is on restrictive
medication.
In 1985 Bobbie Flowers, air traffic control specialist, was taken off
her critical duties since she did not pass an eye examination and needed
glasses. Flowers was assigned to flight data and data communication
duties. She never received a medical disposition form.
13. The record further reflects that on June 10, 1988 Air Traffic
Control Specialist Jefferson Goldstein became ill with a heart disorder.
He was on medication to regulate his heart beat. Since Goldstein was
not able to perform his floor duties he was assigned to administrative
duties for a month. The employee did receive a temporary medically
disqualified certification and his doctor approved part time duties.
Gonsalez spoke to the doctor who stated he wanted to evaluate
Goldstein and the employee could be given whatever tasks he could
handle. The manager also spoke to Dr. Moore, flight surgeon, who said
that Goldstein should be kept off the operations floor and assign him to
part time administrative duties. Soon thereafter Goldstein was
medically cleared.
14. Canales, who became ill with a stomach infection, was out on
sick leave June 25 through June 29 and on July 2, 3, 5 and 6. Dr.
Anthony Ziegler, Jr., Regional Flight Surgeon, issued a "Medical
Disposition" on July 6 in which he commented re Canales as follows:
Person on sick leave past 13 days due to serious stomach and other
medical illnesses that is required to take six (6) various kinds
of medications that may be prohibitive singly or in combination.
In this report Dr. Ziegler certified that Canales was declared:
"Temporarily Medically Disqualified"; "Any Type Administrative Duties
Recommended"; "Must Be Rechecked By Medical Department Before Being
Released For Full Duty."
15. Record facts show that while on sick leave Canales called in and
gave his supervisor a list of the medications taken in connection with
his illness. There were six medications and the list was given to
Gonsalez. The latter then called Dr. Ziegler and spoke to his
assistant, Dr. Moore, re the effect of those medications. Gonsalez was
advised that one of the medications was prohibitive since it caused
drowsiness. While you could work if the medicine was taken every eight
hours, Canales was taking it every two hours.
16. Under date of July 7 Gonsalez wrote Canales reciting that Dr.
Ziegler had medically disqualified him for air traffic control
specialist duties to the medication prescribed for him. Further, that a
medical summary with specified data was to be sent to Ziegler from
Canales' doctor, /4/ and that the employee was not to return to duty
until agreed to by Ziegler.
17. On July 9 Canales reported to Gonsalez' office and gave him the
note from Dr. Blesius. At that time Canales asked to be given
administrative duties as allowed by the doctor. Gonsalez stated that
Canales was to be on sick leave. When the employee asked why he was to
be on such leave, Gonsalez told him to call Dr. Ziegler and to leave the
office. Canales did call the doctor who advised that the employee could
perform administrative duties. He then told this to Hendrickson who
said he saw no problem. Upon leaving his supervisor's office, Canales
met Gonsalez and he informed the manager that Dr. Ziegler recommended
administrative duties for the employee. Gonsalez stated that Canales
would be on sick leave; that there was no administrative work for him
to do.
18. On July 10 supervisors Hendrickson and Baca approached Gonsalez
and asked him to approve administrative duties for Canales. They said
that human relations would be enhanced and the supervisors would make up
work for Canales to do. Gonsalez testified that there were no extra
duties for Canales to perform, but he consented to the supervisors'
request. He sent a memo to Canales, dated July 10, assigning him to
administrative duties pending resolution of his medical status,
effective July 13. Further, Gonsalez stated that the assignment was
"contingent on the availability of meaningful administrative work and
may be terminated for lack thereof."
19. Hendrickson told Canales that his administrative time was
approved, that he would be posted for two week and then the situation
would be evaluated to decide if there were meaningful duties left for
him to do. The supervisor testified that he did not assign Canales any
duties involving flight data and data communications because Dr.
Ziegler said not to do so.
20. Record facts show that during the second week that Canales was
on administrative duties Gonsalez noticed that Canales was frequently
away from his station and wandering around. He spoke to the supervisors
who said they would take care of it. Hendrickson testified that there
were ongoing discussions with Gonsalez regarding the fact that there was
not enough meaningful administrative duties for Canales to perform. On
Wednesday, July 22 Gonsalez spoke to Baca and they concurred there was
nothing much for Canales to do. The manager concluded on approximately
that date that Canales should be taken off administrative duties.
21. On July 23 Canales filed a grievance concerning the removal of a
desk in the working area and replacement by an unsatisfactory one. He
gave it to Gonsalez who remarked it was a nit-picky and mickey-mouse
grievance.
22. On July 24 Gonsalez prepared a memo which was addressed, and
given, to Canales. It recited that Gonsalez had determined there no
longer existed enough meaningful administrative work to justify the
continued assignment to Canales of administrative duties. Further, the
assignment was terminated at the end of Canales' shift on July 24, and
the employee could use his sick leave until the Flight Surgeon restores
his medical certification.
23. Canales remained on sick leave for three days. On July 28 he
reported to the Flight Station and spoke to Hendrickson. He told the
supervisor that the no longer was taking medication and would like to be
put back on his traffic control duties. After checking with the doctors
treating the employee, Hendrickson restored Canales to his regular
traffic control schedule effective July 28.
Conclusions
The issue for determination herein is whether Respondent removed
Canales from administrative duties because he filed a grievance on
behalf of another employee, thereby requiring Canales to take three days
sick leave before resuming his regular tasks as an air traffic control
specialist.
General Counsel contends that Respondent terminated the employee's
administrative duties on July 24 because he filed a grievance the
preceding day. It is maintained that the reasons advanced by management
for taking such action were pretextual in nature; that union animus
existed on the part of Gonsalez; and that the timing of the termination
reveals the discriminatory motivation for such action taken by
Respondent toward Canales.
In order to establish that an employer has discriminated against an
employee in violation of section 7116(a)(1) and (2) of the Statute, the
General Counsel must make a prima facie showing of such discrimination.
To do so it must be shown that an employee was engaged in protected
activity known to the employer, and that said conduct was a motivating
factor in an agency's decision which adversely affected the employee.
U.S. Department of the Treasury, Internal Revenue Service, et. al., 30
FLRA 1013; Internal Revenue Service, Washington, D.C., 6 FLRA 96. /5/
No question arises with respect to the fact that Canales was engaged
in protected activity when he filed a grievance concerning the removal
of a desk and its replacement by another one. Neither can it be
disputed that Respondent had knowledge of such activity since the
grievance was submitted to Manager Gonsalez. Contrariwise, a sharp
dispute exists as to whether the action taken by management toward
Canales was motivated by union animus so as to constitute
discrimination.
General Counsel properly asserts that case law supports the view that
discriminatory motivation may be inferred from circumstantial evidence.
In this regard, it is further argued that timing may be indicative of
such illegal motivation. since the grievance was filed on July 23 and
the removal of Canales from administrative duties occurred the following
day, it is insisted that this sequence warrants such adverse inference.
It is true that timing may be a factor which justifies inferring
discrimination. However, it must be considered along with other facts
which bear on union animus, if any, as well as the reasonableness of the
grounds for management's conduct. See the discussion by Judge John H.
Fenton in his decision adopted by the Authority in Department of the Air
Force et. al., 33 FLRA 352, at pages 372-373.
At first blink it may be viewed with suspicion that the removal of
Canales from administrative duties followed the day after the grievance
was filed. Thus, the formal notification from Gonsalez to Canales was
written on July 24 while the grievance was filed on July 23. While it
may be concluded that the decision to take this action was made on July
24, record facts show these were ongoing discussion between supervisor
Hendrickson and Gonsalez that there were not enough meaningful duties
for Canales to perform. Moreover, on July 22 Gonsalez spoke to
supervisor Baca at which time they also came to the same conclusion, and
Gonsalez testified he decided then to take Canales off administrative
duties. These facts militate against considering the time sequence as
string support for raising an inference of illegal motivation. Unless
other circumstances prevail which justify inferring discriminatory
action by Respondent, I would not conclude that the timing herein
warrants imputing an illegal motive herein.
It is maintained by General Counsel that record testimony reveals a
clear anti-union attitude by Gonsalez. Further, that this was directed
toward Canales and is responsible for the action taken against the
employee on July 24, 1987.
The record does disclose that for several years prior to 1987 a very
unfriendly relationship existed between Canales and Gonsalez. It
started apparently when the latter balked at recommending the employee
for a specialist award. Each individual claimed that he was being
harassed by the other. Moreover, Gonsalez even suggested in November
1986 that another employee, Alfonso Rey, run against Canales for union
representative.
Despite this background and a few comments made by Gonsalez
concerning the Union, I am unable to conclude that the manager evinced
such pronounced anti-unionism so as to warrant the inference that it
formed the basis for his action on July 24. Record facts show that
Canales filed at least seven grievances, and three were filed before
July 1987. While Gonsalez did question Rey in 1986 whether the latter
was aware of grievances filed by Canales, there is no showing that the
manager confronted Canales in regard to any grievances he filed in the
past. /6/ No other issue was raised re Canales' activities as a union
representative, and no incident occurred with respect to the seven
grievances filed during his years as such representative. The record,
it would appear, is supportive of the conclusion that the animus
exhibited by Gonsalez was directed toward Canales as an individual and
not based on his status as union representative. The hostility between
these two persons prevailed for several years since Canales did not
receive the requested award, and pervades their day to day relationship.
Under these circumstances, and in the absence of any other evidence
that demonstrates Union opposition or objection, I conclude that General
Counsel has not established union animus upon which to base a finding of
discriminatory action by Respondent.
It is true, as asserted by General Counsel, that disparate treatment
of an employee may be a significant determinant in finding that such
individual was discriminated against by an employer. In the instant
case it is argued that both Rey and Flowers, although unable to perform
critical duties, were allowed to perform flight data and communication
data duties. Further, that even though Canales was on medication which
made him drowsy, he performed such duties. Moreover, Goldstein
continued to perform administrative duties even though there was
insufficient work for him to do.
The disparate treatment alluded to by the General Counsel does not,
in my opinion, warrant an inference that it was discriminatorily
motivated. The illnesses befalling Rey and Flowers were not of the same
serious nature as that suffered by Canales. In 1981 Rey was ill with
bronchitis and in 1983 he was afflicted with a muscle spasm. While he
took medicine in 1981 which produced drowsiness, the record indicates
that Canales was taking six medications which, as Dr. Ziegler stated,
may be prohibitive. No particular problem seemed apparent in assigning
Rey and Flowers to flight data duties. However, the medical illnesses
of Canales, which were deemed serious by Dr. Ziegler and involved taking
prohibitive medications, may well justify not assigning such duties to
Canales. Furthermore, Dr. Ziegler advised supervisor Hendrickson that
Canales should not be assigned duties which concerned flight data and
data communications.
General Counsel stresses the fact that while Gonsalez purportedly
terminated Canales' administrative duties for lack of meaningful work,
employee Goldstein and others continued with such duties despite
insufficient work being available for them. However, it is noted that
supervisor Hendrickson testified there were no meaningful duties for
Canales to perform when the latter was given administrative duties on
July 10. Nevertheless he and Supervisor Baca persuaded Gonsalez to
assign those duties to Canales "for human relations purposes." Thus, the
employee was given administrative duties "contingent on the availability
of meaningful administrative work and may be terminated for lack
thereof." The record also reflects that there were ongoing discussions
which Gonsalez had with the supervisors as to the fact that Canales had
little work to do. Although it is true that management did not
terminate administrative duties of other air traffic control
specialists, to therefore foreclose Respondent from ever doing so when
no meaningful work is available for another employee would be
unreasonable. Since there is a regular group which handles these
duties, one could well anticipate that an employee assigned such work
would not continue to perform these duties for an extended time.
In sum, I conclude that discontinuing Canales' administrative duties
on July 24, 1987 and thereby compelling the employee to take three days
sick leave before he resumed his regular position as an air traffic
control specialist was not due to his filing a grievance on July 23,
1987, and was not discriminatory within the meaning of section 7116(a)(
2) of the Statute.
It is recommended that the Authority issue the following Order:
ORDER
The Complaint in Case No. 6-CA-80122 is DISMISSED. Issued,
Washington, D.C., August 15, 1989
WILLIAM NAIMARK
Administrative Law Judge
FOOTNOTES
(1) Record testimony reflects that training is not designated as an
administrative duty if an employee is deemed to have impaired judgement.
(2) The record also reflects reciprocal hostility on the part of
Canales toward Gonsalez. Thus, after Canales was denied an award he
told the supervisor that, after the latter's accident, it would have
been better if he had been killed. Further, that "things are going to
get bad" in the future.
(3) Unless otherwise indicated, all dates hereinafter mentioned occur
in 1987.
(4) Dr. Cornelius K. Blesius wrote a note dated July 8 that Canales
had "duodenitis."
(5) Once this is established, the agency is required to show by a
preponderance of the evidence that it would have reached the same
decision as the adverse action in the absence of the protected activity.
(6) His reference to the July 22 grievance as "nit-picky" in nature
may reflect annoyance on the past of Gonsalez but does not, in my
opinion, give rise to a finding of intense opposition or hostility to
the practice.
39 FLRA 1537
39 FLRA NO. 135
NFFE, Local 284 and Dept. of Defense, Naval Air Engineering Center,
Lakehurst, New Jersey, Case No. 0-NG-1873 (39 FLRA No. 82) (Decided
March 28, 1991)
SUBJECT MATTER INDEX ENTRIES
REQUEST FOR RECONSIDERATION
TIMELINESS OF NEGOTIABILITY DETERMINATION
AGENCY HEAD DISAPPROVAL
SUBSEQUENT NEGOTIATIONS
SUBSTANTIALLY SIMILAR PROPOSALS
DIGEST NOTES
The Union seeks reconsideration of the Authority's dismissal of its
September 28, 1990 appeal as untimely in a circumstance where the Agency
head had disapproved a substantially similar provision on June 27, 1990.
The Union argued that extraordinary circumstances warranting
reconsideration were presented by the fact that local management
initiated further discussion on the issue covered by the provision after
the initial disapproval and by virtue of the fact that a September 14,
1990 proposal is substantially changed from the provision initially
disapproved.
The Authority denied the request for reconsideration. As to the
first Union argument, the Authority stated that the fact that the
parties discussed the matter between the initial allegation of
nonnegotiability and the subsequent allegation does not affect the
timeliness of the appeal of the subsequent allegation. As to the
allegation that the second proposal was different, the Authority
concluded that it was not. The Union's alteration of its subsequent
proposal in response to the Agency's concerns did not affect the nature
of the dispute because the dispositive negotiability issue remained the
same.
Case No. 0-NG-1873 (39 FLRA No. 82 (1991))
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 284
(Union)
and
U.S. DEPARTMENT OF DEFENSE NAVAL AIR ENGINEERING CENTER LAKEHURST,
NEW JERSEY
(Agency)
ORDER DENYING REQUEST FOR RECONSIDERATION
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on the Union's request for
reconsideration of the Authority's Order in 39 FLRA No. 82. 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 the order, we will deny the request.
II. The Order in 39 FLRA No. 82
In 39 FLRA No. 82, the Authority dismissed the Union's appeal of a
proposal permitting employees, at Government expense, to make 1 phone
call home upon their arrival at their temporary duty station (TDY) and 1
phone call home when there is a change in their travel orders, if the
calls were for a period not longer than 5 minutes. The Union's petition
for review of the proposal was dated September 28, 1990.
The Agency head had disapproved a substantively similar provision on
June 27, 1990. Because the dispute concerned a proposal that was not
substantively changed from the provision that had been disapproved by
the Agency head under section 7114(c), the Authority found that the
effect of the Union's September 28, 1990, petition was to seek review of
the provision that had been disapproved by the Agency head on June 27,
1990.
The Authority pointed out that section 2424.3 of our Regulations
requires that a negotiability petition must be filed within 15 days
after service on the Union of the Agency's allegation of
nonnegotiability. The Authority noted that if the allegation is served
by mail, 5 days are added to the 15-day filing period.
The Authority determined that a Union appeal of the Agency head's
June 27, 1990, disapproval of the telephone usage provision would have
been due not later than July 17, 1990. However, because the Union's
appeal of the substantively identical proposal was not filed until
September 28, 1990, the Authority found that the petition for review was
untimely and dismissed the appeal.
III. The Union's Request for Reconsideration
The Union contends that there are extraordinary circumstances
warranting reconsideration of the Order in 39 FLRA No. 82. The Union
argues that although the Agency head's disapproval was dated June 27,
1990, local management initiated further discussions on the issue of
telephone usage at Government expense for TDY employees. The Union
asserts that it met and bargained in good faith with management
concerning the issue on several occasions beginning with a July 30,
1990, meeting with management and ending with bargaining on September
13, 1990. Therefore the Union claims that it was either intentionally
misled by the Agency concerning the issue of telephone usage or that the
Agency's position was misrepresented, because the local management
representative did not have the authority to bargain in good faith. The
Union asserts that it "would have welcomed the opportunity to file a
negotiability appeal in June, 1990 if local management had not been
willing to negotiate the issue further." Request for Reconsideration at
1.
The Union also contends that its September 14, 1990, proposal is
substantially changed from the provision disapproved by the Agency head
on June 27, 1990. The Union states that a 5-minute limit on telephone
calls was added to the September 14, 1990, proposal in response to a
concern raised by management regarding the cost of unlimited personal
calls. The Union concludes that the September 14, 1990, proposal is
different from the provision disapproved on June 27, 1990, because it
specifically limits to 5 minutes the length of the phone call that an
employee is permitted to make, thereby restricting the cost of the phone
calls. The Union also asserts that the Agency head disapproval of the
provision did not address negotiability claims but instead was concerned
only with the fact that Agency regulations did not permit such phone
calls.
IV. Analysis and Conclusion
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 the Order
in 39 FLRA No. 82.
As to the Union's contentions regarding discussions with the Agency
on the issue of telephone usage that began on July 30, 1990, after the
time limits for an appeal of the Agency head's June 27, 1990,
disapproval had expired, we note that, where the proposals are
substantively the same, the fact that the parties discussed the matter
between the initial allegation of nonnegotiability and the subsequent
allegation does not affect the untimeliness of the appeal of the
subsequent allegation. See American Federation of Government Employees,
AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718, 722-23 (D.C. Cir. 1987)
(AFGE, Local 2303).
In AFGE, Local 2303, the court affirmed the Authority's dismissal for
untimeliness of a union's negotiability appeal involving a second
proposal that the Authority found was not substantively different from
an earlier proposal. In so doing, the court rejected the union's
argument that the Authority's decision "impedes the give-and-take
necessary for effective collective bargaining." Id. at 723. The court
stated that "(t)he latitude the union seeks in appealing might, as a
practical matter, facilitate bargaining in some instances, but it does
not comport with the scheme Congress established in Section 7117(c) to
ensure speedy resolution of negotiability disputes." Id. See also
American Federation of Government Employees, AFL-CIO, Local 1786 and U.
S. Marine Corps, Marine Corps Development and Education Command,
Quantico, Virginia, 26 FLRA 184 (1987) (Marine Corps Development and
Education Command).
The court's decision in AFGE, Local 2303 addressed a situation in
which the parties were engaged in bargaining, but had not reached any
agreement. In contrast, the case before us involves an agency head's
disapproval under section 7114(c) of the Statute of a locally-negotiated
collective bargaining agreement provision. However, we believe that the
rationale of the court's decision is equally applicable here. As the
court stated: "The procedure governing appeals of nonnegotiability
allegations obviously demands some judgment as to whether serial
proposals are identical or distinct, for otherwise the time limits of
Section 7117(c) would become meaningless." 815 F.2d at 723.
We believe that the purposes of the Statute would not be served by
applying different procedural standards for negotiability appeals
arising from agency-head disapprovals of collective bargaining agreement
provisions from those applied to bargaining proposals. Further, we note
that nothing precludes a union, following an agency head disapproval of
a collective bargaining agreement provision, from filing a timely
negotiability appeal as to that disapproval while at the same time
continuing negotiations in an effort to resolve the matter. If those
further negotiations proved successful, the appeal could then be
withdrawn. On the other hand, if the negotiations were unsuccessful or
did not result in any substantive changes of the parties' positions, the
negotiability dispute could be resolved more expeditiously because it
would already be pending before the Authority. Thus, we do not believe
that our practice either deprives unions of the ability to file timely
negotiability appeals or discourages the give-and-take of the collective
bargaining process.
Where, as here, the later proposal contains only insubstantial
modifications of the earlier proposal, the appeal of the later proposal
constitutes an untimely attempt to seek review of the earlier proposal.
See Marine Corps Development and Education Command, 26 FLRA at 186. See
also AFGE, Local 2303. In this cae, the provision disapproved by the
Agency head on June 27, 1990 required the Agency to pay for personal
phone calls made by employees under the circumstances specified and the
Union's September 14, 1990, proposal required the Agency to pay for
personal phone calls of 5 minutes or less in those same circumstances.
Consequently, the fact that the September 14, 1990, proposal contained a
5-minute limitation for such phone calls, added as a result of
discussions with the Agency, did not change the substance of the
proposal's requirement that personal phone calls be made at Government
expense or affect the timeliness of the appeal. As noted above, where
intervening discussions between the parties do not change the substance
of a proposal previously alleged to be nonnegotiable, a subsequent
appeal of that proposal will be found to be untimely. See id., 815 F.
2d at 723.
The Union indicates that, by adding a 5-minute limitation, it was
responding to the grounds on which the Agency alleged that the proposal
was nonnegotiable. In AFGE, Local 2303, 815 F.2d at 721 n.18, the court
noted that where a union revises a proposal to eliminate the portion
that was in dispute, an allegation by the Agency that the subsequent
proposal was nonnegotiable on the same grounds as the previous proposal
would necessitate further analysis. However, the court also noted that,
where the revision of the proposal did not affect the nature of the
dispute, the Authority could treat a proposal that abridged or
recombined elements of a prior proposal as a resubmission of that prior
proposal.
In this case, the Agency disapproved the provision of the agreement
because the provision was contrary to an Agency regulation that
prohibited the Agency from paying for personal phone calls regardless of
their length. The Union's alteration of its subsequent proposal in
response to the Agency's concerns regarding the costs of personal phone
calls did not affect the nature of the dispute because the dispositive
negotiability issued remained the same: whether the Agency's regulation
precluded negotiations over the proposal. In reaching this conclusion,
we express no opinion as to the merits of the Agency's allegation of
nonnegotiability; we only note that the alteration of the proposal did
not affect the basis on which the Agency alleged the proposal to be
nonnegotiable.
The Union's arguments, therefore, constitute nothing more than
disagreement with, and an attempt to relitigate, the merits of the order
in 39 FLRA No. 82 and do not establish the extraordinary circumstances
necessary for reconsideration. See, for example, U.S. Department of
the Navy, Naval Base, North Island, San Diego, California and
International Association of Fire Fighters, Local F-23, 39 FLRA No. 53
(1991). Accordingly, we will deny the Union's request.
V. Order
The Union's request for reconsideration is denied.
39 FLRA 1532
39 FLRA NO. 134
NTEU, and Dept. of the Treasury, Internal Revenue Service Washington,
D.C., Case No. 0-NG-1847 (Decided March 28, 1991)
STATUTE
7105 (a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
DRUG FREE WORKPLACE PROGRAM
TRAINING OF UNION OFFICIALS
BRIEFING OF EMPLOYEES
DIGEST NOTES
The case concerned the negotiability of two provisions of the parties
Drug-Free Workplace Program Agreement which were disapproved during
agency head review. Provision 1 requires training of Union officials
concerning the Agency's drug testing and related employee assistance
programs; and Provision 2 prescribes briefings for all employees about
the terms of the parties' agreement implementing the drug testing
program. Concluding that the provisions do not interfere with Agency's
right to assign work, the Authority found both provisions to be
negotiable.
Case No. 0-NG-1847
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE WASHINGTON,
D.C.
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 provisions of the parties' "Drug-Free Workplace
Program Agreement," which were disapproved by the Department of the
Treasury during agency head review under section 7114(c) of the Statute.
/1/ For the following reasons we find that both disputed provisions are
negotiable.
II. Provisions 1 and 2
Provision 1
Article 1, Section B
The Service will provide chapter officials and stewards more
comprehensive training and education on the Drug Free Workplace Program
and on the Employee Assistance Program. This training will take place
on official time.
Provision 2
Article 1, Section C
Representatives of both parties at the local level will arrange for
joint briefings, to be conducted on official time, for all employees
regarding the specific terms of the agreement. The date, time and
location of the briefing will be communicated to employees in writing.
Employees will be provided an opportunity to ask questions during this
joint briefing.
A. Positions of the Parties
1. The Agency
The Agency asserts that both provisions are nonnegotiable because
"(a)n assignment of training is an assignment of work." Statement of
Position at 2, 3. The Agency argues, in this regard, that "provisions
requiring management to assign employees to specific types of training
programs are nonnegotiable." Id. at 2.
With regard to Provision 1, the Agency concedes that Executive Order
12564 (the Executive Order) and Federal Personnel Manual (FPM) Letter
792-16 /2/ require that employees receive training in drug testing and
employee assistance. However, the Agency contends that both the
Executive Order and the FPM Letter provide management with discretion as
to the amount and type of training to be furnished. The Agency asserts
that, because Provision 1 mandates "more comprehensive training" for
Union officials and stewards, "it would establish a standard which
management would have to meet or have to justify any deviation from.
Thus, it deprives management of its discretion." Id.
2. The Union
The Union asserts that Provisions 1 and 2 are consistent with the
Executive Order and FPM Letter 792-16 and, because they provide the
Agency with discretion to decide how much and what type of training to
provide, they do not directly interfere with the Agency's right to
assign work. The Union denies that the requirement in Provision 1 to
provide "more comprehensive" training and education to Union officials
and stewards affects the Agency's discretion concerning how much and
what type of training will be provided. The Union contends that the
briefings required by Provision 2, "to the extent that such briefings
may be determined to be training, . . . must be considered training
concerning the terms of the (A)gency's Drug Free Workplace program." Id.
at 5. The Union asserts that the provisions do "not involve training
which relates to the assignment of bargaining unit work." Reply Brief at
3. In the Union's view, the training required by the provisions "is a
labor-management relations issue." Id.
The Union also argues that Provisions 1 and 2 constitute negotiable
appropriate arrangements within the meaning of section 7106(b)(3) of the
Statute. The Union asserts that failure to provide training concerning
drug testing and employee assistance programs could adversely affect
employees because "(f)ailure to understand the possible implications of
illegal drug use on one's personal health and on one's continued federal
employment may subject an employee to a variety of disciplinary or
adverse actions including termination." Id. at 4. The Union asserts
that "the benefits of providing such training and of providing more
comprehensive training to (Union) officials and stewards far outweighs
any possible negative impact on the (A)gency's right to assign work."
Id.
B. Analysis and Conclusions
We conclude that the provisions do no directly interfere with the
Agency's right to assign work.
In American Federation of Government Employees, Local 3407 and U.S.
Department of Defense, Defense Mapping Agency, Hydrographic-Topographic,
Washington, D.C., 39 FLRA No. 45 (1991) (Defense Mapping Agency), the
first two sentences of Proposal 2 required that the agency provide
"classes" for all unit employees subject to drug testing explaining
various aspects of the program. Like the Agency in this case, the agency
in Defense Mapping Agency argued that the disputed proposal directly
interfered with the 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." Slip op. at 4. 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 5.
In Defense Mapping Agency, we found that "matters relating to an
agency's drug testing program unquestionably concern conditions of
employment." Id. at 6-7. Further, we found no basis on which to
conclude that "management's rights under section 7106 of the Statute
include the right to determine the form in which information, which is
otherwise disclosable and negotiable, is to be conveyed to employees."
Id. at 7. Noting that the dispute sentences did no encompass
instruction on employees' duties and responsibilities, we concluded that
"the requirement that the information be conveyed in classes does not
otherwise mandate a conclusion that the proposal directly interferes
with (an agency's) right to assign work." Id. at 8.
Provisions 1 and 2 concern matters relating to the Agency's drug
testing program: Provision 1 requires training of Union officials
concerning the Agency's drug testing and related employee assistance
programs; and Provision 2 prescribes briefings for all employees about
the terms of the parties' negotiated agreement implementing the Agency's
drug testing program. The two provisions, therefore, clearly concern
conditions of employment. Moreover, like the disputed sentences in
Defense Mapping Agency, there is no indication in the record that the
provisions are intended to encompass instruction to employees on facets
of their duties and responsibilities. It is undisputed, in this regard,
that the provisions "(do) not involve training which relates to the
assignment of bargaining unit work." Reply Brief at 3. In addition, it
is clear from the record that, although the provisions refer to
"training," and "education," and "briefings," the provisions require
only that information be conveyed. See Reply Brief at 4 ("(A) federal
government agency has an obligation to inform its employees concerning
the details of its Drug Free Workplace program. Chapter officials and
stewards . . . must receive 'more comprehensive' training concerning the
terms of the program and its ramifications for bargaining unit
employees."). Finally, nothing in the record before us supports a
conclusion that the provisions would require the disclosure of
information in violation of applicable law or regulation.
Based on the foregoing, and consistent with Defense Mapping Agency,
we conclude that Provisions 1 and 2 do not directly interfere with the
Agency's right to assign work. As no other basis for finding the
provisions nonnegotiable is asserted or apparent to us, the provisions
are negotiable. In view of our conclusion, we do not address whether,
or to what extent, the provisions' references to "official time" would,
in other circumstances, affect our decision. Additionally, in light of
our conclusion, we need not address the extent to which all proposals
relating to training, that is, instruction of employees in any facet of
their duties and responsibilities, directly interfere with the right of
an agency to assign work.
III. Order
The Agency head shall rescind the disapproval of Provisions 1 and 2,
which were bargained over and agreed to by the parties at the local
level. /3/
FOOTNOTES
(1) As originally submitted, the Union's petition sought review of
eight provisions of the negotiated agreement. In its statement of
position, the Agency withdrew its disapproval of five provisions:
sections 2, 6, 7, 8, and 10 of the agreement's Preamble. Statement of
Position at 1. The Union, in its reply brief, withdrew its petition for
review concerning Article 4, Section B. Reply Brief at 2. Accordingly,
those provisions will not be considered here.
(2) FPM Letter 792-16, referred to by the parties, was superseded by
FPM Letter 792-19, dated December 27, 1989. As the new issuance
contained no substantive changes bearing on this dispute, in all
instances where the parties cite the prior FPM Letter, we will apply FPM
Letter 792-19.
(3) In finding Provisions 1 and 2 to be negotiable, we make no
judgment as to their merits.
39 FLRA 1500
39 FLRA NO. 133
International Federation of Professional and Technical Engineers,
Local 128 and Dept. of Interior, Bureau of Reclamation, Case No.
0-NG-1633 (Decided March 28, 1991)
STATUTE
7105(a)(2)(D) and (E)
7106(a)(1)
7117(a)(2)
7106(a)(2)(B)
7117(a)(2) and (b)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
DRUG TESTING, RETESTING
INTERNAL SECURITY PRACTICES
VIOLATION OF GOVERNMENT-WIDE RULE OR REGULATION
CONTRACTING OUT
URINALYSIS TEST AS PUNITIVE MEASURE
ADMINISTRATIVE LEAVE FOR TESTING
SAFEGUARDING OF URINE SPECIMENS
AGENCY-WIDE REGULATION
COMPELLING NEED
REHABILITATION PROGRAMS
DIGEST NOTES
The case concerns the negotiability of 12 proposals relating to the
Agency's drug testing program.
Proposal 1 provides that management will delay implementing the drug
testing program until a satisfactory resolution of the negotiations is
reached, including utilization of FMCS/FSIP services. The Authority
found the proposal, which merely restates the Agency's bargaining
obligation under the Statute, to be negotiable. The proposal does not
interfere with the Agency's right to determine its internal security
practices by the implementation of a drug testing program.
Proposal 2 provides that the Bureau submit to the Union all
information concerning the implementation of the process before that
process begins. Noting that the proposal can be interpreted in a way
which would make it a negotiable procedure or to provide the disclosure
of information which would allow the Union to defeat the goal of the
program, thereby interfering with the Agency's right to determine
internal security practices, the Authority dismissed the petition for
review because the Union had not created a record on which a
determination could be made.
Proposal 4 provides that employees operating drug testing equipment
be trained and certified by qualified instructors before any testing is
started. Because the proposal establishes specific qualifications for
laboratory personnel and, thereby, imposes additional standards for
laboratory certification, the Authority concluded that the proposal is
inconsistent with the Mandatory Guidelines for Federal Workplace Drug
Testing, which are Government-wide regulations. Accordingly, the
proposal is nonnegotiable under 7117(a)(1).
Proposal 6 provides that the agency be prohibited from using the
urinalysis test as a punitive measure against an employee. Interpreting
the proposal as prohibiting the Agency from selecting employees for
testing for reasons unrelated to the purpose of the drug testing
program, the Authority found the proposal merely requires the Agency to
exercise its rights under 7106(a)(1) in accordance with law. The
proposal is negotiable as an appropriate arrangement under 7106(b)(3).
Proposal 8 provides that an employee being tested be granted up to
four hours administrative leave to take the drug test. Interpreting the
proposal as requiring the Agency to provide up to 4 hours for an
employee to furnish a urine sample if the employee cannot furnish the
specimen immediately, the Authority concluded that the proposal is
negotiable.
Proposal 10 provides that urine specimens not tested for drugs on the
day collected be frozen and, if and when thawed out, the specimen shows
visual signs of precipitated salts, the specimen will be discarded and a
new sample taken. Because the proposal is inconsistent with the
procedures for refrigeration and freezing samples set forth in the
Guidelines, it is nonnegotiable under section 7117(a)(1).
Proposal 11 provides that the agency be required to perform a second
drug test on a new sample of the same specimen, if a positive result is
obtained in the first test. Proposal 12 provides that the agency be
required to divide in half any specimen that yields a positive reaction
before being sent for a confirming test, with the retained half being
frozen. If the positive test is confirmed, the employee will be allowed
to send the frozen portion to a laboratory of his/her choosing at the
agency's expense for retesting. Because it could not be determined from
the record who would receive the results of the second tests or whether
those results would be reported to some individual other than the MRO to
enable that individual to assess the medical significance of the
results, the Authority concluded that the record is insufficient to
determine the negotiability of the proposals 11 and 12.
Proposal 13 provides that a reasonable accomodation be made for an
employee who fails a drug test, i.e., be given access to rehabilitation
programs, instead of being fired. Noting that while, by its terms, the
proposal seeks to ameliorate the adverse effects on employees of the
exercise of management's rights, it is not a negotiable appropriate
arrangement because it excessively interferes with management's right to
discipline employees. Moreover, to the extent that the proposal would
prevent the Agency from removing an employee who is determined for the
second time to use illegal drugs, the proposal is inconsistent with law
and Government-wide regulations.
Proposal 14 provides that a second urinalysis be given only after the
employee has been in a rehabilitation program for a reasonable time
period of at least 60 days. Noting that proposals which prescribe
substantive criteria governing the exercise of management's right to
determine its internal security practices directly interfere with that
right, the Authority concluded that this proposal which restricts
management's ability to administer another random test directly
interferes with the right to determine internal security practices.
Proposal 15 provides that any employee who has been in a drug
treatment program, and then tests positive for illegal drugs, be allowed
to re-enter a second time instead of being removed from the service.
The Authority found that the proposal is inconsistent with Executive
Order 12564 and FPM Letter 792-19 and is therefore nonnegotiable under
7117(a)(1).
Proposal 16 provides that any employee tested, with the results
showing a negative result, will not be required to undergo another test
for at least one year, minimum. The Authority found that the proposal
directly interfered with management's right to determine internal
security practices.
Case No. 0-NG-1633
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS
LOCAL 128
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the
negotiability of 12 proposals. /1/
We find that Proposal 1, which delays the implementation of the
Agency's drug testing program until negotiations are completed, is
negotiable because it merely restates the Agency's bargaining obligation
under the Statute.
Proposal 2 requires the Agency to provide certain information
concerning its drug testing program. The scope of the Agency's
continuing obligation to provide information to the Union under Proposal
2 is not clear. Because the record is not sufficient for us to make a
negotiability determination, the petition for review as to Proposal 2 is
dismissed.
Proposal 4 would limit the operation of drug testing equipment to
employees who have been trained and certified by qualified instructors
before testing is started. Proposal 4 is inconsistent with the final
Mandatory Guidelines for Federal Workplace Drug Testing (final
Guidelines), 53 Fed. Reg. 11970-89, which are Government-wide
regulations. Therefore, Proposal 4 is nonnegotiable under section
7117(a)(1) of the Statute.
Proposal 6 prohibits the Agency from using the urinalysis test as a
punitive measure against an employee. The Agency has not demonstrated
that Proposal 6 is inconsistent with any law, rule, or regulation so as
to render it nonnegotiable under the Statute. Accordingly, we find that
Proposal 6 is negotiable.
Proposal 8 requires the Agency to provide up to 4 hours of
administrative leave for an employee to take a drug test. The Agency
has not demonstrated that Proposal 8 is inconsistent with any law, rule,
or regulation so as to render it nonnegotiable under the Statute.
Therefore, we find that Proposal 8 is negotiable.
Proposal 10 provides that urine samples that are not tested on the
day that they are collected will be frozen. The proposal also states
that if, after thawing, the samples show signs of precipitated salts,
the specimens will be discarded and new samples taken. We find that the
proposal is inconsistent with sections 2.4(c) and (i) of the final
Guidelines, which are Government-wide regulations and, therefore,
Proposal 10 is nonnegotiable under section 7117(a)(1) of the Statute.
Proposals 11 and 12 provide that a second drug test will be performed
automatically if the first drug test result is positive. We find that
the record is not sufficient for us to make a negotiability
determination as to these proposals and, therefore, we will dismiss the
Union's petition for review as to Proposals 11 and 12.
Proposal 13 would require the Agency, instead of firing an employee
who is found to use illegal drugs, to offer that employee access to a
rehabilitation program. To the extent that Proposal 13 would preclude
the Agency from initiating an adverse action against an employee, that
is, removal, upon a first confirmed positive drug test, we find that it
directly and excessively interferes with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute and is
nonnegotiable. To the extent that Proposal 13 would preclude removal of
an employee upon a second confirmed positive drug test, we find that the
proposal is inconsistent with Exec. Order No. 12564 and the FPM Letter
and nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 14 precludes the Agency, for a period of at least 60 days,
from giving a urinalysis test to an employee who is in a rehabilitation
program. Although Proposal 14 is not contrary to law or Government
regulation, it is nonnegotiable because it directly interferes with
management's right under 7106(a)(1) of the Statute to determine its
internal security practices.
Proposal 15 precludes the Agency from initiating action to remove an
employee who has tested positive for illegal drug use a second time
without allowing the employee a second chance at rehabilitation.
Proposal 15 is inconsistent with Exec. Order No. 12564 and FPM Letter
792-19 and, therefore, is nonnegotiable under section 7117(a)(1) of the
Statute.
Proposal 16 prohibits the Agency from testing an employee who has
tested negative for the use of illegal drugs for at least a year after
the date of the negative test result. Proposal 16 is nonnegotiable
because it directly interferes with management's right under section
7106(a)(1) of the Statute to determine its internal security practices.
II. Procedural Matters
The Union filed its petition for review in this case on December 13,
1988. The Union also filed concurrent unfair labor practice charges on
the same issues. On March 10, 1989, processing of this negotiability
appeal was suspended based on the Union's election under 5 C.F.R.
Section 2424.6 to proceed under the Authority's unfair labor practice
procedure. The unfair labor practice charges were later withdrawn (Case
Nos. 7-CA-90170-1 and 7-CA-90170-2) and the Authority resumed processing
of the Union's petition for review on November 7, 1989.
On December 22, 1989, the Union was granted an opportunity to correct
deficiencies in its petition for review. The Union corrected the
deficiencies in the petition for review and, on February 15, 1990, the
Authority informed the parties that the deficiencies had been corrected
and that the Authority would process the Union's appeal. The Authority
also granted the Agency 30 days from the date that the Agency head's
designee received the Union's petition for review complying with the
Authority's regulations to file its Statement of Position. The Agency
filed its Statement of Position on February 22, 1990. The Union did not
file a response to the Agency's Statement of Position.
III. Proposal 1
IFPTE proposes that management delay implementing the drug testing
program until a satisfactory resolution of the negotiations is reached,
including utilization of FMCS/FSIP services.
A. Positions of the Parties
1. The Agency
The Agency argues that requiring delay in implementing the drug
testing program until completion of negotiations presupposes that all of
the proposals are negotiable. The Agency asserts that if the Agency
were required to negotiate on Proposal 1, the proposal would allow the
Federal Service Impasses Panel (FSIP) to impose a settlement that would
require the Agency to abandon all challenges to the negotiability of any
proposal concerning implementation of the drug testing program. The
Agency argues that because section 7117 of the Statute establishes the
parameters and statutory limitations of good faith bargaining, Proposal
1 would establish an impermissible precondition on negotiations by
precluding the Agency from raising questions concerning negotiability
and defending its position before the Authority. Agency's Statement of
Position (Agency's Statement) at 2.
To the extent that various other proposals are inconsistent with the
Agency's right to determine its internal security practices under
section 7106(a)(1) of the Statute, the Agency contends that Proposal 1,
by delaying implementation of the drug testing program pending
negotiation of nonnegotiable proposals, also interferes with
management's right under section 7106(a)(1). Id.
The Agency also argues that to the extent the proposal would defer
implementation of the Agency-wide drug testing program until all aspects
of the bargaining process had been completed, the proposal would
preclude compliance with an Agency-established implementation date and,
therefore, the proposal is nonnegotiable under section 7117( a)(2) of
the Statute. Id. at 3.
2. The Union
The Union states that Proposal 1 is necessary to ensure that
bargaining unit members not be forced to participate in a procedure that
has not been agreed upon between the Union and the Agency. Union's
Petition for Review (Petition for Review) at 1.
B. Analysis and Conclusion
We find that Proposal 1 is negotiable because it merely restates the
Agency's bargaining obligation under the Statute.
Proposal 1 would delay implementation of the drug testing program
pending completion of bargaining, including the invocation of the
processes of the Federal Mediation and Conciliation Service (FMCS) and
the FSIP. We find that the proposal is no more than a restatement of
the Agency's duty under the Statute to provide prior notice concerning a
proposed change in conditions of employment and to bargain with the
Union concerning the procedures to be followed and appropriate
arrangements for employees adversely affected by the proposed change.
The proposal would only require the Agency to meet its bargaining
obligation under the Statute and would not prevent the Agency from
exercising its rights to implement changes under the Statute. For
example, the proposal would not prevent the Agency from implementing
changes where those changes are consistent with the necessary
functioning of the Agency or once the matters before FMCS and/or FSIP
are resolved. See International Association of Machinists and Aerospace
Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen
Proving Ground, Maryland, 31 FLRA 205, 214-15 (1988) (Local Lodge 2424),
remanded as to other matters sub nom. U.S. Department of the Army,
Aberdeen Proving Ground v. FLRA, No. 88-1311 (D.C. Cir. July 18, 1988)
(order), decision on remand, 33 FLRA 512 (1988). In that case the
Authority found to be negotiable a proposal which delayed implementation
of the Agency's drug testing program until negotiations were completed
by use of FMCS/FSIP services.
We reject the Agency's contention that Proposal 1 is nonnegotiable
because it would allow the FSIP to impose a settlement in the resolution
of an impasse between the parties. The possibility that the FSIP may,
in fulfilling its mandated role to resolve negotiation impasses, impose
a proposal on parties provides no basis for finding a proposal
nonnegotiable. National Treasury Employees Union and U.S. Department
of the Treasury, Internal Revenue Service, 37 FLRA 147, 154 (1990);
National Treasury Employees Union, Chapter 83 and Department of the
Treasury, Internal Revenue Service, 35 FLRA 398, 414-16 (1990).
We also reject the Agency's contention that Proposal 1 is
nonnegotiable because it requires bargaining over proposals that may be
nonnegotiable under section 7106(a)(1) of the Statute. As we found
above, Proposal 1 is a restatement of the Agency's duty to bargain under
the Statute. The Statute does not require the Agency to bargain over
proposals that are nonnegotiable under section 7106(a)(1) of the
Statute. Because Proposal 1 imposes a duty to bargain on the Agency
that is the same as the duty to bargain under the Statute, we conclude
that Proposal 1 does not require bargaining over proposals that are
nonnegotiable under section 7106(a)(1) of the Statute.
The Agency has offered no support for its contention that Proposal 1
violates section 7117(a)(2) of the Statute because it "would preclude
compliance with a Departmentally-established implementation date" for
the drug testing program. Agency's Statement at 3. Section 7117(a)(2)
provides, in relevant part, that the duty to bargain under the Statute
does not extend to matters that are inconsistent with agency rules and
regulations if the Authority has determined that a compelling need
exists for the agency rule or regulation.
The Agency states that there is a departmentally established
implementation date for the drug testing program. However, the Agency
does not indicate whether the date for implementation is imposed by law,
Government-wide rules or regulations, or an Agency rule or regulation
for which there is a compelling need. The Agency also does not explain
why compliance with the Agency's date for implementation of its drug
testing program supersedes the Agency's duty to bargain under the
Statute. The Agency has not identified any law, rule or regulation with
which this proposal is inconsistent. Because the Agency has not
established that Proposal 1 is inconsistent with Federal law,
Government-wide rules and regulations, or Agency rules and regulations
for which there is a compelling need, there is no basis for us to
conclude that Proposal 1 is nonnegotiable under section 7117(a)(2) of
the Statute.
We find that Proposal 1 is substantively the same as Proposal 8 in
Local Lodge 2424. Like Proposal 8 in Local Lodge 2424, Proposal 1 is
merely a restatement of the Agency's duty to bargain under the Statute.
Proposal 1 does not interfere with the Agency's exercise of its right to
determine its internal security practices by implementing a drug testing
program. Therefore, we conclude that Proposal 1 is negotiable.
IV. Proposal 2
IFPTE proposes that (Bureau of Reclamation/Department of Interior)
submit to IFPTE all information concerning the implementation of the
selection process before that process is started.
A. Positions of the Parties
1. The Agency
The Agency states that Proposal 2 "is vague as to its meaning and
nonspecific as to its reach and (e)ffect." Agency's Statement at 3. The
Agency maintains that it cannot determine whether the Union is
requesting information concerning the implementation of its drug testing
program or information concerning the selection of positions within the
bargaining unit designated for random testing. The Agency argues that
if Proposal 2 is a request for information concerning the implementation
of its drug testing program, the proposal is moot because the Agency
provided the Union the information requested "prior to receipt of the
instant proposals." The Agency states that "it is now unclear what is
being sought." Id.
The Agency also argues that if Proposal 2 requests information
concerning the selection of positions within the bargaining unit
designated for random testing, it is moot because "(a)t this time, the
AGency is enjoined from implmenting random testing of employees in
testing designated positions." Id. at 4. The Agency asserts that "the
Union had previously been provided with specific information as to the
basis for determining the testing designated positions within the
bargaining unit designated for random testing." Id. at 3.
2. The Union
The Union states that "(t)he reason for (Proposal 2) is the same as
stated in (Proposal) 1." Petition for Review at 1. According to the
Union, Proposal 2 "is necessary to insure that bargaining unit members
not be forced to participate in a procedure that has not been agreed
upon between (the Union) and the (A)gency." Id.
B. Analysis and Conclusions
Proposal 2 requires the Agency to provide the Union with information
concerning the implementation of the selection process in the Agency's
drug testing program before the Agency makes selections for testing
under the program. The Agency contends that Proposal 2 is moot because
the Agency has provided the Union all of the information requested in
the proposal.
It is not clear whether the wording of Proposal 2 merely requires the
Agency to provide specifically identified information or whether the
proposal creates an obligation on the part of the Agency to provide
information to the Union concerning the selection of employees under the
Agency's drug testing program each time the Agency implements the
selection process for drug testing. Therefore, Proposal 2 is not moot.
Moreover, because the scope of the Agency's obligation to provide
information under Proposal 2 is not clear, the proposal is subject to
differing interpretations. To the extent that Proposal 2 is interpreted
to require the Agency to provide the Union information concerning the
procedures that will govern the implementation of the Agency's selection
process, it would constitute a negotiable procedure. See National
Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen
Proving Ground Installation Support Activity, 31 FLRA 241, 255 (1988)
(Aberdeen I), remanded as to other matters sub nom. Department of the
Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity
v. FLRA, No. 88-1310 (D.C. Cir. July 18, 1988) (order), decision on
remand, 33 FLRA 702 (1988), rev'd in part and remanded as to other
matters sub nom. Department of the Army, U.S. Army Aberdeen Proving
Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D. C. Cir.
1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 926 (1990).
However, to the extent that Proposal 2 is interpreted to require the
Agency to provide information about the criteria for selection under the
Agency's drug testing program so as to allow the Union to determine the
employees to be selected for testing in advance of testing, the proposal
would require the disclosure of information which could allow the Union
to defeat the goal of the Agency's random drug testing program and
thereby directly interferes with the Agency's right to determine its
internal security practices under section 7106(a)(1) of the Statute.
See National Federation of Federal Employees, Local 2050 and
Environmental Protection Agency, 36 FLRA 618, 639 (1990) (an agency's
right to determine its internal security practices includes management
action to prevent improper and unauthorized disclosure of privileged or
confidential information).
We cannot decide, based on the record, which of the above
interpretations is intended by the Union. Consequently, we will dismiss
the petition for review as to Proposal 2 because the Union has not
created a record on which we can determine the negotiability of the
proposal. See Aberdeen I, 31 FLRA at 255.
V. Proposal 4
IFPTE proposes that employees operating drug testing equipment be
trained and certified by qualified instructors before any testing is
started.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 4 violates management's rights to
assign work and to contract out under section 7106(a)(2)(B) of the
Statute. The Agency relies on National Federation of Federal Employees,
Local 15 and Department of the Army, Armament Munitions and Chemical
Command, Rock Island, Illinois, 30 FLRA 1046, 1062-63 (1988) (Proposal
3) (Rock Island I), remanded as to other matters sub nom. Department of
the Army, U.S. Army Armament, Munitions and Chemical Command, Rock
Island, Illinois v. FLRA, No. 8-1239 (D.C. Cir. May 25, 1988) (order),
decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part
and remanded as to other matters sub nom. Department of the Army, U.S.
Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890
F.2d 467 (D.C. Cir. 1989 (Aberdeen Proving Ground), decision on remand,
35 FLRA 936 (1990) (Rock Island III), as support for its contentions.
However, the Agency argues that, unlike Proposal 3 in Rock Island I,
Proposal 4 is not an "appropriate arrangement" under section 7106(b)(3)
of the Statute. The Agency asserts that Proposal 4 does not qualify as
an appropriate arrangement because it is inconsistent with the final
Guidelines and, therefore, nonnegotiable under section 7117(a)(1) of the
Statute.
2. The Union
The Union states, as to Proposal 4, that "(o)nly qualified personnel
should be used in a program as important as the drug testing program.
An employee's future may rest in the hands of an unqualified person.
This should not be allowed." Petition for Review at 1.
B. Analysis and Conclusions
A proposal prescribing the qualifications of the personnel who will
operate drug testing equipment "is inconsistent with the spirit, if not
the letter, of the (final) Guidelines." Aberdeen Proving Ground, 890 F.
2d at 474. In Aberdeen Proving Ground, the court found that the final
Guidelines were intended to establish the exclusive standards for
certification of laboratories. "A laboratory's certification under the
Guidelines 'shall be a determination that these qualification
requirements have been met.'" Id. at 473 (quoting section 3.6 of the
final Guidelines, 53 Fed. Reg. at 11987). The court also found that the
final Guidelines do not specify requirements for the personnel who
perform the test, "but rather depend on the ability of those responsible
individuals (engaged in the day-to-day management and operation of
laboratories) to select and oversee properly qualified employees in each
specific laboratory(.)" Id. (quoting 53 Fed. Reg. at 11971). Because
the final Guidelines do not specify requirements for laboratory
personnel who perform drug tests, the court concluded that the
imposition of additional standards for those laboratory personnel was
inconsistent with the final Guidelines and, therefore, not negotiable.
Id.
On remand from the court in Aberdeen Proving Ground, the Authority
decided in Rock Island III, 35 FLRA 936, 938-39 (1990), that the
proposal "regarding the qualifications of personnel operating (drug)
testing equipment" was nonnegotiable because it was inconsistent with
the final Guidelines. The Authority stated that "(i)n future cases
involving proposals that are not materially different from Proposal 3
(in Rock Island III) . . . and that are intended to be applied in the
same manner, we will also find them to be nonnegotiable." Id.
Proposal 4 establishes the qualifications of the personnel who will
operate drug testing equipment. Therefore, it concerns the
qualifications of the staff of the independent, certified laboratory
performing the urinalysis testing under the final Guidelines. Proposal
4 establishes standards in addition to the standards in the final
Guidelines for laboratory certification. Proposal 4 is not materially
different from Proposal 3 in Rock Island III and is intended to be
applied in the same manner. Because we find that Proposal 4 establishes
specific qualifications for laboratory personnel and, thereby, imposes
additional standards for laboratory certification, we conclude,
consistent with Rock Island III, that the proposal is inconsistent with
the final Guidelines and, therefore, nonnegotiable under section
7117(a)(1) of the Statute.
Further, because we have found that Proposal 4 is inconsistent with
the final Guidelines and, therefore, nonnegotiable under section 7117(
a)(1), "we need not evaluate its impact on management's rights."
Aberdeen Proving Ground, 890 F.2d at 474.
VI. Proposal 6
IFPTE proposes that the agency be prohibited from using the
urinalysis test as a punitive measure against an employee.
A. Positions of the Parties
1. The Agency
The Agency notes that the proposal does not state whether it is
limited to preclude use of the selection procedures in a punitive
manner, or whether it is intended to preclude management from using test
results to punish employees. Agency's Statement at 6. The Agency
contends that "(i)f the proposal applies to the disciplinary measures
which management may take as a result of an employee tesing positive,
then the proposal is nonnegotiable because it directly interferes with
management's right to discipline employees under 5 U.S.C. 7106(a)(2)(A)
and under Executive Order 12564." Id. at 6-7. The Agency states that
if, however, the proposal "requires only that the selection of employees
for drug testing be in accordance with law," then the proposal would be
negotiable. Id. at 7. Finally, the Agency contends that if the
proposal is intended to preclude management from using test results to
punish employees, it also is inconsistent with the Department's Plan for
a Drug Free Workplace. The Agency asserts that there is a compelling
need for Part II, 2 B, C, D and E of the Agency's drug testing plan to
bar negotiation on the proposal.
2. The Union
The Union gives no explanation of its intent as to Proposal 6 beyond
the words of the proposal itself. See Petition for Review at 2.
B. Analysis and Conclusions
Proposal 6, which prohibits the Agency "from using the urinalysis
test as a punitive measure against an employee," is negotiable.
In National Federation of Federal Employees, Local 1437 and U.S.
Army Armament Research, Development and Engineering Center, Dover, New
Jersey, 31 FLRA 101 (1988) (decision on remand as to other matters 33
FLRA 493 (1988)) (Dover), the Authority found a proposal substantively
the same as Proposal 6 in this case to be negotiable. Proposal 4 in
Dover provided that "(u)nder no circumstances will an employee be
subjected to urinalysis as a punitive measure." The Authority found that
the proposal was consistent with the agency's procedural drug testing
regulations, and did not interfere with management's right to determine
its internal security practices in accordance with law, including Exec.
Order No. 12564.
Proposal 6, like Proposal 4 in Dover, restricts management's use of
urinalysis tests as a punitive measure. Consequently, we interpret
Proposal 6 as prohibiting the Agency from selecting employees for
testing for reasons unrelated to the purpose of the drug testing
program. As in Dover, we find that the proposal merely requires the
Agency to exercise its rights under section 7106(a)(1) in accordance
with law. Because we find that the proposal requires management to
exercise its rights under section 7106(a)(1) of the Statute in
accordance with applicable law, we conclude, consistent with American
Federation of Government Employees, AFL-CIO, Department of Education
Council of AFGE Locals and U.S. Department of Education, Washington, D.
C., 38 FLRA 1068, 1074-79 (1990) (Department of Education) decision on
reconsideration 39 FLRA No. 107 (1991), that the proposal is negotiable
as an appropriate arrangement under section 7106(b)(3) of the Statute.
See also Merit Systems Protection Board Professional Association and
Merit Systems Protection Board, 31 FLRA 258, 264 (1988), reversed as to
other matters sub nom. U.S. Merit Systems Protection Board v. FLRA, 913
F.2d 976 (D.C. Cir. 1990) (where issue of appropriate arrangement not
raised, Authority considered issue anyway because of similarity to a
case where the issue was raised and the failure to consider the issue
would lead to anomalous and conflicting results on similar proposals).
The record does not support the Agency's contention that Proposal 6
is inconsistent with an Agency regulation for which there is a
compelling need. The Agency has not provided a copy of Part II, 2 B, C,
D and E of its drug testing plan, nor has it explaned how Proposal 6 is
inconsistent with that portion of the regulation. Further, the Agency
has not provided any evidence or argument to support its contention that
there is a compelling need for Part II, 2 B, C, D and E of its drug
testing plan. We conclude that the Agency has not demonstrated that
Proposal 6 is inconsistent with any law, rule, or regulation so as to
render it nonnegotiable under the Statute. See American Federation of
Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and
U.S. Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 100 (1988)
(Federal Correctional Institution, Danbury, Connecticut). Consequently,
we find that Proposal 6 is negotiable.
VII. Proposal 8
IFPTE proposes that an employee being tested be granted up to four
(4) hours administrative leave to take the drug test.
A. Positions of the Parties
1. Agency
According to the Agency, Proposal 8 would allow an employee to avoid
testing if he or she were able to refrain from furnishing a specimen
during the 4-hour period provided under the proposal. The Agency states
that "(a)fter the passage of 4 hours, by operation of the proposal the
Agency would no longer be free to obtain a urine sample from the
employee." Agency's Statement at 7. The Agency argues that the proposal
"could operate as a contractual limitation as to the time available
within which a urine specimen could be obtained, thus improperly
frustrating the intent of the program." Id. The Agency contends that
the limitation in the proposal violates management's right to determine
its internal security practices under section 7106( a)(1) of the
Statute. The Agency also contends that Proposal 8 is nonnegotiable
because it is inconsistent with "the Department's Plan for a Drug Free
Federal Workplace, Part II.4, Failure to Appear." Id. at 8. The Agency
asserts that there is a compelling need for its regulation.
2. Union
The Union states the following concerning Proposal 8: "If an
employee cannot furnish a specimen immediately, it may take that long
for them to be able to submit a proper sample." Petition for Review at
2.
B. Analysis and Conclusions
Proposal 8 requires that employees be provided up to 4 hours of
administrative leave to take a drug test. We find that Proposal 8 is
negotiable.
The Agency interprets Proposal 8 as limiting the Agency to a maximum
of 4 hours in which to obtain a urine sample. However, the record does
not support the Agency's interpretation of the proposal. Proposal 8 is
not intended to limit the time period during which the Agency may obtain
an employee's urine sample. The wording of Proposal 8 requires that
employees be provided up to 4 hours of administrative leave to take a
drug test. The Union states that Proposal 8 is intended to allow an
employee additional time to furnish a urine sample "(i)f an employee
cannot furnish a specimen immediately(.)" Petition for Review at 2. We
interpret Proposal 8 as requiring the Agency to provide up to 4 hours of
administrative leave for an employee to furnish a urine sample for drug
testing if the employee cannot furnish the specimen immediately. The
proposal does not limit the Agency's discretion to approve
administrative leave for a longer period if the Agency determines that
more than 4 hours is required to provide a urine sample. See American
Federation of Government Employees Local 2298 and U.S. Department of the
Navy, Polaris Facility, Atlantic, Charleston, South Carolina, 35 FLRA
591 (1990) (proposals that preserve management's discretion to approve
or disapprove employee absences do not conflict with management's right
to assign work).
In Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95
(1988) (Proposal 43, 2nd Sentence), the Authority held to be negotiable
a proposal requiring the agency, when it orders an employee to undergo a
urine test, to give the employee being tested up to 4 hours of
administrative leave in order to have a specimen collected. The
Authority found that the proposal concerned only the test specimen that
was required by the agency and concluded that providing administrative
leave for employees did not interfere with management's right to assign
work because the absence from assigned duties was at the direction of
the agency. The Authority also found that the proposal did not require
the specimen to be collected at any particular place and nothing in the
record indicated that the agency was required to grant an employee the
full 4 hours of leave. Therefore, based on the record, the Authority
concluded that the requirement for administrative leave under the
proposal in that case was consistent with law, rule and regulation. Id.
at 99-100.
There is no substantive distinction between the requirement for
administrative leave to take a drug test in Federal Correctional
Institution, Danbury, Connecticut and Proposal 8 in this case. Like the
proposal in Federal Correctional Institution, Danbury, Connecticut,
Proposal 8 applies to the test specimen that is required by the Agency.
Therefore, the use of administrative leave under the proposal would
result from a drug test taken at the direction of the Agency and would
not interfere with the Agency's right to assign work. Also, Proposal 8
does not require the specimen to be collected at any particular place
and the record does not indicate that the Agency must grant an employee
the full 4 hours of administrative leave.
The record does not support the Agency's contention that Proposal 8
is inconsistent with an Agency regulation for which there is compelling
need. The Agency has not provided a copy of Part II, 4 of its drug
testing plan, nor has it shown that there is a conflict between that
portion of its regulation and Proposal 8. Further, the Agency has not
provided an evidence or argument to demonstrate that Part II, 4 of its
drug testing plan is supported by a compelling need with reference to
the standards set forth in section 2424.11 of the Authority's
regulations. We conclude that the Agency has not demonstrated that
Proposal 8 is inconsistent with any law, rule, or regulation so as to
render it nonnegotiable under the Statute. See American Federation of
Government Employees, Local 1857 and U.S. Department of the Air Force,
Air Logistics Center, Sacramento, California, 36 FLRA 894, 907-11
(1990).
VIII. Proposal 10
IFPTE proposes that urine specimens not tested for drugs on the day
collected be frozen. If, when thawed out, the specimen shows visual
signs of precipitated salts, the specimen will be discarded and a new
sample taken.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 10 directly interferes with
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute. The Agency states that while the
Union may view Proposal 10 as a procedure, the Agency views it as a
substantive criterion directly interfering with management's right to
determine its internal security practices. The Agency argues that the
proposal prescribes a specific time and method for freezing urine
samples and precludes the Agency from using alternate methods for
conducting this aspect of the drug testing process. Agency's Statement
of Position at 8-9.
The Agency argues that Proposal 10 does not constitute an appropriate
arrangment under section 7106(b)(3) of the Statute. The Agency states
that even if the proposal were considered to be an "arrangement," it
does not constitute an "appropriate" arrangement. The Agency maintains
that because the proposal excessively interferes with management's right
to determine its internal security practices under section 7106(a)(1),
the proposal does not constitute an appropriate arrangement under
section 7106(b)(3). Id. at 9.
The Agency also contends that Proposal 10 conflicts with section
2.4(c) of the final Guidelines and, therefore, that the proposal is
nonnegotiable under section 7117(a)(1) of the Statute. The Agency
states that section 2.4(c) of the final Guidelines provides that
specimens which are not tested within 7 days of arrival at the
laboratory are to be placed in secure refrigeration. The Agency argues
that to the extent that Proposal 10 mandates a method or time for
freezing untested samples which is different from the standard in the
final Guidelines, the proposal is inconsistent with the final
Guidelines. In this regard, the Agency also cites section 1.1(f) of the
final Guidelines, which provides that "(a)gencies may not deviate from
the provisions of (the) Guidelines without the written approval of the
Secretary." Id. at 9-10.
The Agency also claims that Proposal 10 conflicts with management's
right to determine the technology, methods and means of performing work
under section 7106(b)(1) of the Statute. The Agency asserts that the
process of freezing or discarding urine specimens is an integral part of
the Agency's work in administering its drug testing program.
Accordingly, the Agency argues that management has the right to
determine the specific technology of performing the work. The Agency
concludes that by restricting management's choices, the proposal
conflicts with management's right to determine the methods and means of
performing work under section 7106(b)(1) and, therefore, that the
proposal is nonnegotiable. Id. at 10.
The Agency maintains that Proposal 10 conflicts with the Agency's
Drug Testing Plan for which there is a compelling need under section
7117(a)(2) and (b) of the Statute. The Agency states that its plan
provides that "(the Agency) shall adhere to all scientific and technical
guidelines for drug testing programs promulgated by HHS consistent with
the authority granted by Executive Order 12564." Id. at 10-11. The
Agency contends that its adherence to the final Guidelines, which are
Government-wide regulations, implements a mandate to the Agency to
follow Government-wide regulations which are essentially
nondiscretionary in nature. Therefore, the Agency argues that Proposal
10 is nonnegotiable because it violates the Agency's Plan for which
there is a compelling need under section 7117(a)(2) and (b). Id.
2. The Union
The Union contends that Proposal 10 will prevent a sample from being
rendered inaccurate due to delays in testing. The Union asserts that
any delay may cause false-positive readings. Union's Petition for
Review at 2.
B. Analysis and Conclusion
Proposal 10 provides that urine samples not tested on the day they
are collected must be frozen and that if, after thawing, the samples
show signs of precipitated salts, the specimens must be discarded and
new samples taken. We find that the proposal is inconsistent with
sections 2.4(c) and (i) of the final Guidelines. Because Proposal 10 is
inconsistent with the final Guidelines, which are Government-wide
regulations, Proposal 10 is nonnegotiable under section 7117(a)(1) of
the Statute.
Under the procedures established by the final Guidelines, collection
site personnel receive the samples to be tested and arrange for the
shipment of the samples to the certified laboratory for testing. See
section 2.2(h) of the final Guidelines, 53 Fed. Reg. 11981.
The final Guidelines provide instructions to the certified laboratory
regarding the proper storage and refrigeration of urine samples prior to
testing. The final Guidelines provide that "(s) pecimen bottles will
normally be retained within the laboratory's accession area until all
analyses have been completed." See section 2.4(b)(2) of the final
Guidelines, 53 Fed. Reg. 11983. The final Guidelines also provide that
"(s)pecimens that do not receive an initial test within 7 days of
arrival at the laboratory shall be placed in secure refrigeration units.
Temperatures shall not exceed 6 (degrees) C." See section 2.4(c) of the
final Guidelines, 53 Fed. Reg. 11983. Samples consigned to long term
storage are to be frozen at minus 20 degrees C or less. Section 2.4(h)
of the final Guidelines, 53 Fed. Reg. 11984. The final Guidelines also
state "(b)ecause some analytes deteriorate or are lost during freezing
and/or storage, quantitation for a retest is not subject to a specific
cutoff requirement but must provide data sufficient to confirm the
presence of the drug or metabolite." Section 2.4(i) of the final
Guidelines, 53 Fed. Reg. 11984.
In sum, the final Guidelines provide that urine samples will normally
be retained in the laboratory's accession area until all analyses are
completed, that the samples will be refrigerated if they do not receive
an initial test within 7 days of arrival at the laboratory, and that the
samples will be frozen when they are retained for long term storage.
The final Guidelines also provide that if samples are frozen for long
term storage, there must be sufficient quantity to permit a retest,
because "analytes" deteriorate or are lost during freezing.
Proposal 10 states that if the urine sample is not tested on the day
that it is collected, it is to be frozen. By providing that the sample
is to be frozen if it is not tested on the day it is collected, Proposal
10 is inconsistent with the procedures for handling samples set forth in
the final Guidelines. The proposal requires freezing the samples in
situations where freezing is not permitted. The procedures in the final
Guidelines: (1) specify that the sample normally will be retained in
the accession area and that it will be refrigerated if it does not
receive an initial test within 7 days; and (2) provide for freezing
only when necessary for long term storage and only where there is
sufficient sample to permit a retest. Moreover, as the final Guidelines
indicate, freezing can result in the loss or deterioration of the
"analytes" in the sample, which means that immediate freezing of the
sample may compromise its validity prior to the initial test.
Therefore, to the extent that Proposal 10 would require the freezing
of a sample the day after it is collected, regardless of whether that is
necessary for long term storage or whether there is a sufficient sample
to permit a retest, the proposal is inconsistent with the requirements
of the final Guidelines. Because Proposal 10 is inconsistent with the
procedures for refrigerating and freezing samples by the certified
laboratory, it is inconsistent with the final Guidelines and is
nonnegotiable under section 7117(a)(1) of the Statute.
Inasmuch as Proposal 10 is nonnegotiable under section 7117(a)(1) of
the Statute, we need not consider the other arguments raised by the
parties.
IX. Proposals 11 and 12
Proposal 11
IFPTE proposes that the agency be required to perform a second drug
test on a new sample of the same specimen, if a positive result is
obtained in the first drug test.
Proposal 12
IFPTE proposes that the agency be required to divide in half any
specimen that yields a positive reaction on a drug test before being
sent for a confirming test. The half being retained will be frozen. If
the positive test is confirmed, the employee will be allowed to send the
frozen portion to a laboratory of his/her choosing at the agency's
expense for retesting.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposals 11 and 12 conflict with the final
Guidelines, which are Government-wide regulations and, therefore, the
proposals are nonnegotiable under section 7117(a)(1) of the Statute.
The Agency asserts that the Response to Comments in the final
Guidelines, 53 Fed. Reg. 11971, para. 1, states that "split samples" are
a cumbersome and expensive process, do not have any scientific advantage
over the system devised by HHS, and risk administrative error by
doubling the labeling, initialing, storage and accountability
requirements. According to the Agency, the Response to Comments also
"specifically reject(s) allowing the tested employee (to present) to the
Medical Review Officer a split sample or private sample that does not
fully comply with these Guidelines." Agency's Statement of Position at
12. The Agency states that it presumes that the employee intends to use
the results of the drug test on the retained sample to refute the
results of an official drug test, and refute the findings of the Medical
Review Officer (MRO). Therefore, the Agency contends that Proposals 11
and 12 are nonnegotiable under section 7117(a)(1) of the Statute. Id.
at 12-13.
The Agency also contends that Proposals 11 and 12 violate
management's right to determine the internal security practices of the
Agency under section 7106(a)(1) of the Statute. The Agency argues that
the proposals delay the Agency's ability to take discipline against an
employee who tests positive, by requiring the Agency to wait for the
results of a second test. The Agency also argues that the proposals
create additional procedures regarding sealable containers, labeling and
signing the containers, storage, and chain of custody which create extra
burdens for the collection site person and which risk loss of identity
of the "official" sample. Id. at 13-14.
The Agency maintains that Proposal 12 is nonnegotiable because it
prevents the Agency from taking disciplinary action pursuant to its
right under section 7106(a)(2)(A) of the Statute. The Agency believes
that the delay required by Proposal 12, because of the requirement for a
second confirmatory test on a second sample, could prevent the Agency
from exercising its right to discipline and, therefore, is
nonnegotiable. The Agency asserts that the delay is not a negotiable
procedure but, rather, directly interferes with management's right to
discipline by requiring management to delay discipline indefinitely
until an action of the employee, over which management has no control,
is completed by having a private test performed on the retained sample.
Id. at 14.
The Agency also argues that Proposal 12 violates management's right
to contract out under section 7106(a)(2)(B) of the Statute. The Agency
states that allowing an employee to have a sample tested at agency
expense at a laboratory selected by the employee violates management's
right to contract out. Id. at 14-15.
2. The Union
The Union argues that Proposal 11 will insure that false-positive
results are kept to a minimum. The Union maintains that the proposal
will also prevent cross-contamination of specimens. Id. at 3.
The Union contends that Proposal 12 is necessary to confirm any
positive drug results. The Union states that verification by a second
laboratory will insure that the Agency is not taking action against an
employee for a false-positive result. Id.
B. Analysis and Conclusions
For the following reasons, we find that the record is not sufficient
for us to make a negotiability determination on Proposals 11 and 12.
Therefore, we will dismiss the Union's petition for review as to
Proposals 11 and 12.
Proposal 11 provides that a second drug test on a new sample of the
original specimen will be performed if the first drug test result is
positive. Proposal 12 would require the agency to split in half any
sample that yields a positive result on the initial drug test, before
having the sample sent for confirmatory testing. The retained portion
of the sample will be frozen. If the confirmatory test yields a
positive result, the employee has the option to have the frozen portion
of the sample tested at a laboratory selected by the employee.
In Department of Education, 38 FLRA 1068 (1990), we dismissed the
petition for review as to a proposal, similar to Proposals 11 and 12,
which provided for a second test if the employee's initial drug test was
positive, because the record was not sufficient for us to make a
negotiability determination. See id. at 1099-1103. In that case, the
union provided no information concerning the purpose of the second test.
The Union did not state who would receive the results of the second
test, or whether the results of the second test would be used to enable
someone other than the MRO to judge the medical significance of the
results.
It is well established that the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination.
National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d
886 (D.C. Cir. 1982), aff'g 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.
The record in this case is silent regarding who would receive the
results from the second drug tests or whether those results would be
reported to some individual other than the MRO to enable that individual
to assess the medical significance of the results. We agree with the
U.S. Court of Appeals for the District of Columbia Circuit that
determining who would receive the test results of a second or split
sample, and whether those results would be used by someone other than
the MRO to assess the medical significance of the results, are necessary
factors in determining whether such proposals are negotiable.
Consequently, information as to who would receive the test results from
a second or split sample and how the results would be used must be in
the record to enable the Authority to make a negotiability
determination. See Aberdeen Proving Ground, 890 F.2d at 471-73.
It is not clear whether, under Proposals 11 and 12, employees would
provide the results of the retests or second tests required by the
proposals to their supervisors to facilitate the supervisors' personnel
decision or to someone other than the MRO so as to enable that
individual to refute the MRO's medical determination, or whether the
proposals would have some other effect. Without an explanation from the
Union concerning the intended effect of Proposals 11 and 12, or how the
proposals operate consistent with the duties of the MRO, as prescribed
in the final Guidelines, Proposals 11 and 12 are subject to
interpretations that would render them inconsistent with the provisions
in the final Guidelines governing reporting and verifying positive test
results. See Aberdeen Proving Ground, 890 F.2d at 471-73, in which the
court rejected the Authority's conclusion that a similar proposal was
negotiable. The court stated that
(w)hile enabling the employee to provide supplementary evidence,
such as new or split samples, to facilitate the supervisor's
personnel decision might well be consistent with the Guidelines,
(the Authority's) clearly expressed understanding that the
proposal would allow the employee to refut the (MRO's) medical
determination forces us to conclude that the proposal does not
pass muster.
890 F.2d at 472. The court found that the final Guidelines provide the
employee with an opportunity to persuade the MRO that the test result
was incorrect or justifiable and that the MRO alone is qualified to
evaluate the employee's claim. The court stated that "(a) proposal
giving the supervisor that authority would undercut the Guidelines'
command that agencies appoint a medical officer to make final medical
decisions." Id. at 473.
Accordingly, consistent with our decision in Department of Education,
because we cannot determine from the record who would receive the
results of the second tests or whether those results would be reported
to some individual other than the MRO to enable that individual to
assess the medical significance of the results, we conclude that the
record is insufficient for us to determine the negotiability of
Proposals 11 and 12. Consequently, we dismiss the Union's petition for
review as to Proposals 11 and 12.
X. Proposal 13
IFPTE proposes that reasonable accommodation be made for an employee
who fails a drug test, i.e. be given access to rehabilitation programs,
instead of being fired.
A. Positions of the Parties
1. The Agency
The Agency acknowledges that section 5(a) of Exec. Order No. 12564
requires agencies to refer employees who are found to use illegal drugs
for treatment or rehabilitation. Agency's Statement at 15. The Agency
argues, however, that the Executive Order also provides that treatment
or rehabilitation shall be "in addition to appropriate personnel
actions." Id. The Agency states that, if the proposal is "not intended
to preclude the Agency from taking appropriate disciplinary action after
a positive test result, and the proposal is limited to management
providing access to the drug treatment and rehabilitation program as
provided in the Executive Order, then the Agency withdraws its
allegation of nonnegotiability as to this part of the proposal." Id. at
15-16. The Agency argues, however, that the proposal can be construed
as precluding appropriate disciplinary action following a positive test
so long as an employee undertakes rehabilitation. Id. at 15-16. The
Agency concludes tht to the extent that the requirements of the proposal
exceed what is allowed or required by law, the proposal is, therefore,
nonnegotiable. Id.
2. The Union
The Union states that an employee who voluntarily enters a treatment
program should not be discharged for drug use. The Union claims that
Proposal 13 provides an employee who has tested positive for use of an
illegal drug the same accommodation in terms of treatment and
rehabilitation as an employee in a voluntary program. Petition for
Review at 3.
B. Analysis and Conclusions
Proposal 13 requires the Agency to provide employees who are found to
use illegal drugs with access to rehabilitation instead of removing them
from the Federal service. The Union states that the intent of the
proposal is to provide employees with "the same accommodation" as
employees who are in a voluntary program.
Under section 5(b) of Exec. Order No. 12564, agencies are precluded
from taking disciplinary action against an employee who is identified as
using illegal drugs after undergoing a voluntary test, who obtains
appropriate counseling and rehabilitation, and who thereafter refrains
from use of illegal drugs. See also FPM Letter 792-19, Section 5(d).
Thus, if the proposal is intended to provide employees with "the same
accommodation" as employees who are in a voluntary program, the proposal
would appear to preclude the Agency from disciplining employees who are
found to use illegal drugs and would require the Agency to offer such
employees rehabilitation instead.
The plan wording of the proposal, however, precludes the Agency only
from removing employees who are found to use illegal drugs -- presumably
through other than the voluntary testing program -- but does not
preclude all disciplinary action. Because of this ambiguity, we will
limit our interpretation of the proposal so that it is consistent with
the wording of the proposal. Consequently, we find that the proposal is
intended to prevent the Agency from removing employees who are found to
use illegal drugs and to require that those employees be offered the
opportunity to enter rehabilitation.
In American Federation of Government Employees, Local 738 and U.S.
Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1209-16
(1990) (Member Talkin dissenting) (Fort Leavenworth), the Authority
found that a proposal that limited the range of disciplinary actions
that management may take against an employee for a first confirmed
finding of illegal drug use was consistent with Exec. Order No. 12564
and FPM Letter 792-19, but that the proposal was nonnegotiable because
it directly and excessively interfered with management's right to
discipline employees under section 7106(a)(2)(A) of the Statute. We
also noted that section 5(d) of Exec. Order No. 12564 and section 5(d)
of FPM Letter 792-19 mandated the removal of an employee upon a second
confirmed finding of illegal drug use. Id.
Proposal 13 is broadly worded and would apply both to employees who
are determined for the first time to be using illegal drugs and to
employees who are determined for the second time to be using those
drugs. To the extent that the proposal would preclude the Agency from
removing an employee who has been determined for the first time to use
illegal drugs, we find, consistent with Fort Leavenworth, that Proposal
13 would directly interfere with management's right to discipline
employees.
Although the Union does not specifically claim that Proposal 13 is an
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute, we note that, by its terms, the proposal seeks to
ameliorate the adverse effects on employees of the exercise of
management's rights. However, there is no substantive distinction
between Proposal 13 and the proposal at issue in Fort Leavenworth, which
we found was not an "appropriate arrangement" because it excessively
interfered with the agency's right to discipline employees under section
7106(a)(2)(A) of the Statute. See Fort Leavenworth, 38 FLRA at 1215-16.
Consequently, as there is no basis in record to conclude otherwise, we
find, consistent with Fort Leavenworth, that Proposal 13 would not
constitute an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute.
Moreover, to the extent that Proposal 13 would prevent the Agency
from removing an employee who is determined for the second time to use
illegal drugs, we find that the proposal is inconsistent with law and
Government-wide regulation. The Authority has found that Exec. Order
No. 12564 constitutes law under section 7117(a)(1) of the Statute. Rock
Island I, 30 FLRA at 1070-71. FPM Letter 792-19 (54 Fed. Reg. 14024)
constitutes "government-wide guidance to agencies on the implementation
of the terms of the Order." Section 1.e of FPM Letter 792-19. The
guidance is generally applicable to the Federal workforce as a whole,
and constitutes a declaration of official OPM policy pursuant to the
Executive Order. Consequently, we find that FPM Letter 792-19 is a
Government-wide regulation within the meaning of section 7117(a)(1) of
the Statute. See, for example, American Federation of Government
Employees, AFL-CIO, Local 1759 and Department of the Army, Headquarters,
Fort McPherson, Georgia, 31 FLRA 21, 29-30 (1988).
As noted above, section 5(d) of Exec. Order No. 12564 and section 5(
d) of FPM Letter 792-19 require removal of an employee upon a second
confirmed positive drug test. Consequently, because Proposal 13 would
preclude removal of an employee upon a second confirmed positive drug
test, we find that the proposal is inconsistent with section 5(d) of the
Executive Order and section 5(d) of FPM Letter 792-19. We conclude,
therefore, that Proposal 13 is nonnegotiable under section 7117(a)(1) of
the Statute.
In conclusion, to the extent that Proposal 13 precludes the Agency
from removing an employee for a first confirmed use of illegal drugs, we
find that it is nonnegotiable because it directly interferes with
management's right to discipline under section 7106(a)(2)(A) of the
Statute. We also find that, to the extent Proposal 13 would preclude
the Agency from removing an employee who is determined for the second
time to use illegal drugs, the proposal is nonnegotiable because it is
inconsistent with law and Government-wide regulation under section
7117(a)(1) of the Statute.
XI. Proposal 14
IFPTE proposes that a second urinalysis be given only after the
employee has been in a rehabilitation program for a reasonable time
period of at least 60 days.
A. Positions of the Parties
1. The Agency
The Agency interprets Proposal 14 as providing a 60-day period of
time during which an employee cannot be tested for illegal drugs. The
Agency argues that, interpreted in this manner, the proposal has the
same effect as proposals found nonnegotiable by the Authority under
section 7106(a)(1) of the Statute because they required notice to
employees prior to actual drug testing. Agency's Statement at 16. The
Agency notes that "(a)s stated by the Authority in Aberdeen I, 31 FLRA
241 (1988), requiring a specific notice period prior to actual drug
testing could provide employees who use drugs with sufficient notice of
the tme after which they are to be tested so as to frustrate the drug
testing program's purpose of identifying illegal drug users." Id. The
Agency concludes that the proposal directly interferes with management's
right under section 7106(a)(1) to determine its internal security
practices. Id.
2. The Union
The Union states that this proposal "would insure that after 60 days
the employee should be drug-free and retain no trace of a prohibited
drug in his/her body." Petition for Review at 3.
B. Analysis and Conclusions
Proposal 14 precludes the Agency from giving a urinalysis test to an
employee who is in a rehabilitation program for a reasonable period,
which must be at least 60 days. There is no exception to the testing
prohibition in the wording of Proposal 14. In addition, the Union does
not describe any circumstance where testing of an employee who is in a
rehabilitation program is permitted under Proposal 14 during the first
60 days of a rehabilitation program. We find that Proposal 14 precludes
the Agency from giving a urinalysis test, for any purpose, to an
employee during the first 60 days of a rehabilitation program. We
conclude that, although Proposal 14 is not inconsistent with Exec.
Order No. 12564 or FPM Letter 792-19, it is nonnegotiable because it
directly and excessively interferes with management's right under
section 7106(a)(1) of the Statute to determine its internal security
practices.
Section 3(c)(3) of Exec. Order No. 12564 provides that the head of an
agency is "authorized" to test an employee "(a)s part of or as a
follow-up to counseling or rehabilitation for illegal drug use through
an Employee Assistance Program." Section 3(e) of FPM Letter 792-19,
explaining section 3(c)(3), provides that the head of an agency "may
also require agency-administered follow-up drug testing during or after
counseling or rehabilitation for illegal drug use(.)"
To the extent that Proposal 14 would preclude management from testing
an employee for at least the first 60 days of rehabilitation, the
proposal is not inconsistent with law or Government-wide regulation
because the Executive Order and the FPM Letter allow an agency
discretion as to whether an employee will be tested as part of or as a
follow-up to rehabilitation.
However, we find that Proposal 14 is nonetheless nonnegotiable.
Proposals which prescribe substantive criteria governing the exercise of
management's right to determine its internal security practices under
section 7106(a)(1) of the Statute directly interfere with that right.
National Federation of Federal Employees, Local 2050 and Environmental
Protection Agency, 36 FLRA 618, 624-27 (1990) (Environmental Protection
Agency). Management's right under section 7106(a)(1) include the right
to conduct random drug tests. Rock Island I at 1055-57. Proposal 14
would prohibit the Agency from randomly testing an employee who is in a
rehabilitation program, or even from testing the employee on reasonable
suspicion, for at least the first 60 days. Restricting in this manner
management's ability to administer another random test directly
interferes with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
Finally, the Union has failed to demonstrate that Proposal 14
constitutes an appropriate arrangement under section 7106(b)(3) of the
Statute. Even assuming that Proposal 14 constitutes an "arrangement"
for employees adversely affected by the exercise of management's right
to administer a random drug testing program under section 7106(a)(1) of
the Statute, it does not consitute an appropriate arrangement. By
precluding the Agency from giving a urinalysis test, for any purpose,
during the first 60 days of a rehabilitation program, Proposal 14 would
negate the Agency's discretion to determine whether any testing is
warranted to secure and safeguard the Agency's property and employees.
Thus construed, the proposal would preclude testing even on the basis of
reasonable suspicion that an employee is currently using illegal drugs.
We find that such a blanket prohibition on testing excessively
interferes with the Agency's right to determine its internal security
practices and we conclude, therefore, that Proposal 14 is not an
appropriate arrangement. See National Federation of Federal Employees,
Local 1405 and U.S. Army Aviation Systems Command and U.S. Army Troop
Support Command, 33 FLRA 604, 609-10 (1988). Consequently, we conclude
that Proposal 14 is nonnegotiable.
XII. Proposal 15
IFPTE proposes that any employee (who) has been in a drug treatment
program, and then tests positive for illegal drugs, be allowed to
re-enter a second tie instead of being removed from the service.
A. Positions of the Parties
1. The Agency
The Agency states that section 5(d)(2) of Exec. Order No. 12564
requires an agency to remove an employee who is found to use illegal
drugs and does not thereafter refrain from using such drugs. Agency's
Statement at 17. The Agency argues, therefore, that Proposal 15 is
inconsistent with the Executive Order and is nonnegotiable. The Agency
contends that the proposal is also inconsistent with Part II.12(D)(2) of
the Agency's Plan, an Agency regulation for which a compelling need
exists. Id.
2. The Union
The Union explains that Proposal 15 is intended to give an employee a
second chance "to get off drugs." The Union states that "(f)iring the
employee does not solve the problem and sometimes a second chance makes
all the difference in an employee's future." Petition for Review at 3.
B. Analysis and Conclusions
Proposal 15 would prohibit the Agency from discharging an employee
who has been in a rehabilitation program and thereafter is found to use
illegal drugs, including an employee found for a second time to use
illegal drugs, unless the employee is given a second chance to enter
rehabilitation. We find that Proposal 15 is inconsistent with Exec.
Order No. 12564 and FPM Letter 792-19 and, therefore, is nonnegotiable
under section 7117(a)(1) of the Statute.
As noted above, section 5(d) of Exec. Order No. 12564 requires that
agencies "initiate action to remove from the service any employee who is
found to use illegal drugs" and who "refuses to obtain counseling or
rehabilitation through an (EAP)," or who "does not thereafter refrain
from using illegal drugs(.)" Section 5(d)(8) of FPM Letter 792-19
provides that "initiation of an action to remove the employee from the
Federal service is required after a second determination that the
employee uses illegal drugs."
Proposal 15 applies to "any employee (who) has been in a drug
treatment program." The proposal, therefore, applies to employees who
have taken advantage of the opportunities provided under the Agency's
drug testing program to voluntarily enter rehabilitation without first
having been tested as well as to employees who have entered
rehabilitation following a first confirmed positive test demonstrating
that they have used illegal drugs. The proposal precludes the removal
of such employees unless they are given a chance to enter rehabilitation
a second time.
We find that Proposal 15 is inconsistent with section 5(d) of the
Executive Order, which requires that an agency initiate action to remove
an employee who does not refrain from using illegal drugs after
rehabilitation, and with section 5(d)(8) of the FPM Letter, which
requires that an agency initiate action to remove an employee after a
second determination that the employee uses illegal drugs. See our
discussion of Proposal 13, supra, where we found that Proposal 13 would
prevent the Agency from removing an employee who is determined for the
second time to use illegal drugs, and, therefore, is inconsistent with
the Executive Order and the FPM Letter. Accordingly, because Proposal
15 is inconsistent with law and Government-wide regulation, we conclude
that Proposal 15 is nonnegotiable under section 7117(a)(1) of the
Statute.
As we have found that Proposal 15 is inconsistent with law and
Government-wide regulation, we need not consider the other arguments
raised by the Agency.
Finally, inasmuch as we have concluded that Proposal 15 is
inconsistent with law and Government-wide regulation, we do not consider
whether the proposal constitutes an appropriate arrangement under
section 7106(b)(3) of the Statute. See Department of Education, 38 FLRA
at 1083 and 1111.
XIII. Proposal 16
IFPTE proposes that any employee tested, with the results showing a
negative result, will not be required to undergo another test for at
least one (1) year, minimum.
A. Positions of the Parties
1. The Agency
The Agency states that Proposal 16 provides for a minimum 1-year
period of time during which an employee who has already been tested for
use of illegal drugs cannot be tested again. The Agency argues that the
proposal has the same effect as proposals found nonnegotiable by the
Authority under section 7106(a)(1) of the Statute because they required
notice to employees prior to actual drug testing. Agency's Statement at
16. The Agency notes that "(a)s stated by the Authority in Aberdeen I,
31 FLRA 241 (1988), requiring a specific notice period prior to actual
drug testing could provide employees who use drugs with sufficient
notice of the time after which they are to be tested so as to frustrate
the drug testing program's purpose of identifying illegal drug users."
Id. The Agency concludes that the proposal directly interferes with
management's right under section 7106(a)(1) to determine its internal
security practices. Id.
2. The Union
The Union states that under a random drug testing program it is "very
probable" that an employee will have to submit to more than one random
test. Petition for Review at 4. The Union argues that there is no
reason for a second test, "unless some other evidence suggest(s) that
the employee has turned to drug use in the recent past." Id.
B. Analysis and Conclusions
We find that Proposal 16 is nonnegotiable because it directly
interferes with management's right under section 7106(a)(1) of the
Statute to determine its internal security practices.
The literal wording of Proposal 16 would prohibit the Agency from
randomly testing an employee who has once been tested for the use of
illegal drugs, and whose test results were negative, for at least a year
after the first test. The Union explains that the proposal would allow
a second test if there is "other evidence to suggest that the employee
has turned to drug use" again. Petition for Review at 4. Based on the
Union's explanation, which is consistent with the terms of the proposal,
we interpret the proposal as prohibiting the Agency from randomly
testing an employee when that employee has tested negative on a random
test during the prior year, unless there is "other evidence" supporting
a decision to require another test. Restricting the grounds on which
management may administer another random test directly interferes with
management's right to determine its internal security practices. See
Fort Leavenworth, 38 FLRA at 1206-09.
Finally, the Union has not raised an argument that Proposal 16
constitutes an "appropriate arrangement" under section 7106(b)(3) of the
Statute. Consequently, we conclude that Proposal 16 is nonnegotiable.
XIV. Order
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposals 1, 6 and 8. /2/ The petition for review
is dismissed as to Proposals 2, 4, 10, 11, 12, 13, 14, 15 and 16.
FOOTNOTES
(1) The Agency withdrew its allegation of nonnegotiability as to
Proposals 3, 5, 7, and 9. Accordingly, those proposals are not before
us and will not be considered in this decision.
(2) In finding those proposals to be negotiable, we make no judgment
as to their merits.
39 FLRA 1496
39 FLRA NO. 132
AFGE, Local 12 and Dept. of Labor, Washington, D.C., Case No.
0-NG-1880 (Decided March 27, 1991)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DISPUTE
MOOT
PROPOSALS CONTAINING SPECIFIC DATES, WHICH HAVE PASSED
DIGEST NOTES
At issue was a proposal that provided that if the Agency agreed not
to schedule any forloughs before October 16, 1990, the Union would
withdraw its proposal that the Agency rescind forlough notices.
Applying its precedent in cases where the proposal provides specific
dates that have passed, the Authority dismissed the petition as moot.
Because the date in the proposal has passed, and the parties have not
addressed, nor is it otherwise apparent, how compliance with the date
set forth in the proposal could be effected, the proposal is moot.
Case No. 0-NG-1880
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 12
(Union)
and
U.S. DEPARTMENT OF LABOR WASHINGTON, D.C.
(Agency)
DECISION AND ORDER DISMISSING PETITION FOR REVIEW
March 27, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 appeal concerns the negotiability
of one proposal providing that, if the Agency agreed not to schedule any
furloughs before October 16, 1990, the Union would withdraw its proposal
that the Agency rescind furlough notices. For the following reasons, we
find that the Union's petition for review must be dismissed as moot.
II. The Proposal
We agree to withdraw Union proposal #1 (which states that "The
Department shall immediately rescind the furlough notices issued to
bargaining unit employees.") if the Department agrees not to schedule
any furloughs before October 16, 1990.
III. Background
On October 12, 1990, the Union filed a petition for review of a
negotiability issue pursuant to section 7117(c) of the Statute and
section 2424.1 of our Rules and Regulations. The petition for review
concerned the negotiability of the proposal set forth above. On
November 6, 1990, the Authority issued an order to the Union noting that
the deadline in the proposal (October 16, 1990) had elapsed and
requesting the Union to review its appeal to determine whether the
Authority should continue to process the case. The Union did not
respond to that order.
On November 30, 1990, the Authority issued another order to the
Union. The Authority noted that "(s)ince the budget deficit has been
resolved . . . and the October 16th deadline has elapsed, it appears
that the . . . proposal is moot." Order at 1. Accordingly, the
Authority directed the Union to show cause why its petition for review
should not be dismissed for failure to raise negotiability issues which
may be addressed by the Authority.
The Union replied on December 12, 1990, requesting a ruling from the
Authority on the negotiability of the proposal for the following
reasons: (1) although the timeframe referenced in the proposal has
passed, the issue of whether proposals concerning the scheduling of
furlough days are negotiable remains relevant; (2) to dismiss the
appeal on the basis of mootness would allow the Agency to avoid
negotiating over such proposals in the future by alleging that they are
nonnegotiable and stalling negotiations until after the effective date;
(3) a ruling on the proposal would allow the Union to pursue an unfair
labor practice charge against the Agency if similar allegations are made
about similar proposals in the future; and (4) although the budget
issue was resolved without furloughs this year, the Union does not
expect this to always be the case.
On December 20, 1990, the Authority issued an order to the parties
stating that it would resume processing the Union's petition for review,
without ruling at that time on the mootness issue. The Authority's
order of December 20, 1990, permitted the Agency to file a statement of
position and the Union to file a response thereto.
By letter dated December 24, 1990, the Agency filed a submission with
the Authority noting that an appropriation bill had been signed for the
Agency and the furlough notices that had triggered the bargaining had
been rescinded. The Agency stated that it considered the matter to be
moot and requested that the negotiability appeal be dismissed. The
Agency's letter of December 24, 1990, appears to have been submitted
without knowledge of the Authority's order dated December 20, 1990.
In response to the Authority's order of December 20, 1990, the
Agency, by letter of January 22, 1991, restated its position set forth
in its earlier letter that the matter is moot and that the Authority
should dismiss the appeal. The Union did not file a response to the
Agency's statement of position.
IV. Analysis and Conclusions
In National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 35 FLRA 7 (1990) (IRS), the Authority
addressed the use of specific dates in bargaining proposals or
provisions. The provision in IRS provided that specific actions were to
be taken by specific dates, all of which had passed by the time that the
union had filed its response to the agency's statement of position. The
Authority discussed what action it would take in future negotiability
appeals relating to proposals or provisions that contain specific dates.
The Authority stated that
(i)n future cases . . . where proposals or provisions contain
specific dates that may pass before final Authority action, the
parties should address how compliance with the proposal or
provision could be effected. If specific dates have passed and
the parties have not addressed this matter (and it is not
otherwise apparent how compliance could be effected), the
proposals or provisions will be found moot and petitions for
review will be dismissed.
. . . As an alternative to incorporating specific dates in
proposals or provisions, the parties are encouraged to consider
using specific time frames or periods when fashioning proposals.
In doing so, the parties could avoid a finding by the Authority
that the matter proposed to be bargained has become moot by the
passage of time.
Id. at 11.
Applying IRS to this case, we find that the petition for review must
be dismissed as moot. Because the date in the proposal has passed, and
the parties have not addressed, nor is it otherwise apparent, how
compliance with the date set forth in the proposal could be effected,
the proposal is moot. With respect to the Union's concerns as to why
the Authority should rule on the negotiability of the proposal despite
the fact that the timeframe referenced in the proposal has passed, those
concerns can be adequately addressed in a proposal reformulated in
accordance with the Authority's suggestion in IRS.
We note that the decision in IRS was issued on March 8, 1990, and
stated that it would apply to "future cases . . . where proposals or
provisions contain specific dates that may pass before final Authority
action(.)" IRS, 35 FLRA at 11. The proposal in the case before us was
submitted in response to events commencing in August 1990. The Union
filed its petition for review on October 12, 1990, regarding a proposal
with a deadline of October 16, 1990. In these circumstances, consistent
with IRS, we will dismiss the petition for review.
V. Order
The petition for review is dismissed.
39 FLRA 1487
39 FLRA NO. 131
Customs Service, Washington, D.C. and Great Falls, Montana and NTEU,
Chapter 231, Case No. 7-CA-90506 (Decided March 27, 1991)
STATUTE
7116(a)(1), (5) and (8)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
NAMES AND HOME ADDRESSES
DIGEST NOTES
Adopting the Judge's recommendation, 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 represented by the Union.
Case No. 7-CA-90506
U.S. CUSTOMS SERVICE WASHINGTON, D.C. AND U.S. CUSTOMS SERVICE GREAT
FALLS, MONTANA
(Respondents)
and
NATIONAL TREASURY EMPLOYEES UNION CHAPTER 231
(Charging Party)
DECISION AND ORDER
March 27, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding finding that the Respondents violated section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to furnish the
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, denied the Respondents'
cross motion for summary judgment, and recommended that the Respondents
be ordered to take appropriate remedial action. The Respondents 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.
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the U.S. Customs Service, Washington,
D.C., and the U.S. Customs Service, Great Falls, Montana, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, Chapter 231, 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 Statute.
2. Take the following affirmative actions in order to
effectuate the purposes and policies of the Statute:
(a) Furnish the National Treasury Employees Union, Chapter 231,
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 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, Denver Regional Office,
Federal Labor Relations Authority, Denver, Colorado, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
Case No. 7-CA-90506
U.S. CUSTOMS SERVICE WASHINGTON, D.C. and U.S. CUSTOMS SERVICE, GREAT
FALLS, MONTANA
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 231
Charging Party
James H. Morley, Esq. For the Respondent
Hazel E. Hanley, Esq. For the General Counsel
Before: ELI NASH, JR., Administrative Law Judge
Decision
Statement of the Case
The unfair labor practice compliant alleges that Respondent violated
section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by refusing to furnish the Charging
Party, the exclusive representative of certain of Respondents'
employees, the names and home addresses of bargaining unit employees
represented by the Charging Party.
On or about November 14, 1990, Counsel for the General Counsel moved
for summary judgment. The Regional Director transferred the motion to
the Chief Administrative Law Judge, pursuant to section 2423.22(b)(1) of
the Regulations, and it was assigned to the undersigned for disposition
pursuant to section 2423.19(k) and section 2423.22(b)(3) of the
Regulations.
Thereafter, on or about November 21, 1990, Counsel for Respondents'
filed a motion for extension of time to respond to the motion for
summary judgment. Having its request for extension of time granted,
Respondents served its response to the General Counsel's motion for
summary judgment and a cross motion for summary judgment on December 20,
1990. Respondent takes no issue with the assertion that no material
facts are in dispute, but contends that the General Counsel's motion
should be denied and its cross motion for summary judgment granted as a
matter of law based on 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). In the cited case the Court of Appeals for the
District of Columbia Circuit held that the Privacy Act prohibited
disclosure of employees' names and home addressed 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).
Based upon the entire record, and since it appears that no genuine
issues of material facts exist, making summary judgment appropriate as a
matter of law, the undersigned makes the following findings of fact,
conclusions of law, and recommendations. /*/
Findings of Fact
The National Trasury Employees Union, Chapter 231, is the exclusive
representative of certain of Respondent's employees. On or about April
27, 1989 the National Treasury Employees Union, Chapter 231, by
Assistant Counsel Cheryl Solon, requested Don Myhra, U.S. Customs
District Director, to furnish the names and home addresses of bargaining
unit employees covered by it. Solon stated that the "information is
necessary for communication with them on matters of contract
interpretation and bargaining issues." Myhra responded by letter dated
May 11, 1989 in which he said that upon advice of the Agency's Counsel
it would "not release the names and home addresses of bargaining unit
employees in Chapter 231 unless mandated to do so by a court decision."
The names and home addresses of Chapter 231 bargaining unit employees
are normally maintained by Respondents' payroll system in Indianapolis,
Indiana in the regular course of business, are reasonably available, are
necessary for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining, and do not
constitute guidance, advice, counsel, or training for management
officials or supervisors relating to collective bargaining.
Conclusions
Counsel for the General Counsel's motion for summary judgment is
granted and Counsel for Respondents' cross motion for summary judgment
is denied. The controlling case law in this matter is found 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). For reasons more fully set out in Portsmouth Naval
Shipyard the release of bargaining unit employees' names and home
addresses is "necessary" within the meaning of the Statute and is not
"prohibited by law." Respondents as already noted, think that Dep't of
the Treasury, supra, should be followed in this case. In Portsmouth
Naval Shipyard the Authority clearly had the opportunity to apply the
D.C. Circuit's approach in Dep't of the Treasury, but specifically
declined to abide by its holding because, among other things, the D.C.
Circuit, in the Authority's view, failed to harmonize the Federal
Service Labor-Management Relations Statute, the Freedom of Information
Act, and the Privacy Act. In distinguishing the "public interest"
standard relied upon in Dep't of the Treasury, the Authority reiterated
its belief "that the appropriate public interest to be applied in (names
and address) cases should be the facilitation of the collective
bargaining process in the Federal sector." That public interest, the
Authority found, far outweighs the relatively minor privacy interest of
employees in the release of their names and home addresses to their
exclusive representatives.
The request for the names and home addresses of Chapter 231
bargaining unit employees herein satisfies the requirements of section
7114(b)(4) of the Statute. The overall issue here was earlier
considered by the Authority in Farmers Home Administration Finance
Office, St. Louis, Missouri, 23 FLRA 788 (1986), enforced in part and
remanded sub nom. U.S. Department of Agriculture and Farmers Home
Administration Finance Office, St. Louis, Missouri v. FLRA, 836 F.2d
1139 (8th Cir. 1988). Based on that case Respondents most certainly are
required to provide the names and home addresses requested by the
National Treasury Employees Union, Chapter 231, and the failure and
refusal to do so constitutes a violation of section 7116(a)(1), (5) and
(8) of the Statute. See United States Department of the Navy and
Philadelphia Naval Shipyard v. FLRA, 840 F.2d 1131 (3rd Cir. 1988),
enforcing Philadelphia Naval Shipyard, 24 FLRA 37 (1986); U.S.
Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 838
F.2d 229 (7th Cir. 1988), affirming Department of the Air Force, Scott
Air Force BAse, Illinois, 24 FLRA 226 (1986); Department of Health and
Human Services, Social Security Administration v. FLRA, 833 F.2d 1129
(4th Cir. 1987), affirming Department of Health and Human Services,
Social Security Administration, 24 FLRA 543 (1986); Department of
Health and Human Services, Social Security Administration and Social
Security Administration Field Operations, New York Region, 24 FLRA 583
(1986); Department of Health and Human Services, Social Security
Administration, 24 FLRA 600 (1986).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that U.S. Customs Service, Washington, D.C. and U.S.
Customs Service, Great Falls Montana, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, Chapter 231, 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 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, Chapter 231,
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 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 VII, Federal
Labor Relations Authority, Denver, Colorado, 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., January 31, 1991.
ELI NASH, JR.
Administrative Law Judge
FOOTNOTES
(*) The General Counsel also filed a motion and brief in opposition
to Respondents' cross motion for summary judgment, dated December 31,
1990 which also has been considered in the recommendation herein. Since
Respondents made no argument that the collective bargaining agreement
operated as a waiver to Chapter 231's right to obtain the names and home
addresses herein, it is unnecessary for the undersigned to rule on the
General Counsel's assertion that no waiver existed.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, Chapter 231, 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 Treasury Employees Union, Chapter 231,
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, Denver
Regional Office, whose address is: 1244 Speer Boulevard, Suite 100,
Denver, Colorado, 80204, and whose telephone number is (303) 844-5224.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, Chapter 231 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 the rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, Chapter 231,
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 VII,
whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado
80204, and whose telephone number is: (303) 844-5224.
39 FLRA 1477
39 FLRA NO. 130
U.S. Patent and Trademark Office and Patent Office Professional
Association, Case No. 3-CA-50396 and 60086 (31 FLRA 952) (Decided March
27, 1991)
STATUTE
7131(d)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REMAND, U.S. COURT OF APPEALS
CHANGES IN GRANTING OFFICIAL TIME
OFFICIAL TIME
DIGEST NOTES
The Court granted the petition for review with respect to the
Authority holding in the earlier case concerning the modifying of the
practice of granting official time without affording the Union and
opportunity to bargain. The Court concluded that the Authority had
improperly found a Union waiver as to its right to bargain over proposed
changes in official time for representational activities and remanded
the matter for further proceedings consistent with its opinion.
Applying the Court's decision that the Union's actions did not waive
its right to bargain, as much as initiate it, the Authority concluded
that the Respondent unilaterally changed established past practice
regarding the granting of offical time for Union representatives engaged
in representational activities without affording the Union an
opportunity to bargain over the substance and the impact and
implementation of the changes. In reaching its conclusion, the
Authority considered questions raised by the Court. Of note was the
Authority's response to the question concerning whether the dispute
raised an arbitral issue under the parties agreement. The Authority
stated that even if it did, under 7116(d), the Union had an option of
raising the issue as a ULP or as a grievance. The Union elected a ULP.
In view of its election, the Union cannot be required to pursue
arbitration to resolve the dispute over official time.
Case Nos. 3-CA-50396 and 3-CA-60086 (31 FLRA 952 (1988))
U.S. PATENT AND TRADEMARK OFFICE
(Respondent)
and
PATENT OFFICE PROFESSIONAL ASSOCIATION
(Charging Party/Union)
DECISION AND ORDER ON REMAND
March 27, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
Patent Office Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir.
1989). In the proceedings before the Authority, the Union had charged
that the Respondent had violated the Federal Service Labor-Management
Relations Statute (the Statute) by: (1) failing to comply with an
interest arbitration award allocating official time for Union
representatives; (2) unilaterally changing the continuation-in-service
requirement for employees in law school; and (3) modifying the practice
of granting official time without affording the Union an opportunity to
bargain. The Authority, in agreement with the Administrative Law Judge,
found that the Respondent violated section 7116(a)(1), (5), (6) and (8)
of the Statute by failing to comply with the arbitrator's award and by
failing to notify the Union and bargain over the impact and
implementation of its decision to change the method of computing the
time period for continuation-in-service agreements. The Authority found
no further violations by the Respondent. U.S. Patent and Trademark
Office, 31 FLRA 952 (1988).
The Union petitioned for review of the Authority's decision. The
court granted the petition for review with respect to the claim
concerning bargaining over alleged changes in the granting of official
time. The court denied the petition for review as to all other claims.
The court concluded that the Authority had improperly found a Union
waiver as to its right to bargain over proposed changes in official time
for representational activities. Accordingly, the court remanded the
matter of the official time claim to the Authority for further
proceedings consistent with its opinion.
The issue on remand is whether the Respondent unilaterally changed
established past practice regarding the granting of official time for
Union representatives engaged in representational activities without
affording the Union an opportunity to bargain over the substance and the
impact and implementation of the change in violation of section
7116(a)(1) and (5) of the Statute, as alleged. The parties did not file
any supplemental statements of position after the court's decision. /*/
We conclude that the Respondent failed and refused to bargain with the
Union over changes in conditions of employment in violation of section
7116(a)(1) and (5) of the Statute.
II. History of the Case as It Relates to Official Time for
Representational Activities
A. Background
In 1972 the Union and the Respondent executed a collective bargaining
agreement that contained provisions relating to official time for
processing grievances and pursuing other representational activities.
Under the parties' 1972 collective bargaining agreement, Union officials
were limited to no more than 8 hours a week to process grievances, but
in practice almost all claims for official time in excess of 8 hours and
for purposes other than the processing of grievances were granted by the
Respondent.
On June 10, 1981, the Respondent informed the Union by memorandum
that, effective July 1, 1981, the specific terms of the 1972 agreement
with respect to official time would be enforced. The Union filed a
grievance over this proposed change, and the grievance was settled by
the execution of a Memorandum of Understanding (MOU) on December 22,
1981. The MOU provided that: the Respondent would withdraw its
memorandum announcing its intention to enforce the 1972 agreement
provisions concerning official time, the Union would withdraw its
grievance, and the parties recognized that the issue of official time
was bargainable.
When negotiations for a successor agreement to the 1972 agreement
were unsuccessful, the parties were directed by the Federal Service
Impasses Panel to engage in mediation-arbitration. On April 10, 1984,
the arbitrator issued a decision on ground rules to govern the parties'
negotiations. The decision included provisions covering bargaining over
the impact and implementation of future management changes. The Union's
exceptions to the award were denied in Patent and Trademark Office and
Patent Office Professional Association, 15 FLRA 990 (1984). On May 20,
1985, the arbitrator issued a final decision ordering the parties to
continue to bargain in accordance with the relevant terms of the April
10 ground rules award.
On June 7, 1985, the Respondent issued a memorandum informing the
Union that the Respondent no longer viewed itself subject to the
provisions of the ground rules award that precluded management from
unilaterally implementing certain changes. The Respondent advised the
Union that it would begin enforcing the provisions of the parties' 1972
agreement concerning official time for representational activities and
that any past practices that modified the 1972 agreement would no longer
be considered effective. The memorandum notified the Union that the
changes would be implemented on July 7, 1985.
On or about June 18, 1985, Union representatives met with Agency
officials and requested that the changes concerning official time be
deferred until questions about their legality were resolved. The
Respondent refused the Union's request and implemented the changes on
July 7, 1985. These changes remained in effect until May 1, 1986, when
a new basic collective bargaining agreement became effective.
B. Administrative Law Judge's Decision
The Judge stated the issue to be whether the changes made in July
1985 concerning official time for representational activities violated
section 7116(a)(1) and (5) because they were unilaterally implemented.
The Judge rejected the Respondent's argument that there had been no
changes concerning official time for representational activities by
Union representatives. The Judge found that, for many years, and since
the parties' 1972 collective bargaining agreement, the Respondent had
granted official time for both grievance and non-grievance matters and
that such policy included allowing official time for the preparation of
grievances, meeting with management, and litigation involving employment
conditions. The Judge refused to credit the Respondent's contention
that its conduct merely constituted lax enforcement of the 1972
collective bargaining agreement as to official time. To the contrary,
the Judge concluded that the Respondent's conduct had become an
established past practice and that the Respondent in July 1985 had
changed this established past practice.
Noting that section 7131 of the Statute provides for the granting of
official time to employees engaged in representational activities, the
Judge held that "unless otherwise excused, Respondent was obliged to
bargain with the Union herein when it changed the established practice
concerning the granting of official time to employees who represented
the Union while engaged in representational activities." 31 FLRA at 978.
However, the Judge found that the Respondent's obligation to bargain
was "excused." Id. The Judge determined that the Union's request to
defer implementation of the changes. Accordingly, the Judge recommended
dismissal of the allegation that the Respondent violated section
7116(a)(1) and (5) by unilaterally implementing the changes concerning
official time for representational activities.
C. Authority's Decision
The Union and the General Counsel filed exceptions to the Judge's
failure to find that the Respondent violated the Statute by its changes
concerning official time for representational activities. On review of
the record and the Judge's decision, the Authority agreed with the
Judge's finding that the Respondent did not violate the Statute by
implementing changes pertaining to official time for representational
activities. 31 FLRA at 954.
D. Court's Decision
The Union filed a petition for review of the Authority's decision in
the U.S. Court of Appeals for the District of Columbia Circuit. The
court granted the petition for review as it pertained to official time
for representational activities. The court agreed with the Union's
claim that the Authority improperly found that the Union waived any
right to bargain over proposed changes in official time for
representational activities. In the court's view, the Union's "protest
against the change and its inquiry into legal remedies did not waive its
right to bargain, as much as initiate it." 872 F.2d at 455.
Accordingly, the court reversed and remanded the Authority's
determination that the Union had waived any right to bargain over the
changes concerning official time.
The court advised that, on remand, the Authority should consider the
following questions when determining whether the Respondent violated the
Statute by implementing changes pertaining to official time for
representational activities:
Was there any collective bargaining agreement in effect at the
time when the alleged change was implemented? If the agreement
was in effect, and the agency's proposed action was consistent
with its terms (but arguably inconsistent with the parties'
practices), did this constitute a "change" in a condition of
employment over which the union had a right to bargain? Finally,
did the dispute over official time raise and arbitral issue under
the parties' agreement and, if so, was the union required to
pursue arbitration in seeking a resolution of its grievance?
Id. at 456.
III. Analysis and Conclusions
Applying the court's decision that the Union's actions "did not waive
its right to bargain, as much as initiate it(,)" 872 F.2d at 455, and
based on the findings and conclusions of the Judge, we conclude that the
Respondent unilaterally changed established past practices regarding the
granting of official time for Union representatives engaged in
representational activities without affording the Union an opportunity
to bargain over the substance and the impact and implementation of the
changes. We find that, by this action, the Respondent violated section
7116(a)(1) and (5) of the Statute, as alleged in the complaint.
Accordingly, we will issue an order appropriately remedying the
violation for the period during which the changes were in existence:
July 7, 1985, to May 1, 1986, the date on which a new collective
bargaining agreement between the parties became effective.
We agree with the Judge's finding that since the parties' 1972
collective bargaining agreement became effective until the Respondent
took the actions at issue here, the Respondent had granted official time
for both grievance and non-grievance matters and that such policy
included allowing official time for the preparation of grievances,
meeting with management, and litigation involving employment conditions.
We also agree with the Judge's conclusion that the provision of
official time for Union representatives engaged in representational
activities constitutes a condition of employment and that the
Respondent's manner of providing official time had become a condition of
employment by established past practice. We further agree with the
Judge that "unless otherwise excused, Respondent was obliged to bargain
with the Union herein when it changed the established practice
concerning the granting of official time to employees who represented
the Union while engaged in representational activities." 31 FLRA at 978.
Applying the court's decision that the Union by its actions
"initiate(d)" bargaining, 872 F.2d at 455, we conclude that the
Respondent's obligation to bargain was not "otherwise excused," 31 FLRA
at 978, and we find that the Respondent changed conditions of employment
without the necessary bargaining with the Union. We hold that, by this
action, the Respondent violated section 7116(a)(1) and (5) of the
Statute, and we will issue an appropriate remedial order.
In reaching this conclusion, we have considered the questions raised
by the court. Our review of the record indicates that the parties' 1972
basic collective bargaining agreement was in effect at the time when the
changes were implemented. For example, in the June 7, 1985, memorandum
announcing the changes, the Respondent's Acting Commissioner of Patents
and Trademarks stated as follows: "At the May 10 hearing, the
Arbitrator recounted the history of PTO's attempt since 1981 to obtain a
successor agreement to the 1972 agreement still in effect."
In finding a violation, we conclude that the Respondent changed
conditions of employment over which the Union had a right to bargain,
notwithstanding the Respondent's claim that its actions constituted
strict enforcement of the official time provisions of the 1972 basic
agreement. We have specifically held that an agency may not change
unilaterally a condition of employment established through past practice
even if the condition established by practice differs from the express
terms of the parties' collective bargaining agreement. U.S. Department
of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567,
570 (1990).
Finally, even if the dispute over official time raised an arbitral
issue under the parties' agreement, we note that, under section 7116(d)
of the Statute, the Union had an option of raising the issue as an
unfair labor practice under the Statute or as a grievance under the
negotiated grievance procedure, but not under both procedures. The
Union elected to raise the issue as an unfair labor practice under the
Statute. The Union was not required to raise the issue as a grievance
under the negotiated grievance procedure and, in view of its election,
cannot be required to pursue arbitration to resolve the dispute over
official time.
Consistent with decisions of the Authority, our order will include
the remedy we have found the Statute requires for wrongful denials of
official time under section 7131(d) of the Statute. We have
specifically acknowledged that when official time authorized consistent
with section 7131(d) is wrongfully denied and the covered activities are
thereafter performed on nonduty time, section 7131(d) of the Statute
entitles the employee to be paid at the appropriate straight-time rate
for the amount of time that should have been official time. U.S.
Department of Commerce, National Oceanic and Atmospheric Administration,
National Weather Service and National Weather Service Employees
Organization, 36 FLRA 352, 358 (1990) (citing Wright-Patterson Air Force
Base, Ohio, 2750th Air Base Wing and American Federation of Government
Employees, Local No. 1138, 23 FLRA 390 (1986) and U.S. Department of
Justice, Bureau of Federal Prisons, Federal Correctional Institution,
Seagoville, Texas and American Federation of Government Employees,
Council of Prison Locals, Local No. 1637, 22 FLRA 56 (1986)) Similarly,
if the employee used leave to perform duties that would otherwise have
been performed on official time, such leave should be restored.
IV. Order
Pursuant to section 2423.29 of our Rules and Regulations and section
7118 of the Statute, we order that the U.S. Patent and Trademark Office
shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of
bargaining unit employees by changing its practices regarding the
granting of official time for Union representatives engaged in
representational activities without first notifying the Patent
Office Professional Association, the exclusive representative of
certain of its employees, and affording it an opportunity to
bargain about the decision to change such conditions of
employment.
(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 action in order to
effectuate the purposes and polices of the Statute:
(a) Make whole any bargaining unit employees who were adversely
affected by its change in practices regarding the granting of
official time for Union representatives engaged in
representational activities between July 7, 1985, and May 1, 1986,
including the restoration of any leave used to perform
representational activites if those activities would otherwise
have been performed on official time but for its change in
practices regarding the granting of official time for Union
representatives engaged in representational activities.
(b) Compensate at the appropriate straight-time rates any
bargaining unit employees who performed representational activites
on nonduty time between July 7, 1985, and May 1, 1986, if those
activities would otherwise have been performed on official time
but for its change in practices regarding the granting of official
time for Union representatives engaged in representational
activities.
(c) Post at its facilities in Washington, D.C., copies of the
attached Notice on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Commissioner of
the U.S. Patent and Trademark Office 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, Washington,
D.C., in writing, within 30 days from the date of this Order, as
to what steps have been taken to comply.
FOOTNOTES
(*) The Union filed a motion to remand the case to an administrative
law judge for receipt of additional evidence and issuance of a
supplemental decision. We deny the motion. We find the record
sufficient to resolve this case consistent with the court's remand.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change conditions of employment of
bargaining unit employees by changing our practices regarding the
granting of official time for Union representatives engaged in
representational activities without first notifying the Patent Office
Professional Association, the exclusive representative of certain of our
employees, and affording it an opportunity to bargain about the decision
to change such 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.
WE WILL make whole any bargaining unit employees who were adversely
affected by our change in practices regarding the granting of official
time for Union representatives engaged in representational activities
between July 7, 1985, and May 1, 1986, including the restoration of any
leave used to perform representational activities if those activities
would otherwise have been performed on official time but for our change
in practices regarding the granting of official time for Union
representatives engaged in representational activities.
WE WILL compensate at the appropriate straight-time rates any
bargaining unit employees who performed representational activities on
nonduty time between July 7, 1985, and May 1, 1986, if the activities
would otherwise have been performed on official time but for our change
in practices regarding the granting of official time for Union
representatives engaged in representational activities.
(Agency)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Washington, D.C. Regional Office, 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.
39 FLRA 1472
39 FLRA NO. 129
Dept. of the Army, Lexington Blue Grass Army Depot, Lexington,
Kentucky and Ronald D. Lewis, Case No. 4-CA-80011 (38 FLRA 647) (Decided
March 26, 1991)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REQUEST FOR RECONSIDERATION
NEWLY AVAILABLE FACTS
STATUS QUO ANTE REMEDY
ADVERSE IMPACT
DIGEST NOTES
In the earlier decision, the Authority found that the Respondent
violated 7116(a)(1) and (5) by implementing a reorganization and
reduction-in-force without notifying the Union as to when it would be
implemented and found that a status quo ante remedy was appropriate.
The Respondent contends in its request for reconsideration that newly
available facts show that reconstruction of the status quo ante is
practically impossible and would result in useless personnel trubulence.
The Authority denied the request for reconsideration. It noted that
the arguments raised were previously argued by the Agency and rejected.
The Authority found that nothing contained in the Agency's supporting
documents convinces them that the original determination as to those
assertions was in error. Moreover, the Authority does not see the
relevance of the fact that there was a recent reorganization and RIF
that apparently affected some of the employees involved in the case.
The Authority also rejected the contention that the remedy would
disrupt its operation in support of Operation Desert Shield. First, at
the time of the Agency's motion, there was no indication that Operation
Desert Shield would be of long duration; indeed, that military
operation has since been terminated. "We will not revoke and otherwise
appropriate remedy based merely on a plea of temporary exigencies." "In
our view, this type of contention is best left to the compliance stage
of our proceedings."
Case No. 4-CA-80011 (38 FLRA 647 (1990))
U.S. DEPARTMENT OF THE ARMY LEXINGTON BLUE GRASS ARMY DEPOT
LEXINGTON, KENTUCKY
(Respondent)
and
RONALD D. LEWIS
(An Individual)
ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR STAY
March 26, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's motion for
reconsideration of our decision in U.S. Department of the Army,
Lexington-Blue Grass Army Deport, Lexington, Kentucky and Ronald D.
Lewis, 38 FLRA 647 (1990). The Agency also requested that the decision
be stayed pending disposition of its motion. /*/ Because the Agency
fails to establish that extraordinary circumstances exist that would
warrant reconsideration of our decision, we will deny the motion.
II. The Decision in 38 FLRA 647
In our decision in 38 FLRA 647, the Authority adopted the
Administrative Law Judge's recommendation that the Respondent violated
section 7116(a)(1) and (5) by implementing a reorganization and
reduction-in-force (RIF) in 1987 without notifying the Union as to when
the reorganization would be implemented and RIF notices would be issued,
despite the Union's written requests to provide advance notice of such
changes in conditions of employment, and by refusing to bargain with the
Union concerning the impact and implementation of the reorganization and
RIF.
We found a status quo ante remedy to be appropriate. Applying the
test set forth in Federal Correctional Institution, 8 FLRA 604 (1982),
we concluded that the Respondent had not supported with specific
allegations or evidence its assertion that such a remedy would disrupt
its operations. The Authority stated that the Respondent's assertion
that a status quo ante remedy would create "personnel turbulence" and
"an administrative mess" provided an insufficient basis for finding that
such a remedy would disrupt its operations or impair the efficiency and
effectiveness of operations. The Authority also rejected the argument
that the remedy would require a repetition of the Commercial Activity
study process or a rebidding of the contracts, because the remedy
required only a return to the status quo before the reorganization and
RIF, events that occurred well after the awarding of the contract.
III. Position of the Parties
A. The Agency
The Agency contends that newly available facts establish
extraordinary circumstances that require the reconsideration of the
propriety of a status quo ante remedy. Specifically, Civilian Personnel
Director, Barbara G. Kirkpatrick, provides detailed information in an
affidavit as to the results of the 1987 reorganization and RIF and
states that the "reconstruction of the status quo ante is practically
impossible" and "would only result in useless personnel turbulence,
without benefit to most of the employees affected, and serious
impairment of efficient and effective Depot operations." Motion for
Reconsideration, Exhibit 1 at 2. The Commander of the Agency, William
R. Humbaugh, asserts in an affidavit that "the Depot has been ordered to
ship prodigious amounts of military supplies and ammunition to South
West Asia in support of Operation Desert Shield(,)" and that these
shipments are "in excess of what the Depot normally ships for an entire
year." Id., Exhibit 2 at 1. He further asserts that "(i)mplementing the
status quo ante would result in placing employees in positions not
currently necessary to support Depot operations, particularly operations
in support of Operation Desert Shield. It would seriously disrupt the
accomplishment of this Depot's mission in support of Operation Desert
Shield." Motion for Reconsideration, Exhibit 2 at 2.
The Agency claims that these facts, which were not available at the
time of the hearing, require "a different result in the balancing of the
nature and circumstances of the violations against the degree of
disruption in Government operations." Motion for Reconsideration at 1.
The Agency asserts that the facts demonstrate that "the status quo ante
could not practically be re-established, that any re-establishment would
cause extensive personnel turbulence, including impacting on a
subsequent reorganization and reduction-in-force," that there has been
little adverse effect on bargaining unit employees, that the Agency met
its bargaining obligation to negotiate in a subsequent reorganization
and RIF, and "that the status quo ante remedy would now seriously
disrupt Depot operations in support of Operation Desert Shield." Id. at
1-2.
In the alternative, the Agency requests that a retroactive bargaining
order be issued.
B. General Counsel
The General Counsel asserts that the Agency's motion for
reconsideration should be denied. The General Counsel argues that the
Agency is simply attempting to relitigate the Respondent's contention
that a status quo ante remedy would result in "useless personnel
turbulence." General Counsel's Opposition at 4. In addition, the
General Counsel argues that Commander Humbaugh's assertion as to the
effect of the status quo ante remedy consists of unsupported statements
that lack specific example or proof. The General Counsel notes that
most of the employees affected by the reorganization and RIF are working
in maintenance jobs and asserts that the Agency has not established how
returning these employees to their previous positions would disrupt its
mission.
C. Charging Party
The Charging Party argues that the Agency is "attempting to reargue
the case, thus stalling the inevitable." Charging Party's Response at 1.
It contends that the Agency has made only vague assertions that the
status quo ante would disrupt the Agency's mission, noting that the
Agency failed to specify the positions involved and how such a remedy
would preclude employees from being assigned in support of Operation
Desert Shield or from making the necessary shipments for that operation.
The Charging Party argues that "(t)here were sufficient personnel and
job titles under the old structure to support this temporary military
operation(.)" Id. at 2. The Charging Party also argues that Commander
Humbaugh has emergency powers to detail employees to meet the Agency's
mission if he needs personnel to meet a national emergency. Id. at 1.
IV. Analysis and Conclusions
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 38 FLRA 647.
Insofar as the Agency's argument is premissed on its contentions that
a return to the status quo would cause extensive "personnel turbulence"
or that the adverse effect on unit employees was minimal, these
arguments were previously raised and argued by the Agency and were
rejected. Nothing contained in the Agency's supporting documents
convinces us that our original determination as to these assertions was
in error. Moreover, we do not see the relevance of the fact that there
was a recent reorganization and RIF that apparently affected some of the
employees involved in this case. The Agency has not explained how the
recent reorganization that involved 477 employees in two facilities
affected the 47 bargaining unit employees covered by our order in 38
FLRA 647. Further, the fact that the Agency may have satisfied its
bargaining obligations with regard to its subsequent actions, a matter
not before us, has no bearing on the issue of what it must do to remedy
its earlier failure to bargain. Thus, these arguments constitute
nothing more than disagreement with the Authority's decision in 38 FLRA
647 and an attempt to relitigate the merits of that case. As such,
these arguments do not constitute extraordinary circumstances within the
meaning of section 2429.17 of our Rules and Regulations. See, for
example, Veterans Administration, Veterans Administration Medical
Center, Muskogee, Oklahoma, 29 FLRA 51, 54 (1987).
Finally, the Agency's argument that a status quo ante remedy would
disrupt its operations in support of Operation Desert Shield also fails
to establish extraordinary circumstances within the meaning of our Rules
and Regulations. First, at the time of the Agency's motion, there was
no indication that Operation Desert Shield would be of long duration;
indeed, that military operation has since been terminated. We will not
revoke an otherwise appropriate remedy based merely on a plea of
temporary exigencies. In our view, this type of contention is best left
to the compliance stage of our proceedings.
V. Order
The Respondent's request for reconsideration of the Authority's
Decision and Order in 38 FLRA 647 is denied.
FOOTNOTES
(*) After review of the Agency's motion, it was determined that a
stay of our decision pending resolution of the motion was not warranted.
39 FLRA 1461
39 FLRA NO. 128
Dept. of the Air Force, 3800 ABW/AU, Maxwell Air Force Base, Alabama
and AFGE, Local 997, Case No. 4-CA-80762 (Decided March 26, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN
SMOKING POLICY
MID-TERM REOPENER
WAIVER
DIGEST NOTES
The complaint alleged a violation of 7116(a)(1) and (5) by the
refusal to bargain over a Union-initiated proposal concerning smoking
policy raised during negotiations conducted by the parties pursuant to a
mid-term reopener provision in the agreement. Respondent asserted that
the Union waived its right to negotiate because it had not presented a
timely request to bargain on the subject when the Respondent earlier
implemented the Air Force "anti-smoking action plan."
The Authority specifically adopted the Judge's finding that the
Union's smoking policy proposal was submitted during mid-term bargaining
that was "specifically sanctioned" by the parties agreement. The
Authority found that the mid-term reopener provision allows negotiations
on all subjects in the same manner as basic contract negotiations over a
new contract, and would therefore encompass even matters that had been
waived by a party under the current agreement.
Case No. 4-CA-80762
DEPARTMENT OF THE AIR FORCE 3800 ABW/AU MAXWELL AIR FORCE BASE,
ALABAMA
(Respondent)
and
AMERICAN FEDERATION OF GOVERMENT EMPLOYEES AFL-CIO LOCAL 997
(Charging Party/Union)
DECISION AND ORDER
March 26, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge. The General Counsel filed an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to bargain over a Union-initiated proposal
concerning smoking policy raised during negotiations conducted by the
parties pursuant to a mid-term reopener provision in their collective
bargaining agreement. The Respondent asserted that the Union waived its
right to negotiate concerning the smoking policy because the Union had
not presented a timely request to bargain on the subject when the
Respondent earlier implemented the Air Force's "Anti-Smoking Action
Plan."
Relying on Authority precedent, the Judge found that the Union had
not clearly or unmistakably waived its right to bargain concerning
smoking policy. In this regard, the Judge found that neither the
parties' contract nor its bargaining history contains any reference to
smoking policy, and that "(t)he Union's proposal, although submitted
during midterm bargaining specifically sanctioned by the contract's
reopener provision, would have been mandatorily negotiable at any time
unless there was a waiver." Judge's decision at 3-4 (emphasis in
original). The Judge concluded that although the Union may have chosen
not to seek negotiations earlier, in immediate response to the Air
Force's plan, "nothing in its conduct evinced an intention to waive its
bargaining rights during the contract term, any more than an intention
to waive its right to bargain over smoking policy for all time." Id.
Accordingly, the Judge found that the Respondent, having been obligated
to bargain, violated section 7116(a)(5) and (1) by refusing to do so.
In its exceptions, the Respondent reiterates its contention that the
Union had clearly waived its right to bargain on the Air Force's smoking
policy during the life of the contract when it failed to submit a timely
bargaining request at the time the Air Force's plan was implemented,
citing to the Authority's decision in Internal Revenue Service, 29 FLRA
162 (1987). The Respondent does not contend that the mid-term reopener
provision itself limited negotiations.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviwed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm those rulings. We adopt the Judge's findings,
conclusions and recommended Order, as modified.
We specifically adopt the Judge's finding that the Union's smoking
policy proposal was submitted during mid-term bargaining that was
"specifically sanctioned" by the parties' contract reopener provision.
In this regard, we find that the contract's broad reopener provision
allows either party, "to reopen, to amend and/or to modify (the)
Agreement(,)" Joint Exhibit No. 3, and expresses no limit on what
matters can be raised. Thus, we find that the mid-term reopener
provision allows negotiations on all subjects in the same manner as
basic contract negotiations over a new agreement, and would therefore
encompass even matters that had been waived by a party under the current
agreement. Accordingly, we conclude that the Union's proposal was
bargainable pursuant to the broad mid-term reopener provision of the
parties' contract. In view of our conclusion that bargaining over the
Union proposal was authorized under the mid-term reopener provision, we
find it unnecessary to pass on the Judge's finding that the proposal
would have been mandatorily negotiable at any time during the contract's
term.
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Department of the Air Force, 3800
ABW/AU, Maxwell Air Force Base, Alabama, shall:
1. Cease and desist from:
(a) Refusing to bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive
representative of its employees, about a proposal concerning
smoking policy raised by that exclusive representative during
negotiations conducted pursuant to a mid-term reopener provision
in the collective bargaining agreement.
(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, bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive
representative of its employees, about a proposal concerning
smoking policy raised by that exclusive representative during
negotiations conducted pursuant to a mid-term reopener provision
in the collective bargaining agreement.
(b) Post at all 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 Commanding Officer, 3800
ABW/AU, Maxwell Air Force Base, Alabama, 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 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. NOTICE TO ALL EMPLOYEES AS ORDERED BY THE
FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive representative
of our employees, about a proposal concerning smoking policy raised by
that exclusive representative during negotiations conducted pursuant to
a mid-term reopener provision in the collective bargaining agreement.
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, bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive representative
of our employees, about a proposal concerning smoking policy raised by
that exclusive representative during negotiations conducted pursuant to
a mid-term reopener provision in the collective bargaining agreement.
(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, Atlanta Region, Federal Labor Relations Authority, whose
address is: 1371 Peachtree Street, N.E., Suite 122, Atlanta, Georgia
30367 and whose telephone number is: (404) 347-2324.
Case No. 4-CA-80762
DEPARTMENT OF THE AIR FORCE 3800 ABW/AU, MAXWELL AIR FORCE BASE,
ALABAMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 997
Charging Party
Richard S. Jones, Esquire For the General Counsel
Major Phillip G. Tidmore, Esquire For the Respondent
Before: JESSE ETELSON, Administative Law Judge
DECISION
Statement of the Case
The Respondent refused to negotiate over a proposal concerning
employee smoking policy submitted by the Charging Party (the Union)
during negotiations conducted by the parties pursuant to a provision in
their collective bargaining agreement for midterm reopening. The unfair
labor practice complaint on which this case is based alleges that this
refusal violated section 7116(a)(5) and (1) of 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. (the Statute). /1/ The Respondent,
although initially it denied refusing to negotiate over the Union's
smoking policy proposal, defends the case solely on the basis that the
Union previously waived its right to bargain over this subject.
A hearing was held on March 21, 1989, in Montgomery, Alabama. Based
on the entire record and the briefs, I make the following findings of
fact, conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of certain employees of the
Respondent in an appropriate bargaining unit. The Respondent and the
Union are parties to a collective bargaining agreement which has been in
effect since 1980, remaining so during the events giving rise to this
case. The agreement is silent on smoking policy.
In July 1986, the Respondent's labor relations officer, Bettye J.
Johnson, sent to Union President C. E. Lanthrip, Sr., a copy of an
"Anti-Smoking Action Plan" that had recently been approved by the
Secretary of the Air Force. In substance, the "Plan" outlined an
educational strategy to discourage smoking and to aid smokers in
quitting. The only references in the "Plan" to the prospect of
mandatory restrictions on smoking were a general statement that
commanders were to designate smoking and nonsmoking areas when possible
a statement that existing guidelines on smoking in Air Force facilities
would be rigidly enforced and modified as necessary to comply with a
Department of Defense directive, and a specific prohibition of smoking
during military training. /2/ Johnson's covering letter stated that the
target date for "total compliance" with the plan was September 15, 1986.
The Union did not react to the implementation of the plan until
November 1986, when, having received complaints from employees
concerning the ban of smoking in certain areas, it requested
negotiations on smoking policy. The Respondent rejected this request as
untimely and the Union then let the matter rest.
In November 1987, pursuant to a midterm reopener provision of the
collective bargaining agreement, the Respondent gave timely notice of
intent to reopen the agreement for modification. The parties agreed on
ground rules and began substantive negotiations in April 1988. The
Union submitted a written proposal on smoking policy. Management,
through Labor Relations Office Johnson, declined to bargain over the
proposal, taking the position that the Union's failure to make a timely
request to negotiate over this subject in 1986 constituted a waiver of
its right to negotiate over it until the expiration of the collective
bargaining agreement.
Discussion and Conclusions
The Respondent concedes that but for the asserted waiver by the
Union, it would be obligated to bargain over the Union's proposal.
Waiver being the sole issue, I find that it has not been established and
that the Respondent was obligated to negotiate.
It appears to be the Respondent's theory that the events of 1986 were
the legal equivalent of contract negotiations over the subject of
smoking policy (Resp. Br. at 3). However, no smoking policy
negotiations, whether they be characterized as contract negotiations,
midterm negotiations, or ad hoc negotions, occurred. Assuming that the
Union waived its right to bargain over the "Anti-Smoking Action Plan"
that the Respondent announced and implemented in 1986 (a question which
is not before me), it does not follow that the Union forfeited its right
subsequently to make new proposals on the same subject.
The Respondent seems to concede that the effect of the Union's
asserted waiver will have dissipated when the contract expires. It
passes understanding, however, in what respect the obligation to bargain
over this subject is linked to the contract. Neither the contract nor
its bargaining history contains, as far as the record here shows, any
reference to smoking policy. The Union's proposal, although submitted
during midterm bargaining specifically sanctioned by the contract's
reopener provision, would have been mandatorily negotiable at any time
unless there was a waiver. Internal Revenue Service, 29 FLRA 162,
165-66 (1987). The Union may have chosen not to seek negotiations in
1986 in immediate response to the "Plan". But nothing in its conduct
evinced an intention to waive its bargaining rights during the contract
term, any more than an intention to waive its right to bargain over
smoking policy for all time. /3/ There was no waiver, and the
Respondent, having been obligated to bargain, violated section
7116(a)(5) and (1) by refusing to do so. Accordingly, I recommend the
following Order.
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 the Air Force, 3800 ABW/AU, Maxwell
Air Force Base, Alabama, shall:
1. Cease and desist from:
(a) Refusing to bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive
representative of its employees, concerning smoking policy.
(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) Upon request, bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, concerning smoking
policy.
(b) Post at Maxwell Air Force Base, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Commanding Officer and shall be posted and maintained for 60
consecutives 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, 1371 Peachtree St. N.E., Suite 736,
Atlanta, GA 30367 in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued Washington, D.C., November 22, 1989
JESSE ETELSON
Administrative Law Judge
FOOTNOTES
(1) Section 7116(a)(5) makes it an unfair labor practice to "refuse
to consult or negotiate in good faith with a labor organization as
required by this chapter." Section 7116(a)(1), involved here only
derivatively, makes it an unfair labor practice to "interfere with,
restrain, or coerce any employee in the exercise by the employee of any
right under this chapter." The employee right implicated here is the
right to engage in collective bargaining, guaranteed in section 7102.
(2) Presumably, the smoking prohibitions during military training did
not have any foreseeable impact on bargaining unit employees.
(3) Since an effective waiver of such a right must be clear and
unmistakable (U.S. Army Corps of Engineers, Kansas City District, Kansas
City, Missouri, 31 FLRA 1231, 1236 (1988)), it is manifestly the kind of
waiver that must be intentional. See Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 408 (1983).
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, the exclusive representative
of its employees, concerning smoking policy.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their righs assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, bargain with the American Federation of
Government Employees, AFL-CIO, Local 997, concerning smoking policy.
(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 St., N.E., Suite 736, Atlanta, GA
30367, and whose telephone number is: (404) 347-2324.
39 FLRA 1456
39 FLRA NO. 127
Federal Employees Metal Trades Council and Dept. of the Navy, Long
Beach Naval Shipyard, Long Beach, California (Howard, Arbitrator), Case
No. 0-AR-1973 (Decided March 26, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
BACK PAY AND RESTORATION OF LEAVE
ENFORCED LEAVE
BACK PAY ACT
FINDING OF WHICH EMPLOYEES
DIGEST NOTES
The grievance involved the allegation that the Agency violated the
agreement by improperly placing certain employees on enforced leave.
The Arbitrator sustained the grievance and ordered that the Agency
provide backpay and restore leave to each of the employees who had been
placed on enforced leave for the pay and leave they had lost as the
result of the Agency's violation.
Contrary to the Agency's contentions, the Authority concluded that
the Arbitrator made the findings required by the Back Pay Act for an
authorized award of backpay. The Arbitrator concluded that the
aggrieved employees were effected by the violation of the agreement,
that employees suffered a loss of pay, and that but for the violation of
the agreement, the aggrieved employees would not have been placed on
enfoced leave. However, the Authority found that the award of backpay
to all individuals placed on enforced leave did not satisfy the
requirements of the Back Pay Act. The Arbitrator did not determine how
many of the employees would not have been placed on enforced leave and
would have worked had the Agency complied with the parties' agreement.
Further, the Arbitrator did not specifically find that all the employees
on enforced leave would have worked if the Agency had not violated the
agreement. As such, the Arbitrator's award of backpay to all of the
employees placed on enforced leave is deficient.
Accordingly, as neither party disputes that some employees would not
have been placed on enforced leave, the Authority modified the award to
require the Agency to provide those employees with backpay to compensate
them for the hours they would have worked but for the Agency's violation
of the agreement. The Authority directed the parties to determine the
identity of the specific employees who would not have been selected for
enforced leave had the parties' agreement been followed. Any unresolved
disputes may be resolved in accordance with the grievance and
arbitration procedure of the agreement.
Case No. 0-AR-1973
FEDERAL EMPLOYEES METAL TRADES COUNCIL LOCAL 831
(Union)
and
U.S. DEPARTMENT OF THE NAVY LONG BEACH NAVAL SHIPYARD LONG BEACH,
CALIFORNIA
(Agency)
DECISION
March 26, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Spencer M. Howard filed by the Agency 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
Union did not file an opposition to the Agency's exceptions.
The grievance involved in this case alleged that the Agency violated
an agreement between the parties by improperly placing certain employees
on enforced leave. The Arbitrator sustained the grievance and ordered
that the Agency provide backpay and restore leave to each of the
employees who had been placed on enforced leave for the pay and leave
they had lost as the result of the Agency's violation.
For the following reasons, we find that the award of backpay to all
employees who were placed on enforced leave is deficient. We will,
therefore, modify the award to require the Agency to provide backpay to
only those employees who would not have been placed on enforced leave
but for the Agency's violation of the parties' agreement.
II. Background and Arbitrator's Award
On November 10, 1988, the Agency issued NAVSHIPYDLBEACH Notice 5450,
which establishe a Special Projects Shop to provide work for certain
employees whose normal work was temprarily interrupted. On March 1,
1989, the Agency and Union negotiated a memorandum of agreement
concerning the procedures for selecting employees in Shop 56 of the
Agency's facility to be placed on enforced leave if work was
unavailable. Thereafter, on March 6, 1989, the Agency placed a group of
employees from Shop 56 on enforced leave, and on March 14, 1989, the
Agency placed a second group of employees from that shop on enforced
leave. A grievance was filed over the selection and placement of
employees on enforced leave. The grievance was not resolved and was
submitted to arbitration.
The Arbitrator stated that the issue before him was: "Did (m)
anagement reach an agreement with (the Union) and subsequently violate
the intent of that agreement when the aggrieved employees were placed on
forced leave which commenced on March 6, 1989?" Award at 1.
The Arbitrator concluded that the Agency "did not follow the ground
rules set up in the (a)greement or the Special Projects Shop memo
#5450." Id. at 3. The Arbitrator found that the first group of
employees was selected in a manner contrary to the agreement and the
second group was selected in accordance with the agreement but was not
sent to the Special Projects Shop in accordance with the Agency's
notice. As a remedy the Arbitrator ordered that "those employees placed
on forced leave March 6, 1989 and the second group placed on forced
leave March 14, 1989 be made whole, and all leave be reinstated." Id.
III. Agency's Exceptions
The Agency does not except to the Arbitrator's findings that the
Agency violated the parties' agreement. Rather, the Agency disputes
only that part of the Arbitrator's award which compensates the employees
who were placed on enforced leave. According to the Agency, the remedy
violates the Back Pay Act, 5 U.S.C. Section 5596.
Specifically the Agency argues that the award is contrary to the Back
Pay Act "because the (A)rbitrator failed to find which particular
employees would have been placed on enforced leave but for the violation
of the agreement." Exception at 2. The Agency maintains that the
Arbitrator's finding that "all the employees in the two groups should
not have been placed on enforced leave does not constitute the requisite
finding as to which particular employees in the two groups would have
been placed on enforced leave." Id. at 3. Accordingly, the Agency
asserts that "the award, by ordering back pay, including leave
reinstatement, for all employees placed on enforced leave regardless of
whether some employees would have been placed on enforced leave had the
contract been followed, is deficient as contrary to the Back Pay Act."
Id. In conclusion, the Agency requests that the Arbitrator's award be
set aside.
IV. Analysis and Conclusions
The Agency does not except to the Arbitrator's finding that the
Agency violated the parties' agreement in the method of selecting
employees to be placed on enforced leave. The Agency asserts only that
the Arbitrator's award violates the Back Pay Act because the Arbitrator
did not make a specific finding as to which aggrieved employees would
not have been placed on enforced leave and, by ordering that all the
employees placed on enforced leave be made whole, the Arbitrator may be
awarding backpay to employees who would have been on enforced leave had
the agreement been followed.
In order for an award of backpay to be authorized under the Back Pay
Act, an arbitrator must determine that: (1) the aggrieved employee was
affected by an unjustified or unwarranted personnel action; (2) the
personnel action resulted in the withdrawal or reduction of all or part
of the grievant's pay, allowances, or differentials; and (3) but for
such action, the grievant otherwise would not have suffered the
withdrawal or reduction. See American Federation of Government
Employees, Local 1857 and U.S. Department of the Air Force, Sacramento
Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 325
(1990).
In this case the Agency does not dispute that it violated the
parties' agreement. Moreover, the Agency does not claim that all of the
employees placed on enforced leave in violation of the parties'
agreement would not have worked had the agreement been followed.
Rather, the Agency appears to concede that some of those employees would
not, indeed, have been placed on enforced leave. Thus, it is not
disputed by the Agency that, because of the Agency's violation of the
parties' agreement, some of the employees are entitled to backpay.
Contrary to the Agency's contentions, we conclude that the Arbitrator
made the findings required by the Back Pay Act for an authorized award
of backpay. In this respect, the Arbitrator concluded that the
aggrieved employees were affected by the Agency's violation of the
agreement regarding selection procedures for enforced leave, that
employees suffered a loss of pay as a result of the Agency's violation
of the agreement and that, but for the violation of the agreement, the
aggrieved employees would not have been placed on enforced leave. The
Agency cites no provision of the Back Pay Act or its implementing
regulations, and none is apparent to us, that would require the
Arbitrator, after finding the specific circumstances giving rise to an
entitlement to backpay, to identify the specific employees who would not
have been placed on enforced leave had the Agency abided by the parties'
agreement. Department of the Treasury, U.S. Customs Service and
National Treasury Employees Union, 13 FLRA 386 (1983).
We find, however, in agreement with the Agency, that the award of
backpay to all the individuals placed on enforced leave does not satisfy
the requirements of the Back Pay Act. The Arbitrator did not determine
how many of the employees would not have been placed on enforced leave
and would have worked had the Agency complied with the parties'
agreement. Further, the Arbitrator did not specifically find that all
the employees on enforced leave would have worked if the Agency had not
violated the agreement. As such, the Arbitrator's award of backpay to
all of the employees placed on enforced leave is deficient.
Section 7122(a) of the Statute provides that if the Authority finds
that an arbitration award is deficient, the Authority may, among other
things, "take such action . . . as it considers necessary . . . ." In
the circumstances of this case, noting specifically the Agency's
acknowledgement that it violated the parties' agreement, we conclude
that it is necessary and appropriate to modify the Arbitrator's award to
provide backpay to only those employees who would not have been placed
on enforced leave had the Agency not violated the parties' agreement.
See, for example, U.S. Department of the Army, Aviation Applied
Technology Directorate, Fort Eustis, Virginia and National Association
of Government Employees, Local R4-6, 38 FLRA 362, 367 (1990) (Authority
ordered backpay to be paid to a specific individual grievant who would
have worked overtime instead of remedy of backpay to three grievants as
ordered by Arbitrator, noting that the agency acknowledged that it had
violated the parties' agreement); U.S. Department of Veterans
Administration, Medical Center, Houston, Texas and American Federation
of Government Employees, Local 1633, 36 FLRA 122, 128-29 (1990)
(Authority substituted the remedy of priority consideration for a
deficient backpay award, noting that the arbitrator found a violation of
the collective bargaining agreement); Local 12, American Federation of
Government Employees, AFL-CIO and U.S. Department of Labor, 24 FLRA
134, 137 (1986) (Authority substituted the remedy of priority
consideration for a deficient backpay award, noting that the arbitrator
found a violation of the collective bargaining agreement and citing the
corrective action provisions of FPM chapter 335). Accordingly, as
neither party disputes that some employees would not have been placed on
enforced leave, we will modify the award to require the Agency to
provide those employees with backpay to compensate them for the hours
they would have worked but for the Agency's violation of the parties'
agreement. We will direct the parties to determine the identity of the
specific employees who would not have been selected for enforced leave
had the parties' agreement been followed. Any unresolved disputes as to
which employees are entitled to receive backpay may be resolved in
accordance with the grievance and arbitration procedures of the parties'
collective bargaining agreement.
V. Decision
The Arbitrator's award is modified to require the Agency to provide
only those employees who would not have been placed on enforced leave
with backpay to compensate them for the hours they would have worked but
for the Agency's violation of the parties' agreement. The parties are
directed to determine which employees would have worked during periods
of enforced leave in accordance with the parties' agreement. Any
unresolved disputes as to which employees are entitled to receive
backpay under this decision may be resolved in accordane with the
grievance and arbitration procedures of the parties' collective
bargaining agreement.
39 FLRA 1451
39 FLRA NO. 126
Naval Air Station Oceana and NAGE, Local R4-123, Case No. 3-CA-90756
(Decided March 26, 1991)
STATUTE
7116(a)(1), (5) and (8)
7114(b)(4)(A), (B) & (C)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
NAMES AND HOME ADDRESSES
REFUSAL TO FURNISH INFORMATION
DIGEST NOTES
Relying on its precedent, 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-90756
NAVAL AIR STATION OCEANA
(Respondent)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R4-123, SEIU,
AFL-CIO
(Charging Party/Union)
DECISION AND ORDER
March 26, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 and the Respondent
filed briefs with the Authority.
The comlaint 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 homes addresses of bargaining unit employees employed by
the Respondent. For the reasons stated below, we find that the
Respondent committed the unfair labor practice as alleged.
II. Facts
The Union is the exclusive representative of a unit of Respondent's
employees. By letter dated June 22, 1989, the Union requested the
Respondent to provide "the Union . . . (with) the names and home
addresses of the bargaining unit employees employed by Respondent."
Stipulation at 2, paragraph 7. On or about June 30, 1989, the
Respondent refused to provide the Union the names and home addresses of
unit employees.
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.
Stipulation, paragraph 8. The parties agree that "alternative means of
communication are available" to the Union for contacting bargaining unit
employees. Stipulation at 3, paragraph 10.
III. Positions of the Parties
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 the case. The General Counsel contends that the Resondent'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 rational in its
decision in Portsmouth Naval Shipyard. The Respondent contends that
disclosure of employees' home addresses is prohibited by the Privacy
Act, 5 U.S.C. Section 552a, because such disclosure would constitute a
clearly unwarranted invasion of personal privacy under exemption b(6) of
the Freedom of Information Act, 5 U.S.C. Section 552(b)(6). The
Respondent argues that Portsmouth Naval Shipyard conflicts with
Department of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749 (1989) and FLRA v. Department of the Treasury, Financial
Management Service, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S.
Ct. 863 (1990). The Respondent argues also that the disclosure of
employees' home addresses does not constitute a "routine use" under
existing regulations.
IV. Analysis and Conclusions
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.
V. 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 Naval Air Station Oceana shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National
Association of Government Employees, Local R4-123, SEIU, AFL-CIO,
the exclusive representative of certain of its employees, the
names and homes 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 R4-123, 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 R4-123, 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, Naval Air Station Oceana, 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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Association of Government Employees, Local R4-123, 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.
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 Association of Government Employees,
Local R4-123, 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.
(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,
Washington, D.C. 20033-0758 and whose telephone number is (202)
653-8500.
39 FLRA 1445
39 FLRA NO. 125
Army Corps of Engineers, Headquarters, South Pacific Division, San
Francisco, CA and Intl. Fed. of Professional and Technical Engineers and
NFFE, Local 777, Case No. 9-RO-00005 (Decided March 26, 1991)
SUBJECT MATTER INDEX ENTRIES
APPLICATION FOR REVIEW
OBJECTION TO ELECTION
RUN-OFF ELECTION
PERIOD FOR OBJECTIONS
REMOVAL OF NAMES FROM VOTING LIST
ADVISING EMPLOYEES THAT THEY ARE NOT ELIGIBLE TO VOTE
CITING OF NLRB AND ASSISTANT SECRETARY CASE LAW
DIGEST NOTES
NFFE, the Intervenor, sought review of the Regional Director's
findings on two of its objections to the election. The first objection
went to the Region's removal of two employees from the nonprofessional
unit just before the election. The Regional Director had found that at
the time of the election one of the two individuals was no longer
employed by the Activity and the other employee was determined to be a
professional, and thereby ineligible to vote. The Authority denied the
application for review of this ruling, noting that in order to be
allowed to vote, an employee must be an eligible voter at the time the
election is held. As these two were not in the unit at the time of the
election, it would have been improper to allow them to vote.
The second objection at issue concerned an allegation that a
supervisor attempted to keep employees from voting by improperly telling
them that they were ineligible to cast ballots. In disposing of the
objection, the Director concluded that as this conduct occurred before
the original election, not the run-off election leading to the
objections, it could not be considered. NFFE contended that the
Director erred in adopting a rule supported by decisions of the
Assistant Secretary and NLRB. The Authority concluded that the adoption
of this rule was not an error, noting that a decision of the Assistant
Secretary remains in full force and effect unless it has been revised or
superseded by decisions issued pursuant to the Statute. Also noted was
that while decisions of the NLRB are not controlling in the Federal
sector, the Authority may take into account the experience gained in the
private sector.
Case No. 9-RO-00005
U.S. ARMY CORPS OF ENGINEERS HEADQUARTERS, SOUTH PACIFIC DIVISION SAN
FRANCISCO, CALIFORNIA
(Activity)
and
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
AFL-CIO
(Petitioner)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 777, INDEPENDENT
(Intervenor)
ORDER DENYING APPLICATION FOR REVIEW
March 26, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on an application for review filed
by the Intervenor (NFFE) under section 2422.17(a) of the Authority's
Rules and Regulations. The Regional Director conducted elections among
the professional and the nonprofessional employees of the Activity. The
professional employees voted to remain separate from the nonprofessional
employees, and the ballots of each group were counted separately. None
of the choices on the ballots received a majority of the valid votes
counted. Separate run-off elections among each group were conducted.
This application for review concerns only objections filed to the
run-off election among the nonprofessional employees. Of the 43 valid
votes counted, 21 were cast for NFFE and 22 were cast against exclusive
recognition. There were no challenged ballots. Following the run-off
election, NFFE filed two objections with the Regional Director: one to
the procedural conduct of the election; and one to conduct by the
Activity which allegedly improperly affected the results of the run-off
election. In her Decision and Order on Objections, the Acting Regional
Director (ARD) concluded that the objections had no merit and did not
warrant setting aside the election.
NFFE seeks review of the ARD's decision. The Activity did not file
an opposition to NFFE's application for review. For the reasons
discussed below, we find that NFFE has not established any basis for
review of the ARD's Decision and Order. Accordingly, we deny the
application for review.
II. Acting Regional Director's Decision
A. Objection No. 1
NFFE's first objection, to the procedural conduct of the election,
was as follows:
Two employees were improperly removed from the nonprofessional
unit just before the election; they are Raymond Heindrich and
Jane Piper, auditors.
ARD's Decision (ARD) at 2.
The ARD noted that NFFE contended that because auditors Heindrich and
Piper received nonprofessional ballots in the first election, they
should have received ballots in the run-off election, without regard to
whether they are professional employees. Id.
The ARD found that at the time of the run-off election Piper was no
longer an employee of the Activity and was no longer in the bargaining
unit. The ARD found that Piper, therefore, was not eligible to vote in
the run-off election and correctly did not receive a ballot. Id. at
2-3.
The ARD found that the evidence established that Heindrich was a
professional employee within the meaning of section 7135(b) of the
Statute. The ARD explained that Heindrich had erroneously been given a
nonprofessional ballot in the first election. In the run-off election,
Heindrich was correctly identified as a professional employee and was
provided a ballot in the professional run-off election, but was not
allowed a ballot in the nonprofessional run-off election. Id. at 3.
The ARD stated that "(i)t would have been illogical to repeat the error
made in the initial election of providing Heindrich with a
nonprofessional ballot simply to make the run-off election consistent
with the initial election." Id.
The ARD concluded that the exclusion of Piper and Heindrich from the
list of eligible employees in the nonprofessional run-off election was
correct and that no improper procedural conduct occurred. She found
Objection No. 1 to be without merit. Id. at 4.
B. Objection No. 2
NFFE's second objection, to conduct by the Activity which allegedly
improperly affected the results of the run-off election, was as follows:
At least one supervisor (maybe more) attempted to keep employees
from voting by telling them improperly that they were ineligible
to cast ballots. On specific incident was that James Z. Bedford,
Director of the South Pacific Division Laboratory, telling
employees April Hansen, Carol Melvin and Lloyd Wong they were not
allowed to vote, even though they are eligible bargaining unit
members.
ARD at 4.
The ARD noted the NFFE contended that the comments allegedly made by
Bedford "made a lasting impression upon eligible voters that they were
not eligible to vote in the run-off election." Id.
The ARD found that Bedford had held a meeting with about 20 employees
prior to the first election, during which he indicated that "employees
who were involved in security, personnel or finance or who had
management titles were not eligible to vote." Id. The ARD found,
however, that "(t)here is no evidence that (Bedford) specifically
informed Hansen, Melvin or Wong that they were not eligible to vote in
the elction or threatened employees in any way." Id.
The ARD also found that the conduct of Bedford could not in any event
be grounds for objection. The ARD found:
The critical period preceding a run-off election during which
objectionable conduct of one party may be used as grounds for
setting aside the run-off election begins running from the date of
the first election. Conduct occurring prior to the first election
and not raised as objections to that election may not be
considered as grounds for setting aside the run-off election.
Report (on a Ruling) of the Assistant Secretary of Labor for
Labor-Management Relations No. 50, February 29, 1972 (2 A/SLMR
640); Singer Company, Wood Products Division, Trumann, Arkansas,
161 NLRB No. 87 (19(6)6).
Id.
The ARD found that because the alleged objectionable conduct of
Bedford occurred prior to the first election, was outside the critical
period of the run-off election, and was not raised as objectionable
conduct to the first election, it could not be grounds for setting aside
the run-off election. She found Objection No. 2 to be without merit.
Id. at 4-5.
III. NFFE's Application for Review
NFFE request "that the Authority set aside the (Acting) Regional
Director's Decision and Order because of the extraordinary circumstances
of the election and the (Acting) Regional Director's error in applying
precedent." Application for Review at 3.
A. Objection No. 1
NFFE states that it does not disagree with the ARD's determination as
to the status or "current disposition" of employees Piper and Heindrich.
NFFE alleges, however, that "it is not logical that the (ARD) could
have found that (Piper and Heindrich) were properly included in the
first election while improperly excluded from the second." Id. at 1.
B. Objection No. 2
NFFE alleges that the remarks made to employees by Bedford were "so
inappropriate (that they) can only chill the election by making many of
Mr. Bedford's employees feel they would be insubordinate if they were to
vote." Id. NFFE alleges further that there "can be no doubt" that
employees were "cowed by Mr. Bedford's remarks" and that "management has
improperly influenced the election." Id. at 3.
NFFE challenges the ARD's ruling that conduct occurring prior to the
first election and not raised as objections to that election may not be
considered as grounds for setting aside the run-off election. Id. at 1.
NFFE contends that the ARD's reliance on a 19-year old decision of the
Assistant Secretary and a 25-year old decision by the National Labor
Relations Board (NLRB) is inappropriate. Id. at 2.
NFFE contends in any event, the Assistant Secretary's rule, adopted
by the ARD, would nonetheless allow reliance on Bedford's remarks if
unusual circumstances were shown. NFFE argues that two unusual
circumstances exist in this case: (1) that because there were two
unions involved in the first election, infractions by management might
not have been properly reported; and (2) the run-off election was held
only 35 days after the first election. NFFE suggests, without more,
that these two "unusual circumstances" prevented it from learning about
the Bedford remarks "in time for the run-off." Id. at 2.
IV. Analysis and Conclusions
We conclude, for the reasons stated below, that no compelling reasons
exist within the meaning of section 2422.17 of the Authority's Rules and
Regulations for granting the application for review.
A. Objection No. 1
The ARD found that, at the time of the run-off election, Piper was no
longer employed by the Activity and was no longer in the bargaining
unit. The ARD found that, although Heindrich had been provided a
nonprofessional ballot in the first election, it was determined prior to
the run-off election that he is a professional employee. NFFE does not
dispute the finding that Piper was no longer in the bargaining unit or
that Heindrich is a professional employee. NFFE alleges that, despite
those findings, Piper and Heindrich should have been provided ballots in
the nonprofessional run-off election.
We disagree. In order to be allowed to vote in any election, an
employee must be an eligible voter at the time the election is held.
Piper was no longer eligible at the time of the run-off election. As to
Heindrich, the application for review provides no basis for finding that
the ARD erred in stating that once the error as to his status was
discovered it had to be corrected. It would have been improper to allow
employees not in the nonprofessional unit to vote to determine
representation for that unit. We find that NFFE has not shown that the
ARD erred in her rulings as to Piper and Heindrich and has not shown
that the procedural conduct of the run-off election was in any way
improper.
B. Objection No. 2
NFFE alleges that the ARD erred by adopting a rule for which she
cited as support a decision of the Assistant Secretary and one of the
NLRB. We disagree. As the ARD noted with regard to Objection No. 1, a
decision of the Assistant Secretary remains in full force and effect
unless it has been revised or superseded by decisions issued pursuant to
the Statute. ARD at 3 n.2. While decisions of the NLRB are not
controlling in the Federal sector, the Authority may take into account
the experience gained in the private sector. See U.S. Department of
Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371,
1380-81 (1990).
The ARD adopted the rule that the critical period to look to in a
run-off election to determine if conduct warrants setting aside an
election is the period between the first election and the run-off
election. In keeping with that rule, conduct that occurred prior to the
first election was subject to objections to the first election, but was
not to be considered as grounds for setting aside the run-off election.
We find that the ARD did not err in adopting the rule in this case. We
also note that the NLRB has continued to follow the rule cited by the
ARD. See, for example, Times Wire & Cable Co., 280 NLRB 19, 20 n.10
(1986).
We find that NFFE has not demonstrated that it could not have known
of Bedford's actions prior to the run-off election. The remainder of
NFFE's arguments are no more than a disagreement with the rules or
standards applied by the ARD in reaching her decision.
As NFFE has not supported its allegation that the ARD erred in
applying precedent, and has not suported any other grounds for granting
review of the ARD's decision, we find that review is not warranted under
section 2422.17(c) of the Authority's Rules and Regulations.
Accordingly, we will deny the application for review.
V. Order
The application for review is denied.
39 FLRA 1441
39 FLRA NO. 124
AFGE, Local 898 and Dept. of Labor, Occupational Safety and Health
Administration, Denver, Colorado, Case No. 0-NG-1886 (Decided March 25,
1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
ASSIGNMENT TO LOCATIONS
GRADE AND TIME SPENT
ASSIGNMENT OF WORK
APPROPRIATE ARRANGEMENTS
DIGEST NOTES
The Authority found negotiable a proposal requiring the Agency to
allow bargaining unit employees' grade and time spent at the Agency's
Denver Area Office to be the determinative factors when deciding
conflicts over whether employees would be assigned to the Denver Area
Office or a new Area Office in Littleton. The Authority noted that the
proposal provides criteria for determining which employees will be sent
to the two offices, in case there is a conflict between employees
wanting to go to one or the other. That is, the proposal concerns the
location where work which has previously been assigned to employees will
be performed. The Agency will have already exercised its discretion to
assign the work to particular employees or positions and will only be
deciding which particular employees will be selected to work at which
office. Accordingly, the proposal does not directly interfere with the
right to assign work, but constitutes a negotiable procedure.
Case No. 0-NG-1886
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 898
(Union)
and
U.S. DEPARTMENT OF LABOR OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION DENVER, COLORADO
(Agency)
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
March 25, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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). /1/ This dispute arose as a result of
the Agency's decision to divide its Region VIII Denver Area Office into
two area offices -- one to be located at the present Denver Area Office
and the other to be located at a new location, the Littleton Area
Office. The dispute concerns the negotiability of one proposal
requiring the Agency to allow bargaining unit employees' grade and time
spent at the Agency's Denver Area Office to be the determinative factors
when deciding conflicts over the area office to which unit employees
will be assigned.
For the following reasons, we find that the proposal is negotiable.
II. Proposal
Although the Union did not submit a formal proposal, it states in its
petition for review that it requested that
when the employees are split between the two offices (the Denver
Area Office and the Littleton Area Office) that any conflict
between employees wanting to go to the same office be resolved by
GS grade and time in the Denver Area Office. III. Positions of
the Parties
A. Agency
As noted previously, the Agency did not file a statement of position.
However, in its allegation of nonnegotiability dated October 15, 1990,
the Agency stated that it was "management's position that the assignment
of employees to an office is (an) assignment of work and is a management
right and therefore non-negotiable."
B. Union
The Union asserts that the proposal constitutes a "method of
relocation" to be used when deciding the office to which a unit employee
will be assigned following the realignment of an Agency Regional Office.
Petition for Review. The Union further asserts that this method of
relocation, requiring grade and time at a specific location to be the
determinative factors, "has been agreed to in the past in (Region VIII)
and other Regions of the Department of Labor." Id. The Union states
that "(e)ach office is going to have the same number of employees with
comparable grades." Id. The Union also states that the current
employees are "fungible" and that "all compliance offiers by grade do
the same type of work and are considered equal." Id.
IV. Analysis and Conclusions
Where management determines that it is necessary for employees to
perform the duties of their positions at different locations and that
the employees to be selected for the assignments are equally qualified,
provisions or proposals establishing the criteria for determining the
employees who will perform their duties at one or another of those
different locations are negotiable. See Overseas Education Association,
Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793
(1987) (Proposal 46) (OEA), aff'd mem. as to other matters sub nom.
Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir.
1988) (when management finds that two or more employees are equally
qualified for an assignment, there is a duty to bargain over the
procedure for determining which one of two or more employees who perform
the same work will be selected for an assignment); Immigration and
Naturalization Service, Eastern Regional Office (Burlington, Vermont),
18 FLRA 875, 879 (1985) (INS) (the procedure by which employees
previously judged by management to be equally qualified to perform the
work will be selected for assignments is negotiable under section
7106(b)(2) of the Statute); and American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 5 FLRA 83 (1981) (Wright-Patterson) (a provision
requiring that temporary duty assignments to a different geographical
area be based on seniority was found to be negotiable).
Further, "the location at which employees perform the normal duties
of their jobs is negotiable unless a relationship exists between the job
location and the job duties." American Federation of Government
Employees, AFL-CIO, Local 3369 and Social Security Administration,
Cypress Hills District Office, 31 FLRA 1110, 1111-12 (1988) (SSA). See
American Federation of Government Employees, National GSA Council (No.
236), Local 1497 and General Services Administration, Region 3, 24 FLRA
928, 936 (1986) (Proposal 4) (GSA); and Wright-Patterson.
The proposal in this case provides criteria for determining which
employees will be sent to the Agency's Denver and Littleton offices, in
case there is a conflict between employees wanting to go to one or the
other of the offices. That is, the proposal concerns the location where
work which has previously been assigned to employees will be performed.
The Agency will have already exercised its discretion to assign the work
to particular employees or positions and will only be deciding which
particular employee will be selected to work at which office. Moreover,
it is undisputed that "(e)ach office is going to have the same number of
employees with comparable grades(,)" that the current employees are
"fungible," and that "all compliance officers by grade do the same type
of work and are considered equal." Petition for Review. Further, there
appears to be no relationship between job location and job duties
because the record does not indicate that different types of work will
be performed at each office.
The Agency did not file a statement of position and, thus, has not
shown that the proposal in any way precludes management from assigning
specified duties to employees or otherwise interferes with its right to
assign work. See American Federation of Government Employees, Local
3601 and U.S. Department of Health and Human Services, Public Health
Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA No. 41, slip op.
at 15 (1991); SSA; and GSA. The parties bear the burden of creating a
record upon which the Authority can make a decision. See National
Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891
(D.C. Cir. 1982), affirming sub nom. 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.
Accordingly, we conclude that the proposal does not directly
interfere with the Agency's right to assign work but constitutes a
negotiable procedure within the meaning of section 7106(b)(2) of the
Statute. See OEA and INS.
V. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning the proposal. /2/
FOOTNOTES
(1) By Order dated November 28, 1990, the Authority initially
dismissed the Union's petition for review because of the Union's failure
to comply with a November 8, 1990 deficiency order. The Union requested
reconsideration of the Authority's November 28 Order, contending that,
among other things, it did not receive the deficiency order until
November 27, and that it complied with the deficiency order on the
following day. On reconsideration, the Authority determined that the
Union had complied with the November 8 deficiency order. Accordingly,
by Order dated January 9, 1991, the Authority granted the Union's
request for reconsideration, rescinded its November 28 Order, and
reopened the case for further processing. In conjunction with reopening
the case for further processing, the Authority granted the Agency an
opportunity to file a statement of position, but the Agency did not file
a statement of position.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
39 FLRA 1431
39 FLRA NO. 123
Dept. of Justice, Immigration and Naturalization Service, El Paso
District Office and AFGE, Local 1210, Case No. 6-CA-70213 (34 FLRA 1035)
(Decided March 22, 1991)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
MOTION FOR RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
STATUS QUO ANTE REMEDY
RECISSION OF DISCIPLINARY ACTION
DIGEST NOTES
In its original decision, the Authority found that the Respondent had
violated the Statute by unilaterally implementing 15 memoranda effecting
changes in working conditions that it had issued to unit employees. On
the motion for reconsideration as to specified memoranda, the Authority
noted that nothing in the motion or supporting brief differs from the
arguments contained in the Respondent's brief to the Judge and in its
exceptions. The Authority found that nothing is raised not previously
considered. The motion does not establish extraordinary circumstances.
As to the motion for reconsideration to the status quo ante remedy,
the motion notes a discrepancy between the Authority's discussion of its
intended remedial order and the order itself. While disagreeing that
this discrepancy affects its rationale, the Authority amended its
remedial order and notice to eliminate the discrepancy. On the motion
for reconsideration as to the order to rescind disciplinary actions, the
motion was denied in part and granted in part. Noting its precedent
that employees who could have otherwise been disciplined are not
entitled to have such disciplinary actions rescinded to the extent that
such discipline would have been appropriate and lawful dispite an
agency's improper unilateral change, the Authority modified its remedial
order to contain such a qualification. However, the Authority rejected
the Respondent's argument that, as a general matter, the Authority
cannot order recission of disciplinary actions taken as a result of an
employee's failure to abide by changed requirements of the memoranda at
issue.
Case No. 6-CA-70213 (34 FLRA 1035 (1990))
UNITED STATES DEPARTMENT OF JUSTICE UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE EL PASO DISTRICT OFFICE
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1210
(Charging Party)
ORDER DENYING IN PART, AND GRANTING IN PART, MOTION FOR RECONSIDERATION
AND MODIFYING DECISION
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a motion by the Respondent for
reconsideration of the Authority's decision in United States Department
of Justice, United States Immigration and Naturalization Service, El
Paso District Office, 34 FLRA 1035 (1990). The General Counsel filed an
opposition to the Respondent's motion. For the reasons discussed below,
the motion for reconsideration is denied in part and granted in part.
II. The Authority's Decision in 34 FLRA 1035
In 34 FLRA 1035, the complaint alleged that the Respondent had
violated the Statute by unilaterally implementing 15 memoranda effecting
changes in working conditions that it had issued to bargaining unit
employees. The Authority dismissed the allegations as to the memoranda
identified at Jt. 5 and 12. The Authority found, however, that the
Respondent's implementation of the changes in working conditions
effected by 13 of the memoranda identified as Jt. 2, 3, 6, 10, 13, 14,
15, 16, 19, 20, 21, 23, and 27 violated the Statute because the
Respondent failed to provide the Charging Party (the Union) with proper
notice of the changes set forth in those 13 memoranda and refused the
Union's request to bargain over the impact and implementation of the
changes.
The Authority ordered the Respondent to cease and desist from
unlawfully refusing to bargain and to: (1) rescind the changes set
forth in 12 of the 13 memoranda and revert to the practices in effect
prior to issuance of the memoranda; /1/ (2) rescind any admonishments
or other disciplinary actions taken against employees for failure to
comply with the changed requirements of the 13 memoranda; and (3) upon
request, bargain with the Union about the appropriate arrangements for
any employees adversely affected by the changes.
We deny the motion for reconsideration as to the Authority's
conclusion that the Respondent violated the Statute by implementing the
memoranda that are the subject of the motion, and as to the conclusion
that a status quo ante remedy is warranted. However, we grant the
motion for reconsideration as to a portion of the remedy and,
accordingly, amend and modify the Authority's remedial order.
III. Positions of the Parties
A. Motion for Reconsideration
The Respondent contends that, under section 2429.17 of the
Authority's Rules and Regulations, extraordinary circumstances exist
warranting reconsideration of portions of the Authority's decision in 34
FLRA 1035. The motion requests reconsideration as to 9 of the 13
memoranda on the grounds that: (1) the Authority improperly ruled on
memoranda Jt. 2, 6, 10, and 13 because the Respondent did not file
exceptions as to those 4 memoranda; (2) the Authority's conclusions as
to memoranda Jt. 3, 14, 16, 20, and 21 "are based on an application of
the Statute which is flatly inconsistent with the Authority's own case
law;" (3) the decision as to memorandum Jt. 20 exceeded the Authority's
statutory powers; (4) the Authority's conclusion that a status quo ante
remedy is warranted as to those 5 memoranda is "derived from an alleged
mis-perception by the (Respondent) regarding the scope of the remedy
(that) is flatly contradicted by the arguments (the Respondent)
presented;" and (5) the Authority's order went beyond the Judge's
recommended order, thus raising a question of law that can only be dealt
with by granting reconsideration to allow the Respondent an opportunity
to respond to the Authority's action. Respondent's Motion For
Reconsideration (Motion) at 1-2; and Respondent's Brief in Support of
Motion for Reconsideration (Respondent's Brief) at 1-2.
The Respondent's position as to each these issues is considered below
in the separate discussion of the issues.
B. General Counsel's Opposition
The General Counsel argues that the Respondent's motion for
reconsideration should be denied, stating only that the motion fails to
establish grounds warranting reconsideration because the motion simply
argues with the merits of the Authority's decision.
IV. Analysis and Conclusions
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. With the
exception of a portion of the remedial order dealing with disciplinary
action, we conclude that the Respondent has not established
extraordinary circumstances within the meaning of section 2429.17 to
warrant reconsideration of our decision in 34 FLRA 1035.
A. Preliminary Matter
In the absence of exceptions as to Jt. 15 and 19, the Authority
adopted the Judge's conclusions that the Respondent violated the Statute
and adopted the Judge's recommended order. As to Jt. 5 and 12, the
Authority reversed the Judge's conclusions and dismissed the allegations
of the complaint. As to Jt. 23, the Respondent admits in its motion for
reconsideration that it inadvertently filed exceptions to the Judge's
decision. As to Jt. 27, the Authority ordered the Respondent to bargain
about the impact and implementation of Jt. 27, but did not order the
memorandum to be rescinded. The Respondent's motion does not challenge
the Authority's decision as to those memoranda.
B. The Motion for Reconsideration as to Memoranda Jt. 2, 6, 10, and
13 Is Denied
In 34 FLRA at 1039, the Authority adopted the Judge's findings,
conclusions, and recommended order as to memoranda Jt. 2, 6, 10, and 13,
stating that "(t)he Respondent's exceptions as to those memoranda do not
state any grounds in support of the exceptions and do not, therefore,
satisfy section 2423.27(a)(3) of our Regulations(.)" 34 FLRA at 1039.
In its motion for reconsideration, the Respondent alleges that the
Authority had no jurisdiction to pass on memoranda Jt. 2, 6, 10, and 13
because the Respondent did not file exceptions to the Judge's decision
as to those memoranda. The Respondent states that "(w)e have
re-examined the brief the (Respondent) submitted to see if some
inadvertent reference was made to these other findings which may have
served to mislead the Authority, but have found no such reference."
Respondent's Brief at 2-3. The Respondent states that it "did
erroneously" except to the Judge's findings as to memorandum Jt. 23, but
that "this error does not serve to explain the Authority's action in
treating the (Respondent's) exceptions as if they were filed with
respect to all the memoranda save Nos. 15 and 19." Id. at 3.
In its Brief in Support of Exceptions to the Decision of the
Administrative Law Judge at 4, the Respondent stated that it "excepts to
all of the 'discussion and conclusions of law' after the first paragraph
on page 16 except for those pertaining to Memoranda Jt. 15 and 19." The
Judge's conclusions as to all 15 memoranda, including memoranda Jt. 2,
6, 10, and 13, come after the first paragraph on page 16 of his
decision. Accordingly, we find no merit in the Respondent's allegation
that it did not file exceptions to the Judge's decision as to memoranda
Jt. 2, 6, 10, and 13. We deny the Respondent's motion for
reconsideration of our decision as it pertains to these memoranda.
C. The Motion for Reconsideration as to Memoranda Jt. 3, 14, 16, 20,
and 21 Is Denied
As to memoranda Jt. 3, 14, 16, 20, and 21, the Respondent alleges
that the Authority should reconsider the merits of its decision.
Specifically, the Respondent alleges that: (1) the Authority's
conclusions, that the implementation of memoranda Jt. 14, 16, and 20
changed conditions of employment of bargaining unit employees, are
inconsistent with Authority precedent; (2) even if the implementation
of memoranda Jt. 14, 16, and 20 resulted in such changes, the
Authority's conclusions that the effects of the changes were more than
de minimis are inconsistent with Authority precedent; (3) that the
Authority's conclusions that the results of the changes effected by the
implementation of memoranda Jt. 3 and 21 were more than de minimis are
inconsistent with Authority precedent; and (4) as to memorandum Jt.
20, the Authority's finding and order exceeded the Authority's statutory
power because it interferes with the right of management to bring
criminal charges against employees.
We have considered the Respondent's motion for reconsideration. The
Respondent disagrees with the determinations as to the weight and
sufficiency of the evidence made by the Judge and by the Authority,
disputes the rationale of those determinations, and gives further
arguments and citations in support of its allegations. However, we find
nothing in the motion and supporting brief that differs from the
arguments contained in the Respondent's brief to the Judge and in its
exceptions to the Judge's decision on the same issues presented by the
motion. /2/ In short, we find that the motion for reconsideration as to
these issues raises nothing that was not previously considered and
rejected by the Judge and the Authority. The motion does not establish
extraordinary circumstances warranting reconsideration of the
Authority's basic decision as to these memoranda.
D. The Motion for Reconsideration as to the Status Quo Ante Remedy
Is Denied in Part and Granted in Part
Except as to memorandum Jt. 27, the Authority in 34 FLRA 1035 found
that a status quo ante remedy was warranted. That is, the Authority
directed that if requested to do so by the Union, the Respondent should
rescind the changes set forth in the memoranda. In rejecting the
Respondent's arguments that such a remedy would impair the efficiency
and effectiveness of critical Agency operations, the Authority stated
that the "assumption underlying (Respondent's) arguments" that
rescission would leave management with no enforceable policy was not
valid. Id. at 1047. Rather, the Authority concluded that rescission of
the memoranda "means simply that management will return to the policies
and procedures that existed before February 23, 1987." Id. at 1047. The
Authority also noted that the Judge applied the factors set forth by the
Authority in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI)
for determining when a status quo ante remedy is warranted. Id.
The Respondent argues that the Authority should reconsider the
granting of a status quo ante remedy because the Authority incorrectly
attributed certain assumptions to the Respondent and because, in the
Respondent's view, the Authority did not properly apply the factors of
FCI to the circumstances of the case. Respondent's Brief at 17-24. The
Respondent also notes that while the Authority indicated in its
discussion that it would order rescission if requested by the Union, the
Authority's order did not require such a request. Id. at 19.
We have considered the motion for reconsideration. We find no merit
in the contention that the Judge and the Authority did not properly
apply the factors of FCI. We find nothing in the motion and supporting
brief that differs from the arguments contained in the Respondent's
brief to the Judge and in its exceptions to the Judge's decision on the
same issues. The Respondent's motion simply disagrees with the
rationale of the Judge and of the Authority and disagrees with the
conclusion that a status quo ante remedy is warranted in the
circumstances of this case. The motion does not establish extraordinary
circumstances warranting reconsideration of the Authority's conclusion
that a status quo ante remedy is proper and the motion to that extent is
denied.
However, the Respondent's motion notes a discrepancy between the
Authority's discussion of its intended remedial order and the order
itself. That is, in its discussion, the Authority stated that "(r)
escission of the memoranda, if requested by the Union, means simply that
management will return to the policies and procedures that existed
before February 23, 1987." 34 FLRA at 1047 (emphasis supplied). The
Authority did not, however, in its order or notice to employees, require
that the Union request rescission of any memoranda.
While we disagree that this discrepancy affects our rationale, we
will amend our remedial order and notice to employees to require that
rescission of any memoranda is contingent upon a request for rescission
by the Union.
E. The Motion for Reconsideration as to the Order to Rescind
Disciplinary Actions Is Denied in Part and Granted in Part
In 34 FLRA 1035, the Authority, in addition to the Judge's
recommended order, ordered the Respondent to "rescind any admonishments
or other disciplinary actions taken against employees for failure to
comply with the changed requirements" of the memoranda that it found to
have been unlawfully implemented. The Respondent argues that the
Authority's modification: (1) presents "an entirely new aspect of the
remedy" about which the Respondent has not had the opportunity to
present its views; and (2) exceeds the remedial powers conferred by the
Statute. Respondent's Brief at 25. The Respondent requests, therefore,
that the Authority consider the Respondent's arguments as to this
portion of the remedial order. Id.
The Respondent argues that the order to rescind disciplinary actions
is contrary to Authority precedent. Specifically, the Respondent cites
the Authority's decisions in Department of the Navy, Charleston Naval
Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston
Naval Shipyard), in which, according to the Respondent, the Authority
found that a make whole remedy is not appropriate when an employee is
disciplined or discharged for misconduct or any other nondiscriminatory
reason; and Veterans Administration, West Los Angeles Medical Center,
Los Angeles, California, 23 FLRA 278 (1987) (VA Medical Center), in
which the Authority refused to order rescission of disciplinary actions
that were based on insubordination. Id. at 25-27.
The Respondent also argues that the order to rescind disciplinary
actions exceeds the Authority's statutory powers to the extent that a
rescission would require the Respondent to nullify decisions on
disciplinary actions already taken by the Merit Systems Protection Board
(MSPB), by arbitrators, or by the Federal Circuit. Id. at 27-28.
Finally, the Respondent argues, generally, that an order to rescind
disciplinary actions in this case is not appropriate because none of the
employees was shown to have been discriminated against, and because it
would not be in keeping with the general remedial powers conferred on
the Authority. Id. at 28-29.
First, we find that the Respondent's reliance on Charleston Naval
Shipyard is misplaced, and the Respondent's characterization of the
Authority's finding is inappropriately broad. The Authority in that
case found that a make whole remedy is not appropriate "where the
disciplinary action taken relates solely to employee misconduct
independent of the" management action found to constitute the unfair
labor practice. Charleston Naval Shipyard, 32 FLRA at 233. In this
case, our order seeks to remedy disciplinary action taken against
employee conduct that, absent the unilateral changes, would not have
been proscribed conduct.
On the other hand, we find valid the Respondent's concern that our
remedial order rewards an employee's misconduct, and we agree that our
order is inconsistent with the Authority's holding in VA Medical Center.
The Authority in VA Medical Center found in pertinent part that the
agency had unlawfully implemented a new dress code. The Authority
adopted the Administrative Law Judge's recommended order to rescind the
dress code and to rescind the disciplinary actions initiated against
employees as a result of the new dress code. However, the Authority
modified the Judge's recommended order to exclude from the rescission
disciplinary actions involving insubordination.
In our view, the underlying principle of VA Medical Center is that
employees who could have otherwise been disciplined, whether for
insubordination or other misconduct, are not entitled to have such
disciplinary actions rescinded to the extent that such discipline would
have been appropriate and lawful despite an agency's improper unilateral
change. As the Respondent points out, "the (Authority's) Order here
contains no such qualification(.)" Respondent's Brief at 27. We agree
with the rationale of VA Medical Center in this regard. We find,
therefore, that our remedial order should contain such a qualification,
and we will modify our order to so provide.
However, we do not agree with the Respondent's argument that, as a
general matter, we cannot order rescission of disciplinary actions taken
as a result of an employee's failure to abide by changed requirements of
the memoranda. As the Respondent impliedly acknowledges, the Authority
rejected substantially similar arguments in VA Medical Center. We
reject the Respondent's argument here, and find that when an issue is
properly raised as an unfair labor practice under section 7116 of the
Statute, decisions of arbitrators, of the MSPB, or of the Federal
Circuit do not prevent the Authority from remedying any violation found.
Finally, we have considered the Respondent's general arguments
concerning the need for a finding of discrimination in the Respondent's
disciplinary actions and its arguments concerning the Authority's
general remedial powers. We find that the Respondent's motion in this
regard adds nothing to the other arguments as to the merits of the
Authority's decision. Rather, the motion simply disagrees with the
conclusions of the Authority and does not establish extraordinary
circumstances warranting reconsideration of those conclusions. The
motion is denied to that extent. See generally National Treasury
Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc).
V. Order
The Respondent's motion for reconsideration of the Authority's
decision in 34 FLRA 1035 is granted for the limited purpose of
clarifying and modifying the Authority's remedial order and notice to
employees. The Authority's order is modified by substituting the
following as paragraphs 2(a) and 2(b) of the order:
(a) Upon request by the American Federation of Government
Employees, AFL-CIO, Local 1210, the exclusive representative of
its employees, rescind the changes set forth in memoranda Jt. 2,
3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, issued on February
23 and 24, 1987, and revert to the practices which were in effect
with respect to the matters covered by each memorandum prior to
February 23, 1987.
(b) Upon request by the American Federation of Government
Employees, AFL-CIO, Local 1210, the exclusive representative of
its employees, rescind any admonishments or other disciplinary
actions taken against employees for failure to comply with the
changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16,
19, 20, 21, 23, and 27, except for those disciplinary actions that
would have been appropriate and lawful despite the Respondent's
improper implementation of the memoranda.
Further, the Authority's notice to employees is modified by substituting
the following as the third and fourth paragraphs of the notice:
WE WILL, upon request by the American Federation of Government
Employees, AFL-CIO, Local 1210, the exclusive representative of
our employees, rescind the changes set forth in memoranda Jt. 2,
3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, issued on February
23 and 24, 1987, and revert to the practices which were in effect
with respect to the matters covered by each memorandum prior to
February 23, 1987.
WE WILL, upon request by the American Federation of Government
Employees, AFL-CIO, Local 1210, the exclusive representative of
our employees, rescind any admonishments or other disciplinary
actions taken against employees for failure to comply with the
changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16,
19, 20, 21, 23, and 27, except for those disciplinary actions that
would have been appropriate and lawful despite the Respondent's
improper implementation of the memoranda.
The Respondent's motion for reconsideration is denied in all other
respects.
FOOTNOTES
(1) Rescission was not ordered as to Jt. 27 because such an order
would have required the Respondent to return to a practice that may be
unlawful. 34 FLRA at 1048.
(2) We have taken note of the Respondent's citation to Kenrich
Petrochemicals, Inc. v. NRB, 893 F.2d 1468 (3d Cir. 1990), submitted
after the filing of the motion, in support of the argument that the
bargaining order exceeds the Authority's powers.
39 FLRA 1409
39 FLRA NO. 122
Dept. of the Air Force, Ogden Air Logistics Center, Hill Air Force
Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio and AFGE, Local 1592, Case No. 7-CA-70722 (Decided March 22,
1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN
MID-TERM BARGAINING
LEVEL OF RECOGNITION
BARGAINING OBLIGATION WITHIN CONSOLIDATED UNIT
AUTHORIZATION TO BARGAIN
DIGEST NOTES
The complaint concerned a refusal to bargain with Local 1592 on the
procedures for the selection of employees for the mobility team at Hill
Air Force Base. The Authority, noting its precedent on the bargaining
obligation within a consolidated unit, stated that in this consolidated
unit, to be effective, a request to bargain must have been made by AFGE,
or by its agent, Council 214, unless authorization to bargain had been
delegated to the Local by AFGE, the exclusive representative, and unless
AFLC agreed to local level bargaining. Because the request to bargain
mid-term was not made by the exclusive representative or its agent, and
because it had not been shown that any authorization had been delegated
by the exclusive representative to the Local, Ogden was under no
obligation to bargain with the Local on mobility assignments.
Accordingly, the refusal to bargain was not an unfair labor practice.
Case No. 7-CA-70722
DEPARTMENT OF THE AIR FORCE OGDEN AIR LOGISTICS CENTER HILL AIR FORCE
BASE, UTAH AND AIR FORCE LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
(Respondents)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1592
(Charging Party)
DECISION
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that the Respondents did not violate
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) when Respondent Ogden Air Logistics
Center, Hill Air Force Base (Ogden) refused to bargain with the Charging
Party on the procedures for the selection of employees for the mobility
team at Hill Air Force Base.
The General Counsel filed exceptions to the Judge's Decision. The
Respondents did not file 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 to the extent consistent with our
decision.
II. Facts
Air Force Logistics Command (AFLC) headquarters are located at
Wright-Patterson Air Force Base, Ohio. The nationwide unit of AFLC
employees includes employees at several centers, including employees who
work at Ogden.
The American Federation of Government Employees, AFL-CIO (AFGE) is
the exclusive representative of the nationwide unit. AFGE Council 214
(Council 214) is the AFGE's agent for unit employees in the AFLC. Local
1592 is an affiliate of Council 214. The President of Local 1592 is
William S. Shoell, who also serves as Executive Vice-President of
Council 214.
The AFLC and Council 214 are parties to a master labor agreement
(MLA). Section 33.02 of the MLA deals with command-level negotiations,
that is, negotiations at the level of exclusive recognition. Section
33.02 c. of the MLA states: "(t)he parties may mutually agree to
delegate responsibility for negotiations to subordinate activities and
local Union officials." Section 33.03 addresses negotiations at the
activity level and specifically incorporates the provisions of Section
33.02 c.
Article 34 of the MLA provides for local supplements to the MLA.
However, only one supplemental agreement may be negotiated by each
subordinate AFLC activity. Local 1592 and Ogden had negotiated a
memorandum of understanding which was in effect from February 15, 1980
until August 5, 1987. The memorandum was replaced by a local
supplemental agreement effective August 6, 1987.
The MLA addresses mid-term bargaining at both the command and
activity levels. However, when the MLA was negotiated, the parties
contemplated mid-term bargaining only with respect to
management-initiated changes, and, by its terms, the MLA addresses only
management-initiated changes.
At each AFLC activity, a mobility team is formed to move personnel
and equipment of tenant organizations overseas or bring them back from
overseas assignments. The mobility teams participate in exercises which
are conducted about every 6 weeks. The advantage of serving on a
mobility team is the opportunity to perform totally different work and
earn overtime pay.
Neither the MLA nor the local supplemental agreement addresses
mobility teams. Ordinarily, volunteers staff the mobility teams. In
June 1987, two unit employees who had not volunteered notified Local
1592 of their displeasure at being designated to serve on a mobility
team. On July 2, 1987, the Acting President of Local 1592 asked Ogden
for information on the procedures used to select mobility team members.
On July 21, 1987, Ogden briefed Local 1592 on the procedures used.
On July 23, 1987, Local 1592 President Shoell wrote Ogden, demanding
to bargain mid-term "on the selection and appointment of individuals to
the mobility team." Judge's Decision at 5. In the same letter, Shoell
stated "Local 1592 feels that there needs to be a procedure set up in
regards to selecting employees when there are not enough volunteers
available to be assigned to mobility and other such exercises." Id.
Ogden responded on July 28, 1987, stating that the mobility team
"selection process has remained unchanged since its inception many years
ago. Therefore, there is no 'change in conditions of employment'
regarding this issue . . . . (and) bargaining on this subject is
inappropriate." Id.
In November 1987, AFLC and Council 214 exchanged proposals at the
national level on Union-initiated mid-term bargaining procedures. On
November 23, 1987, Council 214 filed an unfair labor practice charge
alleging that AFLC was refusing to bargain over mid-term bargaining
procedures, and on, March 18, 1988, filed another unfair labor practice
charge alleging that AFLC was delaying bargaining on other subjects
until the mid-term bargaining procedures were finalized. The General
Counsel issued complaints as to both matters, and the Authority found
that AFLC had committed the unfair labor practices alleged. See U.S.
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 36 FLRA 524 (1990)
(Wright-Patterson I), and 36 FLRA 912 (1990) (Wright-Patterson II). In
Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA No.
121 (1991) (Wright-Patterson III), the Authority found that Respondent
AFLC committed an unfair labor practice by interfering with the
bargaining relationship between Ogden and AFGE, the exclusive
representative of its employees, by instructing Ogden to refuse to
bargain on a mid-term proposal until mid-term bargaining procedures were
finalized.
III. The Judge's Decision
The Judge placed the events of this case in the chronological context
of the development of procedents applicable to the issues in this case.
Prior to 1987, the Authority had held that management was not obligated
to negotiate over union-initiated mid-term bargaining proposals, except
where changes in conditions of employment were sought by management or
where the parties had agreed to reopen the agreement. In National
Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), the
court overturned Authority precedent regarding mid-term bargaining. The
court set aside the Authority's decisions and remanded the case to the
Authority for a revised decision.
In the Authority's decision on remand, Internal Revenue Service, 29
FLRA 162 (1987), the Authority concluded that the duty to bargain good
faith imposed by the Statute requires an agency to bargain during the
term of a collective bargaining agreement on negotiable union-initiated
proposals concerning matters which are not addressed in the agreement
and were not clearly and unmistakably waived by the union during
negotiation of the agreement. Internal Revenue Service was issued after
Local 1592's demand to bargain and Ogden's subsequent declination.
The Judge concluded that the subject of selection of mobility team
members was not covered by any of the applicable collective bargaining
agreements. The Judge also found that there was no evidence that AFGE
had waived its right to negotiate over this subject.
However, the Judge noted that Local 1592 might be precluded from
mid-term bargaining on any issue. Judge's Decision at 6-7. The Judge
stated that in consolidated bargaining units, such as the unit here
which represents multiple AFLC activities, the agency may refuse to
bargain with a local union unless the parties have agreed to permit
supplemental negotiations at the activity level. The Judge found that,
in this case, the parties had agreed that only a single supplemental
agreement would be negotiated at the activity level, and that a
supplemental agreement had already been negotiated between Ogden and
Local 1592. The Judge also found that the parties had agreed in Section
33.02 c. to permit local negotiations only by mutual agreement of
Council 214 and the AFLC.
The Judge stated that "(q)uite probably the reason that the MLA makes
no reference to Union initiated proposals for changes in conditions of
employment is that, at the time the MLA was negotiated . . ., agencies
were not obligated to bargain, mid-term, on union initiated changes in
conditions of employment." Id. at 9. The Judge noted that obligations
to bargain are governed by the state of the law at the time a case is
decided.
The Judge determined that Ogden was not obligated to bargain on the
mobility team mid-term proposal initiated by Local 1592 because the
parties' MLA limits local negotiations to a single supplemental
agreement, which had already been completed. The Judge found that
further negotiations at the activity level could occur only by mutual
agreement of Council 214 and AFLC. The Judge found that although
Council 214 may have delegated authority to Shoell to negotiate
mid-term, that delegation was not communicated to management. According
to the Judge, nothing in the record showed that AFLC had delegated
authority to Ogden for mid-term negotiations. The Judge concluded that
"since there was no mutual agreement of the Parties for local
bargaining, Ogden was under no obligation to bargain with the Union
(Local 1592)." Id. at 10 (footnote omitted).
The Judge found that Council 214 could have initiated mid-term
negotiations on mobility team selections, but did not do so. The Judge
stated that the effect of the Authority's decision in Internal Revenue
Service was to amend the parties' MLA, by operation of law, to permit
Union-initiated mid-term bargaining requests but that Internal Revenue
Service had no effect on that portion of the parties' MLA which governs
the manner in which negotiations are to be conducted. The Judge found
that interpreted in this manner, AFGE's right to initiate mid-term
bargaining is protected; that is, AFGE could have Council 214 request
mid-term bargaining with AFLC or could suggest that both the Council and
AFLC mutually delegate bargaining authorization to a lower level.
The Judge also determined that Ogden's failure to cite a contract
defense when initially responding to Local 1592's request for mid-term
bargaining on mobility team selection did not bar the later assertion of
the defense. The Judge stated that when Ogden initially refused to
bargain, its position was fully in accord with Authority precedent and
the parties' agreements. The Judge found that AFGE was not prejudiced
by Ogden's failure to cite a contract defense because AFGE could still
have initiated mid-term bargaining on mobility team selection through
Council 214. The Judge noted that after the Authority's issuance of
Internal Revenue Service, AFGE could have renewed the mid-term
bargaining request, but did not do so. Finally, the Judge determined
that the AFGE did not rely to its detriment on Ogden's failure to assert
its contract defense.
The Judge concluded that while there was no dispute that Ogden
refused to bargain with Local 1592 over mid-term proposals on mobility
team selection, the refusal did not violate section 7116(a)(1) and (5)
of the Statute. The Judge recommended that the complaint be dismissed.
IV. The General Counsel's Exceptions
The General Counsel excepts to the Judge's determinations that: (a)
the request to bargain was made at the activity level; (b) "Local 1592,
by negotiating one supplemental agreement, ha(d) waived its right to
initiate further mid-term bargaining proposals"; and (c) Ogden was not
barred from raising the contract defense. Exceptions at 3-4.
A. The Request to Bargain
The General Counsel excepts to the Judge's finding that Shoell
initiated the mid-term bargaining request as Local 1592 President, and
not as Executive Vice-President of Council 214. The exceptions state:
Although the request to bargain was made on Local 1592 letterhead,
Shoell could have made the request on Council 214 letterhead. The
type of letterhead on which the request was made is irrelev(a)nt;
Counsel for the General Counsel concedes that Shoell made the
request at the Local level, but contends he made that request in
his capacity as Executive Vice-President of the Council as well as
President of Local 1592.
Exceptions at 3. The General Counsel also excepts to the Judge's
failure to find that Shoell's position as Executive Vice-President of
Council 214 gave him authority to initiate mid-term bargaining at either
the command or activity level.
B. The MLA
The General Counsel states that a waiver of a statutory right must be
clear and unmistakable. The General Counsel contends that because the
Judge did not consider any evidence concerning the interpretation of the
pertinent MLA language, such as bargaining history or past practice, no
finding of waiver may be made. The General Counsel asserts that the
Judge made a unilateral interpretation of the MLA. The General Counsel
argues that if the Judge believed that the MLA language was clear and
unambiguous and, therefore, could determine its meaning, the Judge's
rationale is "totally illogical." Exceptions at 4.
The General Counsel states that at the time the MLA was negotiated,
"Federal unions had no right to initiate mid-term bargaining." Id. The
General Counsel relies on precedent in which "the Authority has
repeatedly ruled that it is difficult if not impossible to
anticipatorily waive a right that does not presently exist." Id. at 5.
The General Counsel also distinguishes Authority precedent in which a
"zipper clause" is present. The General Counsel argues that a clear and
unmistakable waiver could not exist and that the Judge has "read into"
the language of the agreement a particular meaning "without the
assistance of evidence" and has made an independent interpretation. Id.
at 8.
The General Counsel alleges that the Judge erred by concluding that
Ogden was not obligated to bargain on the mid-term proposal initiated by
Local 1592 because, as the Judge found, the parties' MLA: (a)
specifically limits local union-initiated mid-term negotiations to a
single supplemental agreement, which Local 1592 had already negotiated
and which waives Local 1592's right to initiate further mid-term
bargaining; and (b) permits local negotiations only by mutual agreement
of Council 214 and the AFLC. The General Counsel also asserts that the
Judge erred by concluding that Ogden's failure to initially assert the
contract defense in its refusal to bargain did not bar that defense.
The General Counsel asserts that the Judge's interpretation of the
parties' MLA "destroys the bargaining equality the Authority sought to
establish in its Internal Revenue Service decision." Id. at 6. The
General Counsel contends that the Judge incorrectly interpreted and
applied the plain wording of the parties' MLA. The General Counsel
argues that under the Judge's interpretation, the AFLC may make changes
during the life of the agreement, but Local 1592 cannot initiate
proposed changes. The General Counsel contends that, in his dual
capacity as Local 1592 President and Executive Vice-President of Council
214, Shoell has power delegated to him to bargain on behalf of Council
214. The General Counsel argues that if AFLC chooses not to delegate
its authority to Ogden to negotiate, "it should be required to recognize
Local 1592 as Council 214's properly designated representative, and
should be required to bargain with the Local." Id. at 9. The General
Counsel asserts that the MLA "should not prevent Local 1592, as the
Council's properly designated representative, from being able to bargain
with 'somebody' over the mobility teams." Id.
The General Counsel argues that the Authority precedent relied on by
the Judge regarding bargaining at the level of recognition was decided
prior to Internal Revenue Service. The General Counsel states that
there have been no Authority decisions issued subsequent to Internal
Revenue Service which apply the Authority's precedent on bargaining at
the level of recognition to mid-term bargaining situations.
C. The Failure to Raise a Contract Defense
The General Counsel asserts that either Ogden or AFLC was obligated
to bargain with Local 1592. According to the General Counsel, when
Local 1592 submitted the mobility team mid-term bargaining request,
Ogden should have informed Shoell that it did not have the authority to
bargain, so that Shoell "could have made the request to bargain at the
Council level." Exceptions at 11. The General Counsel argues that "the
Local was obviously prejudiced by (Ogden's) failure to raise the
contract defense." Id. The General Counsel contends that Ogden's
failure to raise the contract defense precluded Shoell from bringing the
mobility team issue to the command level. The General Counsel argues
that Local 1592 had no reason to believe that a renewed request at the
command level would receive a more favorable response.
The General Counsel contends, in agreement with the Judge, that the
contract defense is "vulnerable." Id. at 12. However, the General
Counsel disputes the Judge's application of law. Because Internal
Revenue Service had been issued prior to the Judge's decison, the
General Counsel argues that it is controlling. Id. The General Counsel
disagrees with the Judge's finding that Ogden's refusal to bargain was
not in violation of the Statute because the MLA language discussed above
precluded Local 1592 from initiating mid-term bargaining. The General
Counsel contends that "the Judge was incorrect in ruling that (the)
contract language prevented the Local from initiating bargaining." Id.
V. Analysis and Conclusions
The Authority discussed bargaining obligations within a consolidated
bargaining unit in Department of Health and Human Services, Social
Security Administration, 6 FLRA 202 (1981). The Authority held that
the mutual obligation to bargain as articulated in the Statute
exists only at that level of exclusive recognition with respect to
conditions of employment which affect any employees within the
unit; a contrary result would render consolidation meaningless.
In other words, once a labor organization is certified as the
exclusive representative for a consolidated unit, as here, a new
bargaining obligation is created in lieu of such obligations which
previously existed regarding smaller units now included in the
consolidated unit.
6 FLRA at 204 (footnote omitted). See Department of Defense Dependents
Schools and Overseas Education Association, 12 FLRA 52, 53 (1983).
We conclude that the request to bargain over mobility team
assignments was made to Ogden by Local 1592. Local 1592 is an affiliate
of Council 214, which is the agent of AFGE, the exclusive
representative.
In this consolidated bargaining unit, therefore, to be effective, a
request to bargain must have been made by AFGE, or by its agent, Council
214, unless authorization to bargain had been delegated to Local 1592 by
the exclusive representative and unless AFLC agreed to local level
bargaining. See Wright-Patterson III, involving the same parties as
this case and a request to bargain made after the events that gave rise
to the complaint in this case. In that case, we found that Respondent
AFLC had committed an unfair labor practice and found, among other
things, that Shoell had been delegated authority to bargain and that
Shoell had notified Ogden of that delegation. Also, in Wright-Patterson
III, Ogden never raised the MLA defense.
Unlike Wright-Patterson III, the record in this case fails to show
that Shoell had been delegated authority to bargain or that Shoell had
notified Ogden of a delegation of authority to bargain. When Shoell
made his bargaining request, there was no indication that he was acting
on behalf of the exclusive representative or its agent. Even if Shoell
had, in fact, been delegated authority to bargain on behalf of the
exclusive representative or its agent, as he testified during the
hearing before the Judge, the record contains no evidence that Ogden or
AFLC was ever informed that Shoell had been delegated bargaining
authority.
We find that the request to bargain mid-term on the mobility team
selections submitted by Shoell was made solely at the activity level.
As noted above, the General Counsel conceded that Shoell made the
request at the local level. The letter is written on the stationery of
Local 1592, identifies Shoell as President, AFGE Local 1592, and states
that it serves as Local 1592's demand to bargain. The letter is
addressed to a local Ogden labor relations staff member. Nothing in the
request to bargain refers to Council 214. Shoell is not identified as
holding a dual office in Council 214 and there is no indication that he
was writing in his Council capacity. The request is made solely on
behalf of Local 1592 and is addressed only to local management staff.
Any action that Shoell could or might have taken in a Council 214
capacity, as argued by the General Counsel, is immaterial.
Because the request to bargain mid-term on the mobility team
selections was not made by the exclusive representative or its agent,
and because it has not been shown that any authority had been delegated
by the exclusive representative to Local 1592 to bargain on mobility
team assignments, Ogden was under no obligation to bargain with Local
1592 on mobility team assignments. Accordingly, as Ogden had no duty to
bargain with Local 1592, it did not commit an unfair labor practice when
it refused to do so.
Because we have found that the request to bargain was not made by the
exclusive representative or its agent, we need not consider other
arguments raised by the parties.
VI. Order
The complaint in this case is dismissed.
Case No. 7-CA-70722
DEPARTMENT OF THE AIR FORCE OGDEN AIR LOGISTICS CENTER, HILL AIR
FORCE BASE, UTAH and AIR FORCE LOGISTICS COMMAND WRIGHT-PATTERSON AIR
FORCE BASE, OHIO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1592
Charging Party
Clare A. Jones, Esq. For the Respondents
Timothy Sullivan, Esq. For the General Counsel
Mr. Juan C. Pinedo For the Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereafter, 5 C.F.R. Section 2423.1, et seq., concerns the refusal of
Respondents to bargain with the Charging Party with respect to the
selection of employees for the mobility team at Hill Air Force Base.
This case was initiated by a charge (G.C. Exh. 1(a)) filed on August
11, 1987, which alleged violations of Sections 16(a)(1) and (5) of the
Statute. The Complaint and Notice of Hearing (G.C. Exh. 1(b)) issued on
February 19, 1988, alleged violations of Sections 16(a)(1) and (5) of
the Statute and set the hearing for March 17, 1988, pursuant to which a
hearing was duly held on March 17, 1988, in Ogden, Utah, before the
undersigned. All parties were represented at the hearing, were afforded
full opportunity to be heard, to introduce evidence bearing on the
issues involved and were afforded the opportunity to present oral
argument, which each party waived. At the close of the hearing, May 6,
1988, was fixed as the date for mailing post hearing briefs.
Respondents and General Counsel each timely mailed a post-hearing brief,
received on May 9, 1988, which have been carefully considered. /2/ Upon
the basis of the whole record, /3/ including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
Findings
1. At all times material, the American Federation of Government
Employees, AFL-CIO (hereinafter "AFGE") has been certified as the
exclusive representative of a nationwide bargaining unit of employees
employed by the Air Force Logistics Command (hereinafter AFLC),
including, among others, all non-supervisory, non-professional employees
of AFLC and excluding, among others, all management officials,
supervisors, professional employees, employees engaged in federal
personnel work other than in a purely clerical capacity, employees paid
from non-appropriated funds and temporary appointments not to exceed one
year. This unit includes employees of the Ogden Air Logistics Center
(hereinafter "Ogden"). At all times material, the American Federation
of Government Employees, AFL-CIO, Counsel 214 (hereinafter "Council
214") has been an affiliate and agent of AFGE, and at all times
material, the American Federation of Government Employees, AFL-CIO,
Local 1592 (hereinafter "Local 1592") has been an affiliate and agent of
Council 214 and of AFGE (G.C. Exh. 1(b)).
2. At all times material, Mr. William S. Shoell has been Executive
Vice-President of Council 214, and President of Local 1592 (Tr. 41).
Mr. Shoell testified that he has been delegated authority by the
President and Executive Board of Council 214, as President of Local
1592, to initiate bargaining with respect to any issue relating to Ogden
(Tr. 53, 56); however, the record contains no evidence or testimony
that Council 214 and AFLC ever agreed to submit the bargaining request
involved herein, see Paragraph 8, infra, to local negotiations as
provided in the Agreement of the Parties and more fully set forth in
Paragraph 3, infra.
3. At all times material herein, AFLC and Council 214 have been
parties to a collective bargaining Agreement (G.C. Exh. 7) covering the
employees in the unit more fully described in Paragraph 1, above.
Article 33 of the Agreement is entitled "Negotiations During The Term of
the Agreement" and in Section 33.02 c. provides that,
"c. The parties may mutually agree to delegate responsibility for
negotiations to subordinate activities and local Union officials."
/4/ (G.C. Exh. 7, Art. 33, Sec. 33.02 c., p. 128)
From February 15, 1980, to August 5, 1987, Local 1592 and Ogden were
parties to a Memorandum of Understanding (G.C. Exh. 5) which was
replaced by a Local Supplemental Agreement effective August 6, 1987 (G.
C. Exh. 6). Article 4(s), Section 2 of the Local Supplemental Agreement
provides, in relevant part, that,
". . . Notification of changes in local conditions of employment
will be in accordance with Article 33 of the Master Labor
Agreement (G.C. Exh. 7)." (G.C. Exh. 6, Art. 4(s) 2, p. 4)
4. For at least the last eighteen years there has been a Directorate
of Distribution Mobility Team ("DMT") at Ogden and at each of the other
four AFLC Centers (Tr. 34, 50-51). The function of each DMT is to move
manpower and equipment of tenant organizations overseas or bring them
back from overseas (Tr. 16, 17). DMTs participate in mobility exercises
which are conducted about every six weeks and may last from a day to a
week (Tr. 17).
The only qualification for service on the Ogden DMT is employment at
Hill AFB. Upon selection, an applicant must then complete a formal
classroom training program in the Mobility Command Center which lasts a
week (Tr. 19). Members of the DMT may work in classifications
essentially the same as their regular classifications (Tr. 19) but many
do not. Indeed, one of the two chief inducements to service on the DMT
is the opportunity to break the monotony of the daily routine by doing
something wholly different, and the other is the opportunity to earn
overtime pay. When serving on the DMT, employees work twelve hour
shifts and are paid at their regular rate of pay (Tr. 38).
5. Ordinarily, the DMT is staffed by volunteers; service is for
eighteen months; and a member is required to obtain a replacement in
order to be released (Tr. 21); however, if there were insufficient
volunteers, supervisors select employees to fill the remaining slots.
Neither the Agreement (G.C. Exh. 7) nor the local supplemental
agreements (G.C. Exhs. 5 and 6) make reference to DMTs.
6. In June, 1987, two unit employees came to the Union to express
their displeasure over being designated to serve on the DMT (Tr. 22).
On July 2, 1987, the Union submitted an information request concerning
the selection procedures used by management to staff the DMT (G.C. Exh.
2, Tr. 23).
7. Respondent responded by conducting a briefing on July 21, 1987,
for the Union on the DMT and the selection procedures used (Tr. 24),
which, in the final analysis, was that if there were not enough
volunteers, each division was required to provide a quota to fill the
vacancies and this requirement filtered down to the branch level where
the supervisor was permitted to select at his discretion (Tr. 24).
8. On July 23, 1987, Mr. Shoell, as President of Local 1592, by
letter made a demand to bargain mid-term, ". . . on the selection and
appointment of individuals to the mobility team." (G.C. Exh. 3). Mr.
Shoell further stated that, "Local 1592 feels that there needs to be a
procedure set up in regards to selecting employees when there are not
enough volunteers available to be assigned to mobility and other such
exercises." (G.C. Exh. 3). Mr. Shoell also named the members of his
bargaining team.
9. On July 28, 1987, Respondent replied and stated, in part, that,
"2. The augmentee selection process has remained unchanged
since its inception many years ago. Therefore, there is no
'change in conditions of employment' regarding this issue. . . .
"3. Based on the above, bargaining on this subject is
inappropriate." (G.C. Exh. 4).
In subsequent discussions, Respondent repeated that selection of
employees to fill vacancies was a management retained right and if the
Union had problems with it, the Union could take care of it on a case by
case basis through the grievance procedure (Tr. 27-28).
10. On or about, November 6, 1987, AFLC, i.e., at the national
level, submitted proposals on Union initiated mid-term bargaining; on,
or about, November 13, 1987, Council 214 submitted counterproposals;
and on, or about, November 25, 1987, Council 214 requested the
assistance of the Federal Mediation and Conciliation Service (Tr.
70-71). /5/
Conclusions
A. Union Initiated Mid-Term Bargaining
Prior to 1987, agencies or activities were not obligated to bargain
over union-initiated mid-term bargaining proposals, except where
management sought to change some established condition of employment, or
where the agreement of the parties provided for reopening. Internal
Revenue Service, 17 FLRA 731 (1985); Internal Revenue Service (District
Office Unit), Department of the Treasury, 18 FLRA 361 (1985). The
union, National Treasury Employees Union, sought review of these two
decisions and the United States Court of Appeals for the District of
Columbia Circuit, in a consolidated decision, set aside the Authority
decisions, National Treasury Employees Union v. Federal Labor Relations
Authority, 810 F. 2d 295 (D.C. Cir. 1987). The decision of the Court of
Appeals, issued February 3, 1987, and amended February 10, 1987,
preceded Local 1592's July 23, 1987, demand to bargain; however, the
Authority's decision, Internal Revenue Service and National Treasury
Employees Union, 29 FLRA No. 12, 29 FLRA 162 (1987) (hereinafter
referred to as "IRS"), issued on September 28, 1987, after Local 1592's
demand to bargain and after Respondent's declination,
The Authority in its IRS decision, supra, stated in part:
". . . we conclude that the duty to bargain in good faith imposed
by the Statute requires an agency to bargain during the term of a
collective bargaining agreement on negotiable union-initiated
proposals concerning matters which are not addressed in the
agreement and were not clearly and unmistakably waived by the
union during negotiation of the agreement. Previous Authority
decisions not consistent with this conscusion will no longer be
followed." (29 FLRA at 167).
In this case, neither the DMT nor its selection was covered by any of
the collective bargaining agreements, and there is no evidence or
testimony that shows, or purports to show, that the Union had waived its
right to negotiate this particular matter although, for reasons set
forth hereinafter, the Union may by the provisions of its Agreement (G.
C. Exh. 7) have waived its right to bargain mid-term on any Union
initiated proposal to change conditions of employment other than Union
proposed changes negotiated in supplemental agreements as authorized by
Article 34 of the Agreement (G.C. Exh. 7, Article 34); and except, of
course, that negotiation of a collective bargaining agreement did, prior
to 1987, pursuant to Authority law, preclude mandatory negotiations on
union-initiated proposals in the absence of management's change of
conditions of employment or a reopening provision in the agreement.
Moreover, while the Union /6/ at the time Respondent refused to
negotiate /7/ had not formulated a specific selection procedure, the
Authority has held that a proposal that parties develop a system for
rotation of work among qualified employees is negotiable. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA 83 (1981);
Veterans Administration Staff Nurses Council, Local 5032, WFNHP, AFT,
AFL-CIO, 29 FLRA No. 62, 29 FLRA 849, 865 (1987). Consequently, there
is no basis in the record to indicate that the Union's proposal for a
procedure to select employees would have infringed management's rights.
B. COULD LOCAL 1592 INITIATE MID-TERM BARGAINING?
Where, as here, local bargaining units have been consolidated into a
national unit, the agency may refuse to bargain with the local unit
unless the parties have agreed to permit supplemental negotiations at
the local level. Department of Health and Human Services, Social
Security Administration, 6 FLRA 202 (1981); Overseas Education
Association, 7 FLRA 84 (1981); Social Security Administration,
Mid-Atlantic Program Service Center, Kansas City, Missouri, 10 FLRA 15
(1982); Social Security Administration, 11 FLRA 390 (1983); Department
of Health and Human Services, Social Security Administration, Dallas
Region, Dallas, Texas, 23 FLRA 807 (1986).
Here, the Agreement of the parties (hereinafter also referred to as
"MLA"), G.C. Exh. 7, Article 33, addresses mid-term bargaining both at
Command level i.e., the level of recognition, (Section 33.01 and 33.02)
and at Activity level (Section 33.03); however, each Section
contemplates management initiated changes. /8/ In addition, Article 34
provides for local supplements to the Master Agreement /9/ (G.C. Exh.
7, Article 34). The current Local Supplement between Respondent and
Local 1592 (G.C. Exh. 6) (hereinafter referred to as "Supplement"), as
noted above, makes no reference to the DMT nor its selection.
Quite probably the reason that the MLA makes no reference to Union
initiated proposals for changes in conditions of employment is that, at
the time the MLA was negotiated (Signed September 24, 1986), agencies
were not obligated to bargain, mid-term, on union initiated changes in
conditions of employment. Nevertheless, it is obvious that AFLC did, in
the MLA, provide for Union initiated proposals in the Supplement but not
otherwise. Of course, when the Supplement was negotiated (Signed July
23, 1987), it is immaterial whether the parties were, or were not, aware
of the decision of the Court of Appeals (810 F. 2d 295) for the reasons
that: (a) although the Authority's decision in IRS, supra, had not
issued, the MLA specifically reserved the right for the Union to
negotiate, albeit mid-term, a local supplement; and (b) even more
important, Article 34, Section 34.02, provided that only, ". . . One
supplemental agreement may be negotiated at each subordinate activity .
. . ." (G.C. Exh. 7, Article 34, Section 34.02); notwithstanding that
Section 34.02 specifically provides that, ". . . this Article shall not
affect the right of the Employer to propose and change personnel
policies, procedures, and matters affecting conditions of employment
during the term of this Agreement when such are not governed by this
Agreement or local supplements. . . ." (G.C. Exh. 7, Article 34, Section
34.02).
Consequently, Ogden was not obligated to bargain on the mid-term
proposals initiated by Local 1592 concerning DMT because: 1) Article
34, Section 34.02 (G.C. Exh. 7, Article 34, Section 34.02) specifically
limits Union initiated mid-term negotiations to a single supplemental
agreement. The Union negotiated the Supplemental and, by agreement, the
right of Local 1592 to initiate further mid-term bargaining proposals
had been waived; 2) Article 33, Section 33.02 c. (G.C. Exh. 7, Article
33, Section 33.02 c.) permits local negotiations only by mutual
agreement of Council 214 and AFLC. /10/ General Counsel introduced
testimony that would support delegation of negotiation authority to Mr.
Shoell, President of Local 1592, by Council 214, although the record
does not show that Ogden or AFLC was ever advised of the delegation.
Nevertheless, nothing in the record shows any delegation by AFLC to
Ogden to bargain mid-term on Union initiated proposals. To the
contrary, the record shows that AFLC had raised, and was actively
pursuing, the question of the right of the Union under the Agreement to
bargain mid-term. Accordingly, since there was no mutual agreement of
the Parties for local bargaining, Ogden was under no obligation to
bargain with the Union. /11/
Stated otherwise, the Union, Local 1592, was precluded by the terms
of the MLA from initiating mid-term bargaining.
C. COULD COUNCIL 214 INITIATE MID-TERM BARGAINING?
Obligations to bargain are governed by the state of the law at the
time a case is decided, Department of the Air Force, Scott Air Force
Base, Illinois, 33 FLRA No. 73, 33 FLRA 532, 544 (1988); U.S.
Department of the Treasury, 27 FLRA 919 (1987), so, for the reasons set
forth above, Council 214 could, indeed, have initiated mid-term
bargaining on DMT; but it did not. General Counsel does not assert
that Council 214 initiated, or sought to initiate, mid-term bargaining
on DMT, but, rather, asserts that Respondent did not, on July 28, 1987,
when it declined to bargain on the Union's (Local 1592's July 23, 1987,
letter) demand, raise the question of Local 1592's lack of authority to
initiate mid-term bargaining. It is true that Respondent refused to
bargain, i.e., found ". . . bargaining on this subject is inappropriate"
principally because the ". . . selection process has remained unchanged
since its inception many years ago. Therefore, there is no 'change in
conditions of employment' regarding this issue . . . ." (G.C. Exh. 4),
which all parties fully understood meant that, absent management change
of conditions of employment, management had no obligation to bargain
mid-term on the Union's request concerning selection for the DMT. It is
further true that Respondent did not cite, or assert reliance on,
specific portions of the MLA as a bar to Local's 1592's bargaining
demand. Under some circumstances a failure to assert a defense will bar
the later assertion of the defense, but there is no basis to bar the
assertion of the contract defense in this case. First, at the time it
refused to bargain, Respondent's position was fully in accord with
Authority case law and its asserted defense was a full and complete bar
to any obligation to bargain mid-term on union initiated proposals,
absent management change of established conditions of employment or a
contractual right to reopen during the term of the contract. Second,
the Union was not prejudiced by Respondent's failure to assert a
contract defense. At the time Respondent refused to bargain - and,
indeed, at the time the Union filed its unfair labor practice charge on
August 11, 1987 (G.C. Exh. 1( a) - it was immaterial whether the Union,
i.e. Local 1592, or Council 214, had initiated the request to bargain.
Respondent's response neither prevented nor dissuaded the Union from
seeking to initiate mid-term bargaining through Council 214. The Union,
however, elected to file its charge on August 11, 1987; but AFLC, in
November, 1987, raised the issue of union initiated mid-term bargaining
in negotiations with Council 214. Third, the Authority's decision in
IRS on September 28, 1987, rendered Respondent's July 28, 1987, defense
vulnerable. The Union, notwithstanding its charge, could have renewed
its demand to bargain; but it did not. Respondent might have told the
Union its defense still barred any obligation to bargain because it, the
Union, had waived the right to bargain mid-term or could have told the
Union it had other defenses; but it did not. Each had the right to do
as it did. Indeed, if the refusal to bargain on July 28, 1987, was in
violation of the Statute, it would have constituted an unfair labor
practice even if Respondent had later bargained, either in response to
the original demand to a new demand. Fourth, the Union did not rely to
its detriment on Respondent's failure to assert its contract defense on
July 28, 1987.
Although Council 214 could, pursuant to the Authority's IRS decision
and in accordance with the MLA, have generated a bargaining obligation
mid-term on DMT, it did not. The sole allegation of the Complaint is
that Respondent Ogden refused to bargain with Local 1592, the Union, in
violation of Sections 16(a)(5) and (1) of the Statute. While there is
no dispute that Respondent refused to bargain with Local 1592, for
reasons set forth above, its refusal to do so did not violate either
Section 16(a)(5) or Section 16(a)(1). Internal Revenue Service, Ogden
Service Center, Ogden, Utah, 16 FLRA 777 (1984). Therefore, it is
recommended that the Authority adopt the following:
ORDER
The Complaint in Case No. 7-CA-70722 be, and the same is herby,
dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: January 11, 1989
Washington, D.C.
FOOTNOTES
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(1) will be referred to,
simply, as "Section 16(a)(1)".
(2) By Order dated May 18, 1988, the undersigned denied General
Counsel's motion to strike Respondents' post-hearing brief.
(3) Counsel for the General Counsel filed with his brief a Motion to
Correct Transcript, to which no opposition was filed. The motion is
granted and the transcript is hereby corrected as more fully set forth
in the Appendix hereto.
(4) Section 33.02 deals with "Negotiations At Command Level"; but
Section 33.03, which deals with "Negotiations at Activity Level,"
incorporates the provisions of Section 33.02 c. by the language in
subsection 33.03 a.(2) which provides:
"(2) Upon notification that activities and local Unions have been
delegated negotiation responsibilities in accordance with Section
33.02 c. . . ."
(5) I am aware that AFLC's proposals on union initiated mid-term
bargaining were in response to certain bargaining requests by Council
214 on other matters.
(6) The Union, in its July 23, 1987, demand to bargain, stated only
that,
"2. Local 1592 feels that there needs to be a procedure set up in
regards to selecting employees when there are not enough
volunteers . . . ." (G.C. Exh. 3).
(7) Respondent stated, in part, that it refused to negotiate because,
". . . there is no 'change in conditions of employment'
regarding this issue . . .
"3. Based on the above bargaining on this subject is
inappropriate." (G.C. Exh. 4).
(8) Thus, Section 33.02 provides, in relevant part, that,
"a. The Labor Relations Office will notify the designated
Union official . . . of the intended changes in conditions of
employment . . . ." and
"b. If the Union wishes to negotiate . . . concerning proposed
changes, the Union will submit written proposals . . . ." (G.C.
Exh. 7, Section 33.02 a and b); and
Section 33.03 provides, in relevant part, that,
"a. Activity-wide changes in local conditions of employment .
. . will be brought to the attention of local Union officials . .
. ." and
"b. changes in local conditions of employment at echelons
below the activity commander will be brought to the attention of
the Union representative designated to be contacted . . . ." (G.
C. Exh. 7, Section 33.03 a and b).
(9) However, only one supplemental agreement may be negotiated at
each subordinate AFLC activity (G.C. Exh. 7, Article 34, Section 34.02).
(10) "c. The parties may mutually agree to delegate responsibility
for negotiation to subordinate activities and local Union officials."
(G.C. Exh. 7, Article 33, Section 33.02 c.)
(11) It might be argued that, because union initiated proposals for
changes of conditions of employment are not referred to in either
Section 33.02 or 33.03, Section 33.02 c. is not applicable to union
proposals. I do not agree. The effect of the Authority's IRS decision
is to "amend" Sections 33.02 and 33.03 to incorporate, by operation of
law, the right of the union to generate a bargaining obligation i.e.,
the "when", but has no effect whatsoever on that portion of the parties'
Agreement, Section 33.02 c., which governs the manner, i.e., the "how",
negotiations are to be conducted. Section 33.02 c. clearly reflects the
intention of the parties to retain absolute control of all mid-term
bargaining at the level of exclusive recognition. To this end, Section
33.03 a.(2) (negotiation at Activity level) incorporates 33.02 c. The
parties, i.e., Council 214 and AFLC, while retaining control of all
mid-term bargaining, may be mutual agreement delegate responsibility to
subordinate activities and local union officials. Consequently, while
the Authority's IRS decision has given a general right to unions to
initiate, mid-term, proposals to change conditions of employment, here,
Section 33.02 c. by its unrestricted terms governs all mid-term
negotiations.
39 FLRA 1381
39 FLRA NO. 121
Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio and AFGE, Local
1592, Case No. 7-CA-80270 (Decided March 22, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
REFUSAL TO BARGAIN
AGENCY REGULATION
MID-TERM BARGAINING
WAIVER
GROUND RULES NEGOTIATIONS COMPLETION
DIGEST NOTES
The complaint alleged that the Respondents violated section 7116(a)(
1) and (5) when they declined the request of the Union to bargain over a
regulation entitled "Inspection of Government Provided Property." At the
outset of its analysis, the Authority concluded that it could not
clearly be demonstrated from the wording of the proposal whether it
related to and was an attempt to bargain over management's proposed
change in the regulation, or whether it was a Union-initiated proposal
unrelated to the change proposed by mangement. In the Authority's view,
given the ambiguity in the language of the proposal, the fact that the
Union characterized its proposal as a new proposal unrelated to
management's change is entitled to considerable weight. Where the
request could logically fit either description, the Union could expect
its description to be relied upon. The Authority concluded, as there is
a reasonable basis for finding the proposal a new proposal, the proposal
resulted from union-initiated mid-term bargaining.
The Authority then concluded that the Union did not waive its right
to bargain over its mid-term proposal, rejecting the conclusion of the
Judge. The Authority found that clearly, the parties were not basing
their actions on the language of the Master Agreement. On the refusal
to bargain, the Authority found that the refusal pending completion of
ground rules negotiations was not made in good faith, but designed to
delay or avoid the bargaining process.
The Authority concluded that Respondent AFLC, which directed Ogden
not to bargain about union-initiated mid-term proposals until ground
rules were in place, interfered with the bargaining relationship between
Ogden and the bargaining representative, thereby violating 7116(a)(1)
and (5). However, Ogden's refusal to bargain was merely a ministerial
act, and not violative.
Case No. 7-CA-80270
OGDEN AIR LOGISTICS CENTER HILL AIR FORCE BASE, UTAH and AIR FORCE
LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO
(Respondents)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO LOCAL 1592
(Charging Party)
DECISION AND ORDER
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 General Counsel filed an opposition to the exceptions.
The complaint alleges that the Respondents violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) when Respondents declined the request of the Charging
Party to bargain over a regulation entitled "Inspection of Government
Provided Property." The Judge found that the Respondents violated the
Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing and find that no prejudicial error was
committed. We affirm those rulings. For the following reasons, which
differ from those of the Judge, we find that Respondent Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio (AFLC) violated
the Statute. We further find that Respondent Ogden Air Logistics
Center, Hill Air Force Base, Utah (Ogden) did not violate the Statute.
We adopt the Judge's findings, conclusions, and recommendations to the
extent consistent with this decision.
II. Background
American Federation of Government Employees, AFL-CIO, (AFGE) is the
exclusive representative of a nationwide unit of AFLC employees. AFGE,
Council 214 is AFGE's agent, and Local 1592, the Charging Party herein,
is an affiliate of the Council. Local 1592 represents the unit
employees at Ogden's facility.
A. The Regulation and the Change
The regulation at issue, ALC Regulation 123-4, entitled "Inspection
of Government Provided Property," originally was issued in 1979.
Paragraph 4 e. reads:
e. If a private lock is damaged when removed in the absence of
the employee, it will be replaced with a comparable lock or the
owner advised he can present a claim for its value to Claims
Division (JAD).
ALJ Decision at 3-4. With a cover letter dated December 21, 1987,
Respondent Ogden forwarded to the Union for review an amended version of
the regulation, not indicating how the regulation had been change but
asserting that "(t)he only change or addition . . . is . . . a
reaffirmation of existing policy . . . ." ALJ Decision at 3.
Subsequently, Ogden's agent told the Union that the change involved
adding a last sentence to paragraph 4 e., to read:
No replacement or claim is authorized when the employee refuses or
otherwise fails to remove the lock after being duly notified of
the inspection.
Id. at 4.
By letter dated January 4, 1988, the Union requested bargaining over
the regulation and asked that Respondent "remain status quo (sic) until
all bargaining is completed . . . ." Id. The Union also made various
proposals, including the following:
4. All inspections of government property will only be done for
reasonable cause: if there is a suspected violation of crime or
activities, (sic) rules or regulations.
Id.
B. Ogden's Refusal to Bargain
Respondent Ogden initially thought the Union wanted to negotiate over
its change, or addition, to ALC Regulation 123-4. ALJ Decision at 4.
The Union informed the Respondent to the contrary, however, stating that
its demand related not to any changes that management had made to the
regulation, but rather to proposed mid-term bargaining on an independent
proposal of its own initiation. Accordingly, by letter dated January
13, 1988, Ogden informed the Union as follows:
Before we engage in union initiated mid-term bargaining,
procedures must be negotiated. As you are aware, the parties are
currently negotiating procedures at the command and council level.
Therefore, your proposals are returned without action until such
time as procedures are in place.
Id. at 5.
By letter dated March 28, 1988, the Union renewed its demand to
bargain on the regulation, stated that it had "authority from Council
214 to bargain on this matter" and requested that if Ogden's labor
relations officer did not have authority to bargain, the bargaining
demand be forwarded to the appropriate office.
On April 19, 1988, Ogden wrote to the Union stating that it failed to
understand why the Union would need authority from the Council to
bargain on the regulation, and repeating that the proposals had been
returned because procedures for union-initiated mid-term bargaining were
being negotiated at the command level. Ogden further noted that its
earlier letter "did not specifically state but did imply (the Union)
could resubmit (its) proposals once the procedures were in place." Id.
Ogden's labor relations officer, Kay Self, testified that she was
instructed by AFLC not to enter into negotiations on union-initiated
mid-term proposals until procedures, which were then being negotiated,
were in place.
C. Related Cases Involving the Parties Herein
The Authority has decided two cases involving the same or related
parties that turned on whether AFLC was acting in good faith in refusing
to bargain about mid-term proposals initiated by Council 214, allegedly
because AFLC was waiting for comletion of bargaining over ground rules
for mid-term negotiations. U.S. Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 36 FLRA 524 (1990) (Wright-Patterson I), and U.S.
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 36 FLRA 912 (1990)
(Wright-Patterson II). /1/
Both cases involved bargaining between the Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio (Respondent AFLC herein)
and AFGE Council 214, of which the Union is a constituent local, about
mid-term bargaining procedures, or ground rules. Both arose
contemporaneously with the instant case. Thus, union-initiated mid-term
proposals in Wright-Patterson I were made on October 15 and November 3,
1987, and Respondent AFLC responded on November 6, 1987, with proposals
for procedures by which to conduct the bargaining. AFLC returned the
union's proposals and declined to bargain on the union-initiated
substantive proposals until the ground rules were in place. /2/ In
Wright-Patterson II, the union made mid-term proposals in December 1987,
and on December 24, 1987, AFLC again returned the union's proposals and
refused to participate in mid-term bargaining on union-initiated
proposals until ground rules were in place. /3/ It was clear that the
respondent in Wright-Patterson II, AFLC was basing its refusal to
bargain on the same proposals on ground rules that it had made in
Wright-Patterson I. /4/
In both cases, the Authority concluded that the refusal to bargain
was not in good faith, finding that, among other things, the content of
the ground rules proposals indicated a desire to "delay, or avoid, the
bargaining process." Wright-Patterson II, 36 FLRA at 917, quoting
Wright-Patterson I, 36 FLRA at 533. Accordingly, the Authority found in
both cases that AFLC's refusal to bargain over the mid-term proposals
violated section 7116(a)(1) and (5) of the Statute.
The bargaining demand in the instant case was made on January 4,
1988, and Respondent Ogden declined to bargain on January 13, because it
claimed "the parties are currently negotiating procedures at the command
and council level." ALJ Decision at 5. Clearly, the procedures being
considered were the same as those proposed by Respondent AFLC on
November 6, 1987, in Wright-Patterson I and cited as the basis for
Respondent AFLC's refusal to bargain on December 24, 1987, in
Wright-Patterson II. /5/
III. Administrative Law Judge's Decision
The Judge found, despite the assertions of both parties to the
contrary, that the Union's proposal regarding inspection of government
property was made in response to the change in the regulation proposed
by Ogden and that the Union's demand to bargain was not a
Union-initiated mid-term bargaining request. Therefore, he concluded
that the Respondents had an obligation to bargain over the proposal at
issue here. In view of that conclusion, the Judge found that the
refusal to bargain violated section 7116(a)(1) and (5) of the Statute.
The Judge found that AFLC violated the Statute by instructing Ogden
not to enter into mid-term negotiations until procedures were in place.
Although the Judge acknowledged the reluctance of the Authority to find
a violation against an activity that acts ministerially and without
discretion, he found that, in the circumstances, Ogden, as well as AFLC,
violated the Statute. He based this cnclusion on the fact that Ogden
acquiesced in the Union's assertion that the proposals were intiated by
the Union, although Ogden initially had concluded that the proposals
were in response to Ogden's changes in the regulation.
The Judge stated that if it should be determined that the Union's
proposal was not related to Ogden's change in the regulation, but rather
was a Union-initiated mid-term bargaining proposal, he would find no
violation "for the reasons fully set forth" in his decision in
Wright-Patterson IV. ALJ Decision at 8. /6/
IV. Positions of the Parties
In their exceptions, the Respondents argue that the Judge improperly
changed the complaint and decided the case on an issue that was not
recognized by the parties when he found that the proposal was not
Union-initiated, but rather was a response to Ogden's change.
Therefore, they ask that the Judge be reversed, or that the case be
reopened and remanded to the Judge to be heard on the basis of the
issues as he perceived them.
The Respondents also except to the Judge's findings that Ogden
acquiesced in the Union's assertion that its proposals were
Union-initiated bargaining and that the order of the AFLC was a
contributing cause of the refusal to bargain, and to the Judge's
recommendation that Ogden be held liable for any violations of the
Statute.
The General Counsel contends that the complaint is broad enough to
encompass the violation found. Although the basis of the violation was
other than that originally advanced, the General Counsel argues that
there is no requirement that the Judge or the Authority limit
consideration of a case strictly to those theories and issues addressed
by the parties.
Also, the General Counsel disputes the Respondents' contention that
the record should be reopened to give them sufficient opportunity to
develop the record in connection with the allegations as viewed by the
Judge. In support of that position, the General Counsel notes that
there is no showing that the Respondents were prejudiced by the conduct
of the hearing.
In addition to opposing the Respondents' exceptions, the General
Counsel also addresses the Judge's "alternate" holding that there would
be no violation if it were later determined, contrary to the Judge's
finding, that the proposal was Union-initiated. The General Counsel
argues that neither the present case nor the record in Wright-Patterson
IV supports the Judge's conclusion, based on his interpretation of the
MLA, that AFGE waived its right to initiate mid-term bargaining.
V. Analysis and Conclusions
Contrary to the Judge, we conclude that the proposal was initiated by
the Union. There is a duty to bargain over union-initiated mid-term
bargaining proposals over matters not addressed in the parties'
agreement unless the union has waived the right. Internal Revenue
Service, 29 FLRA 162 (1987) (IRS). Contrary to the Judge's alternative
disposition of this case, we find that AFGE did not waive Local 1592's
right and that there was a duty to bargain on the proposals. Finally,
we conclude that the responsibility to bargain resided only with AFLC.
Ogden's refusal to bargain was ordered by AFLC, and Ogden was left with
no discretion to bargain over the mid-term proposal. Accordingly, we
will dismiss the complaint against Ogden.
A. The Proposal Was Union-Initiated
On December 21, 1987, Ogden sent for Union review an amended version
of ALC Regulation 123-4 to William S. Shoell, president of Local 1592.
The Judge gave no weight to Shoell's testimony that the Union's
subsequent bargaining demand did not relate to any changes which
management had made to the regulation, "(i)n view of Mr. Shoell's
self-serving insistence that the Union's proposals were union
initiated(.)" ALJ Decision at 7 n.5. Nevertheless, it is uncontroverted
that (1) on January 8, Shoell informed Ogden's labor relations officer
that the proposal was Union-initiated and not a response to management's
regulation change; and (2) from that time, Ogden treated the proposal
as Union-initiated mid-term bargaining.
Moreover, we note Shoell's explanation that he decided to make the
proposal because "(a)fter reading paragraph one where . . . management
could do an inspection for any reason they wanted to at any time, I had
a problem with that . . . . I thought there should be a reasonable
cause." Tr. 21. /7/ In our view, this testimony demonstrates the
plausibility of a finding that the Union was in fact initiating
bargaining on ALC Regulation 123-4 in general. Indeed, the Judge
conceded that "(t)he Union's proposal about 'reasonable cause', . . .
does, certainly, directly relate to '. . . subject to inspection for any
reason . . .' of Paragraph 1(.)" However, the Judge then states:
(that the proposal) could also directly relate to "refuses or
otherwise fails to remove (of paragraph 4 e.)," i.e., unless the
employee for "reasonable cause" refuses, etc. In any event, even
if the Union's "reasonable cause" proposal were deemed to relate
solely to Paragraph 1, . . . as part of the same Base Regulation,
the Union's proposal related to the change which Ogden sought to
make . . . .
ALJ Decision at 7-8.
We do not agree. If it could be established that the proposal in
fact related only to a part of the regulation that had not been changed
by Ogden, we would not find that the proposal related to that change.
In other words, if the Union's "reasonable cause" proposal related
solely to Paragraph 1, the proposal would clearly be a Union-initiated
effort to change a condition of employment. On the other hand, if it
could be shown that the Union proposal only related to the part of
paragraph 4 e. that Ogden had changed, it would be a response to Ogden's
change. Despite the Judge's analysis, we conclude that either
interpretation is reasonable.
Therefore, based on the foregoing, we conclude that it cannot be
clearly demonstrated from its wording whether Union proposal 4 related
to and was an attempt to bargain over management's proposed change in
the regulation, or whether it was a Union-initiated proposal unrelated
to the change proposed by management.
In our view, given the ambiguity in the language of the proposal, the
fact that the Union characterized its proposal as a new proposal
unrelated to management's change is entitled to considerable weight.
Where the request could logically fit either description, the Union
could expect its description to be relied upon, and Ogden could, and
did, rely on the Union's assertion in these circumstances. Accordingly,
as there is a reasonable basis for finding the proposal to be a new
proposal as asserted by the Union and Ogden relied on that assertion, we
conclude that the proposal resulted from union-initiated mid-term
bargaining.
B. AFGE Did Not Waive Local 1592's Right to Bargain over Its
Mid-term Proposal
In view of our determination that the proposal was a Union-initiated
request for mid-term bargaining, there was an obligation to bargain
unless AFGE had waived Local 1592's right. IRS. Under these
circumstances, the Judge stated that he would nevertheless find no
violation for the reasons set forth in his decision in Wright-Patterson
IV. We find, however, that the Judge's analysis in that case is
inapposite. The sole reason that Ogden here refused to bargain was its
insistence that it wait until the procedures for mid-term bargaining
were in place. The Respondents did not raise the negotiated agreement
as a bar, or argue that Local 1592 needed to have a delegation of
authority from the Council, or that such delegation had to be agreed
upon by the Council and AFLC under the terms of the parties' MLA, as was
done in Wright-Patterson IV. In fact, in this case, after Ogden had
refused to bargain, Shoell renewed the demand and stated that he had
authority from the Council to bargain on the matter, and asked Ogden's
representative to forward the request to the proper office if she were
not the person with authority to bargain on behalf of management. The
representative answered, "I . . . fail to see why you would need the
authority from Council 214 to bargain on (the regulation)." ALJ Decision
at 5. Clearly, the parties were not basing their actions on the
language of the MLA as interpreted by the Judge. Accordingly, we
conclude that the Judge's decision in Wright-Patterson IV is not
relevant here.
C. The Refusal to Bargain Pending Completion of Ground Rules
Negotiations Was Not Made in Good Faith
As detailed above in section II C., the ground rules proposals that
were raised by Ogden in this case as the basis for its refusal to
bargain on the Union's mid-term proposals were the subject of analysis
in Wright-Patterson I and II. We concluded in those cases that the
refusal to bargain was not in good faith, finding, among other things,
that the content of the ground rules proposals indicated a desire to
"delay, or avoid, the bargaining process." Wright-Patterson II, 36 FLRA
at 917, quoting Wright-Patterson I, 36 FLRA at 533. We reach the same
conclusion here.
We note in addition that the timing of the events in Wright-Patterson
I and II is so close to the events here that it lends further support to
our finding of bad faith. The refusals to bargain over Council 214's
proposals in Wright-Patterson I and II occurred on November 6 and
December 24, 1987, respectively; the request to bargin in this case was
on January 4, 1988, and the refusal occurred on January 13, 1988. Thus,
three times in a period of 2 months AFLC, or Ogden at AFLC's request,
refused to meet its obligation to bargain over union-initiated mid-term
proposals. And each refusal was based on the insistence that the
parties must first agree upon ground rules, which, as found by the
Authority, were designed to delay or avoid the bargaining process.
D. Respondent AFLC Violated the Statute; the Complaint Against
Respondent Ogden Will Be Dismissed
It is undisputed that AFLC directed Ogden not to bargain about
union-initiated mid-term proposals until ground rules were in place. As
we have found that this refusal was a failure to bargain in good faith,
we find that AFLC interfered with the bargaining relationship between
Ogden and the exclusive representative of its employees, AFGE, and
thereby violated section 7116(a)(1) and (5) of the Statute.
Although the Judge found that Ogden was instructed by AFLC not to
enter into Union-initiated mid-term negotiations until procedures were
in place, ALJ Decision at 8, he nevertheless found that Ogden did not
act without discretion. He reached this conclusion because "it was
Ogden who acquiesced with the Union's assertion that its proposals were
Union initiated mid-term bargaining proposals, although Ogden had
initially reached a contrary conclusion." Id. at 9 (emphasis in
original). In the Judge's view, Ogden had the discretion to decide that
the proposal was Union-initiated and when it exercised that discretion,
it violated the Statute, because otherwise, it would have been free to
bargain over the Union's proposal as a response to its own change in the
regulation.
It is unnecessary to pass on the merits of the Judge's analysis in
view of our conclusion that the proposal was initiated by the Union.
The orders of AFLC left Ogden with no discretion to bargain over
Union-initiated mid-term proposals until ground rules were in place.
Consequently, Ogden's refusal to bargain was merely a ministerial act,
and we shall dismiss the complaint as to Ogden. Departments of the Army
and the Air Force National Guard Bureau and Montana Air National Guard,
10 FLRA 553, 556 (1982), rev'd on other grounds sub nom. Montana Air
National Guard v. FLRA, 703 F.2d 577 (9th Cir. 1984).
V. Order
Pursuant to section 2423.29 of the Rule and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, we
order that Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio shall:
1. Cease and desist from:
(a) Directing Ogden Air Logistics Center, Hill Air Force Base,
Utah (Ogden) to fail or refuse to bargain with American Federation
of Government Employees, AFL-CIO, Local 1592, an affiliate of the
agent of the exclusive representative of its employees, concerning
the Union's mid-term bargaining proposal on "reasonable cause" for
inspections under Regulation ALC Regulation 123-4.
(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 Statute:
(a) Inform Ogden and the Union, in writing, that Ogden is free
to negotiate with the Union concerning the Union's mid-term
bargaining proposal on "reasonable cause" for inspections under
ALC Regulation 123-4.
(b) Upon request, direct Ogden to bargain, to the extent
consistent with applicable law, rule and regulation, with American
Federation of Government Employees, AFL-CIO, Local 1592, an
affiliate of the agent of the exclusive representative of its
employees, concerning the Union's mid-term bargaining proposal on
"reasonable cause" for inspections under ALC Regulation 123-4.
(c) Post at its facilities at Ogden Air Logistics Center, Hill
Air Force Base, Utah, where bargaining unit employees represented
by American Federation of Government Employees, AFL-CIO, Local
1592 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, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including 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,
Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to
comply.
It is further ordered that the complaint in this case against Ogden
Air Logistics Center, Hill Air Force Base, Utah be dismissed.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT direct Ogden Air Logistics Center, Hill Air Force Base,
Utah (Ogden) to fail or refuse to bargain with American Federation of
Government Employees, AFL-CIO, Local 1592, an affiliate of the ageny of
the exclusive representative of our employees, concerning the Union's
mid-term bargaining proposal on "reasonable cause" for inspections under
ALC Regulation 123-4.
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 Statute.
WE WILL inform Ogden and the Union, in writing, that Ogden is free to
negotiate with the Union concerning the Union's mid-term bargaining
proposal on "reasonable cause" for inspections under ALC Regulation
123-4.
WE WILL, upon request, direct Ogden to bargain to the extent
consistent with law, rule and regulation, with American Federation of
Government Employees, AFL-CIO, Local 1592, an affiliate of the agent of
the exclusive representative of our employees, concerning the Union's
mid-term bargaining proposal on "reasonable cause" for inspections under
ALC Regulation 123-4.
(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, Denver Regional Office, Federal Labor Relations
Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver,
Colorado 80204, and whose telephone number is: (303) 844-2774.
Case No. 7-CA-80270
OGDEN AIR LOGISTICS CENTER HILL AIR FORCE BASE, UTAH, and AIR FORCE
LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1592
Charging Party
Clare A. Jones, Esquire For the Respondents
Mr. Leonard C. Andriason For Local 1592
Matthew Jarvinen, Esquire For the General Counsel
BEFORE: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This matter, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101 et seq., /8/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1 et seq., concerns whether Respondent
Ogden Air Logistics Center, Hill Air Force Base, Utah (hereinafter
referred to as "Ogden") and/or Respondent Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio (hereinafter referred to as
"AFLC") violated Sections 16(a)(5) and (1) of the Statute when
Respondent Ogden issued a proposed amended regulation, 00-ALC Regulation
123-4, entitled "Inspection of Government Provided Property"
(hereinafter referred to as "ALCR 123-4"), and refused to bargain with
American Federation of Government Employees, AFL-CIO, Local 1592
(hereinafter referred to as "Local 1592" or the "Union") on ALCR 123-4.
For reasons more fully set forth hereinafter, as Respondent Ogden was
changing established conditions of employment, by amending ALCR 123-4,
Ogden violated Sections 16(a)(5) and (1), by refusing to bargain,
notwithstanding that the Union's request to bargain did not specifically
address the changes of ALCR 123-4 made by Ogden.
This case was initiated by a charge filed on February 1, 1988 (G.C.
Exh. 1(a)). The Complaint and Notice of Hearing issued on May 25, 1988
(G.C. Exh. 1(b)) and set the hearing for July 13, 1988. By Order dated
June 22, 1988 (G.C. Exh. 1(e)), on motion of Local 1592, for good cause
shown, the hearing was rescheduled for September 13, 1988, and,
subsequently, by Order dated September 7, 1988 (G.C. Exh. 1(f)) was
further rescheduled for September 14, 1988, pursuant to which a hearing
was duly held on September 14, 1988, in Ogden, Utah, before the
undersigned. All parties were represented at the hearing, were afforded
full opportunity to be heard, to introduce evidence bearing on the
issues involved, and were afforded the opportunity to present oral
argument which each party waived. At the close of the hearing, October
14, 1988, was fixed as the date for mailing post-hearing briefs, which
time as subsequently extended, on motion of Respondent, for good cause
shown, to November 10, 1988. Respondent and General Counsel each timely
mailed a brief, received on, or before, November 14, 1988, which have
been carefully considered. Upon the basis of the entire record, /9/
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Findings
1. At all times material, Local 1592 has been the exclusive
representative of all unit employees at Ogden's facility (G.C. Exhs. 1(
b) and 1(c)). Local 1592 is an affiliate and agent of the American
Federation of Government Employees, AFL-CIO, Council 214 (hereinafter
referred to as "Council 214"), which holds exclusive recognition for a
nation-wide unit of AFLC employees. (G.C. Exh. 1(b) and 1(c); Tr.
19). Council 214 and AFLC are parties to a Master Labor Agreement (MLA)
applicable to all AFLC unit employees, which became effective October
22, 1986 (G.C. Exh. 2). Local 1592 and Ogden are parties to a Local
Supplement Agreement (Local Supplement) which became effective August 6,
1987. Neither the MLA nor the Local Supplement addresses the subject of
inspection of government provided property, nor was that subject raised
during the negotiation of either agreement. (G.C. Exhs. 2 and 3; Tr.
25, 26).
2. ALCR 123-4 had been issued in 1979 (G.C. Exh. 4, Attachment). By
letter dated December 21, 1987 (G.C. Exh. 4), Ogden forwarded to Mr.
William S. Shoell, President of Local 1592, for review, an amended
version of ALCR 123-4. Ogden did not indicate how ALCR 123-4 was to be
changed (G.C. Exh. 4, Attachment; Tr. 20) but asserted, ". . . The only
change or addition . . . is . . . a reaffirmation of existing policy . .
. ." (G.C. Exh. 4). Mr. Shoell testified that he called Mr. Dyer
Morse, Labor Relations Specialist, and was told that the change involved
adding a last sentence /11/ to Paragraph 4 e to read as follows:
". . . No replacement or claim is authorized when the employee
refuses or otherwise fails to remove the lock after being duly
notified of the inspection." (G.C. Exh. 4, Attachment; Tr. 20).
3. By letter dated January 4, 1988, Mr. Shoell demanded to bargain,
". . . over 00-ALC Regulation 123-4 and that you remain status quo until
bargaining is completed . . . ." (G.C. Exh. 5). Mr. Shoell made various
proposals including,
" . . .
"4. All inspections of government property will only be done
for reasonable cause: if there is a suspected violation of crime
or activities, rules or regulations." (G.C. Exh. 5).
4. Ms. Kay Self, Ogden's Labor Relations Officer (Tr. 53), testified
that when she received the Union's letter of January 4, 1988, she
". . . took it . . . to mean that they wanted to negotiate the
regulation." (Tr. 54).
That is, more accurately, that the Union wanted to negotiate the change,
or addition, poposed by Ogden. Ms. Self further testified that in a
conversation with Mr. Shoell on January 8, 1988, Mr. Shoell,
". . . said it was union initiated midterm bargaining." (G.C.
Exh. 6; Tr. 54).
That is, as Mr. Shoell testified, his demand to bargain did not, ". . .
relate to any changes which management made to the Hill Air Force Base
Regulation." (Tr. 21, 30).
5. Accordingly, by letter dated January 13, 1988, (G.C. Exh. 6), Ms.
Self advised Mr. Shoell,
"Reference the subject letter and our conversation of 8 January
1988 concerning union initiated mid-term bargaining. Before we
engage in union initiated mid-term bargaining, procedures must be
negotiated. As you are aware, the parties are currently
negotiating procedures at the command and council level.
Therefore, your proposals are returned without action until such
time as procedures are in place." (G.C. Exh. 6).
6. By letter dated March 28, 1988, Mr. Shoell renewed his demand to
bargain on ALCR 123-4; stated he had ". . . authority from Council 214
to bargain on this matter"; and concuded with the request that:
"3. If you are not the appropriate person with authority to
bargain on behalf of management please forward this letter and all
relevant correspondence to the proper person or office." (G. C.
Exh. 7).
7. Ms. Self replied by letter dated April 19, 1988, (G.C. Exh. 8)
stating that:
"1. I must apologize but I fail to understand the intent of
the subject letter. I also fail to see why you would need the
authority from Council 214 to bargain on 00-ALCR 123-4.
"2. You were previously advised that procedures for union
initiated mid-term bargaining were being negotiated at command
level, therefore your proposals were returned to you. My letter
did not specifically state but did imply you could resubmit your
proposals once the procedures were in place." (G.C. Exh. 8).
8. Ms. Self testified that she was instructed by AFLC not to enter
into Union initiated mid-term negotiations until procedures, being
negotiated, were in place. (Tr. 55).
Conclusions
The parties assert that the Union's demand to bargain on ALCR 123-4
was a Union initiated mid-term bargaining demand because the Union's
proposal was, principally, that inspections be conducted only for
"reasonable cause", which related to Paragraph 1, whereas, Ogden
proposed to change only Paragraph 4 of ALCR 123-4. I do not agree.
There is no dispute that Ogden sought to change ALCR 123-4 by adding
a new sentence to Paragraph 4 e; that Ogden thereby changed conditions
of employment; or that Ogden gave the Union notice of the change of
conditions of employment pursuant to Section 33.03 of the Master Labor
Agreement (G.C. Exh. 2 and 4). Nor is there any dispute that Ogden
initially accepted and considered the Union's demand to bargain as a
proper response to its notice of intended change, notwithstanding that
the Union's demand included, inter alia, a proposal that inspections be
conducted only for "reasonable cause", (Tr. 54); however, in a
conversation Mr. Shoell told Ms. Self that his proposal was ". . .
union initiated mid-term bargaining" (Tr. 54) and Ms. Self, having been
instructed by AFLC not to enter into Union initiated mid-term
negotiations until procedures, being negotiated at Command level, were
in place, returned the Union's proposals, ". . . until such time as
procedures are in place" (G.C. Exhs. 6 and 8).
By returning the Union's proposals without action and by refusing to
bargain until "procedures are in place", Ogden violated Sections 16(a)(
5) and (1) of the Statute for the reason that the Union's demand to
bargain was not a union initiated mid-term bargaining request. To the
contrary, Ogden gave notice that it was changing conditions of
employment by amending ALCR 123-4. The Union was entitled to respond to
the change of ALCR 123-4, Veterans Administration Medical and Regional
Office Center, Fargo, North Dakota, 24 FLRA 9, 11 (1986); Veterans
Administrtion, Washington, D.C. and Internal Revenue Service, 17 FLRA
731, 737 (1985); Social Security Administration, Mid-American Service
Center, Kansas City, Missouri, 9 FLRA 229, 223, 240-41 (1982);
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9,
10-11 (1981), and Ogden was obligated to bargain over the Union's
proposals despite the fact that the changes instituted by Ogden may not
have changed the condition of employment set forth in the proposal of
the Union with respect to conditioning inspections on "reasonable
cause", Social Security Administration (Baltimore, Maryland) and Office
of Hearings and Appeals, Region II (New York) and Office of Hearings and
Appeals (Syracuse and Buffalo, New York), 21 FLRA 546, 548-549, 568-569
(1986); Social Security Administration, Ofice of Hearings and Appeals,
Region II, New York, New York, 19 FLRA 328, 329, 344-345 (1985);
Veterans Administration, Washington, D.C. and Veterans Administration
Medical and Regional Office Center, Fargo, North Dakota and American
Federation of Government Employees, AFL-CIO, Case No. 7-CA-70479
(1988), ALJ Decision Reports No. 70 (March 22, 1988), /11/ inasmuch as:
(a) the Union's proposal on "reasonable cause" was negotiable, National
Treasury Employees Union, 24 FLRA 249, 252-254 (Proposal 2, which
provided, in part, ". . . management will not inspect these (lockers)
without good reason) (1986); (b) the Union's proposals, including its
"reasonable cause" proposal (others included: delay of implementation
of amendment for 180 days; briefing of employees; right to submit
additional proposals after briefing and receipt of employee input)
concerned conditions of employment, Social Security Administration,
Office of Hearings and Appeals, Region II, New York, New York, supra;
Social Security Administration (Baltimore, Maryland) and Office of
Hearings and Appeals, Region II (New York, New York) and Office of
Hearings and Appeals (Syracuse and Buffalo, New York), supra; and (c)
related to the change proposed by Ogden. Thus, Ogden gave notice of
intent to amend ALCR 123-4 to provide that ". . . no replacement or
claim is authorized when the employee refuses . . . to remove the lock
after being duly notified of the inspection." This introduced a new
concept to the provisions of the Regulation, namely that a lock would be
removed in the presence of the employee and/or that an employee might
refuse to remove the lock (subsection I of Paragraph 4, for example,
addressed only the absence of the employee, "If private locks are
removed in the absence of the employee . . . ."). The Union's proposal
about "reasonable cause", while it does, certainly, directly relate to
". . . subject to inspection for any reason . . ." of Paragraph 1, could
also directly relate to "refuses or otherwise fails to remove . . . .",
/12/ i.e., unless the employee for "reasonable cause" refuses, etc. In
any event, even if the Union's "reasonable cause" proposal were deemed
to relate solely to Paragraph 1 of ALCR 123-4, as part of the same Base
Regulation, the Union's proposal related to the change which Ogden
sought to make; both Ogden's proposed change of ALCR 123-4 and the
Union's proposal engendered thereby were negotiable; both concerned
conditions of employment; and Ogden was obligated to bargain on the
Union's proposal even if, ". . . the changes instituted by the
Respondent did not have any impact on the conditions of employment set
forth in the proposals made by the Union." Veterans Administration,
Washington, D.C. and Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota and American Federation of Government
Employees, AFL-CIO, supra.
Because Ogden's decision to change ALCR 123-4 was itself negotiable,
the question is whether the statutory obligation to negotiate concerning
the change was fulfilled, not the extent of impact, U.S. Army Reserve
Components Personnel and Administration Center, St. Louis, Missouri, 19
FLRA 290 (1985), i.e., that whether the impact of the change had more
than a de minimis impact on unit employees, Department of Health and
Human Services, Social Security Administration, 24 FLRA 403 (1986).
Moreover, as no party has raised the issue, it would be inappropriate to
consider the degree of impact. Department of Health and Human Services,
Social Security Administration, Region V, Chicago, Illinois, 19 FLRA
827, 830 (1985); Veterans Administration, Washington, D.C. and Veterans
Administration Medical and Regional Office Center, Fargo, North Dakota,
supra.
If it should be determined, contrary to my conclusions set forth
above, that the Union's proposal on "reasonable cause" was a union
initiated mid-term bargaining proposal, then for the reasons fully set
forth in my decision in Department of the Air Force, Ogden Air Logistics
Center, Hill Air Force Base, Utah and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio and American Federation of
Government Employees, Local 1592, Case No. 7-CA-70722 (OALJ-89-29),
dated January 11, 1989, I would find that Respondent did not violate
Section 16(a)(5) or (1) of the Statute and would have recommended
dismissal of the Complaint.
Finally, as to respective responsibility of Ogden and AFLC. The
record shows that AFLC instructed Ogden not to enter into Union
initiated mid-term negotiations until procedures were in place. On the
surface, this appears to have been an order by AFLC to Ogden not to
bargain on the Union's proposals and that Ogden's refusal to bargain was
a ministerial act required by direction of higher authority. On the
other hand, Ogden did not initially consider the Union's proposals
within the proscription, i.e., were accepted as a response to Ogden's
proposed change, but when the Union insisted that it was making a "Union
initiated mid-term bargaining demand", Ogden then acquiesced and
rejected the Union's proposals, in accordance with the instruction of
AFLC, as union initiated mid-term bargaining proposals. Accordingly,
with full recognition of the reluctance of the Authority to find a
violation when an activity acts ministerially and without discretion,
Veterans Administration, Washington, D.C. and Veterans Administration
Medical Center, Veterans Administration, New Orleans, Louisiana, 29 FLRA
55, 57 (1987), Ogden did not act without discretion and I conclude that
it, as well as AFLC, violated Section 16(a)(5) and (1). Thus, it was
Ogden who acquiesced with the Union's assertion that its proposals were
Union initiated mid-term bargaining proposals, although Ogden had
initially reached a contrary conclusion. Because Ogden appears to have
had some discretion, its decision to refuse to bargain was a violation
of Sections 16(a)(5) and (1) of the Statute. AFLC by instructing Ogden
not to ". . . enter into mid-term negotiations until those procedures
are in place, Union initiated mid-term negotiation" (Tr. 55), if it did
not instruct Ogden to refuse to negotiate, nevertheless interfered with
Ogden's bargaining obligation by issuing ambiguous instructions which,
as Construed by Ogden, encompassed as Union initiated mid-term
negotiations any union proposal which did not impact on the change
instituted by Ogden. Therefore, to emove any doubt and to avoid
possible re-interpretation of instructions given, a violation by AFLC
will also be found since the order of AFLC was contributing cause of the
refusal to bargain.
Having found that Ogden Air Logistics Center, Hill Air Force Base,
Utah and Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, violated Section 16(a)(5) and (1), it is recommended that the
Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations, 5 C.F.R.
Section 2423.29, and Section 18 of the Statute, 5 U.S.C. Section 7118,
the Authority hereby orders that the Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, and Ogden Air Logistics Center,
Hill Air Force Base, Utah, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1592
(hereinafter referred to as the "Union"), the agent of the
exclusive bargaining representative of their employees, concerning
the Union's response to Respondent Ogden Air Logistics Center's
(hereinafter referred to as "Hill AFB") proposed amendment of its
Regulation, ALCR 123-4, including the Union proposal on
"reasonable cause" for inspections.
(b) Air Force Logistics Command (hereinafter referred to as
"AFLC") instructing Hill AFB to fail or refuse to bargain with the
Union mid-term concerning responses to Hill AFB proposed amendment
of Base Regulations even if Union proposals in response to
proposed changes of Base Regulations do not impact on the changes
instituted by Hill AFB.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request bargain in good faith with the Union
concerning its proposals in response to Hill AFB's proposed
amendment of AFLC 123-4, including the Union's proposal on
"reasonable cause" for inspection.
(b) AFLC will inform Hill AFB and the Union, in writing, that
Hill AFB is free to negotiate with the Union concerning any Union
response to any mid-term Hill AFB proposal to amend Base
regulations, even if Union proposals do not impact on changes
instituted by Hill AFB.
(c) Post at their facilities at Ogden Air Logistics Center,
Hill Air Force Base, Utah, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shal be signed by the respective
Commanding Officers and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any
other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, 5 C.F.R. Section 2423.30, notify the Regional
Director, Region VII, Federal Labor Relations Authority, Suite
310, 535 - 16th Street, Denver, Colorado 80202, in writing, within
30 days from the date of this Order, as to what steps have been
taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 7, 1989
Washington, D.C.
FOOTNOTES
(1) Department of the Air Force, Ogden Air Logistics Center, Hill Air
Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 39 FLRA No. 122 (Wright-Patterson IV), issued this
date, involves the same parties as in the instant case and similar
issues.
(2) These ground rules proposals are set out in the Appendix to
Wright-Patterson I, 36 FLRA at 538-39.
(3) Mid-term proposals in Wright-Patterson IV were made on July 23,
1987, and Ogden refused to bargain on July 28, 1987, citing a contract
defense. As noted, in the instant case mid-term proposals were made on
January 4, 1988, and Respondent Ogden refused to bargain on January 13,
1988.
(4) In Wright-Patterson II, AFLC's answer to Council 214's request
read as follows:
Before we engage in union initiated mid-term bargaining,
procedures will have to be negotiated. As you know, the parties
are currently engaged in such negotiations. Your proposals are
therefore returned without action until such time as procedures
for union initiated mid-term bargaining are in place.
36 FLRA at 914.
(5) At the hearing in the instant case on September 14, 1988, the
Respondents' witness referred to ground rules proposals that it said
were then before the Federal Service Impasses Panel (the Panel). We
recognize that those proposals differ in some respects from the
proposals at issue in Wright-Patterson I and II. Nonetheless, we
conclude that Respondent Ogden was referring to the same ground rules
proposals on January 13, 1988, that Respondent AFLC had proposed on
November 6, 1987, (see Wright-Patterson I, 36 FLRA at 525), and relied
on for its refusal to bargain on December 24, 1987, (see
Wright-Patterson II, 36 FLRA at 914). We draw this conclusion based on
the close timing between the events in the three cases as well as the
following additional factors. The language in Ogden's January 13, 1988,
letter was strikingly similar to the letter delivered to Council 214 one
month earlier in Wright-Patterson II. Where the December letter had
referred to ground rules negotiations between "the parties," however,
the letter in this case referred to negotiations "at the command and
council level," a clear reference to the parties and the negotiations at
issue in the earlier cases. Finally, the record in Wright-Patterson II
indicated that at the time of the hearing in that case, in August 1988,
the ground rules dispute remained unresolved before the Panel. 36 FLRA
at 916. There is no indication that the ground rules proposals referred
to in this case were the subject of a separate filing before the Panel.
Thus, any differences between the proposals referred to in the hearing
in this case and the proposals at issue in the earlier cases must have
been the result of changes made while the dispute was pending at the
Panel.
(6) The parties in Wright-Patterson IV were the same as here. They
were subject to a master labor agreement (MLA), which appears to be the
same agreement in effect and applicable to the parties in the instant
case. A mid-term bargaining proposal was made by the Union on July 23,
1987, and Ogden refused to bargain on this proposal on July 28.
Thereafter, as established in Wright-Patterson I, on or about November
6, 1987, AFLC, at the national level, submitted proposals on
union-initiated mid-term bargaining. On November 13, Council 214
submitted couterproposals and later requested the assistance of the
Federal Mediation and Conciliation Service.
In Wright-Patterson IV, the Judge concluded that, by the terms of the
negotiated agreement, AFGE may have waived Local 1592's right to bargain
mid-term on any union-initiated proposal because (1) the master
agreement limited union--initiated mid-term bargaining to a single
supplemental agreement, and one such agreement already had been
negotiated; and (2) the master agreement permitted local negotiations
only by mutual agreement of the Council and AFLC, and there had been no
such agreement on delegation. Finally, the Judge found that the Council
could have, but had not, initiated mid-term bargaining on the proposals.
He recommended that the complaint be dismissed.
(7) Paragraph 1 of ALC Regulation 123-4 reads as follows:
1. GENERAL. All government property provided to civilian
employees, other civilians and military personnel for use in
carrying out their duties, such as lockers, desks, tool boxes, or
other such items, shall be subject to inspection for any reason
with the approval of the Commander, Directors and Chiefs of Staff
Offices . . . .
(8) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(5) will be referred to,
simply, as Section 16(a)(5)".
(9) General Counsel's Motion to Correct Transcript, to which there
was no opposition, is granted and the transcript is hereby corrected as
follows:
Page From To
Page 11, 1. 12 Claimant General Counsel
Page 12, 1 1 Counsel Council
Page 15, 1. 5 depositive dispositive
Page 18, 1. 19 ardinance ordinance
Page 37, 1. 3 for? ground for ground
Page 41, 1. 23 FCIP FSIP
Page 45, 1. 22 Jones Jarvinen
Page 51, 1. 9 Wade The Witness
Page 52, 1. 12 UOP ULP
(10) The first sentence reads as follows:
"e. If a private lock is damaged when removed in the absence
of the employee, it will be replaced with a comparable lock or the
owner advised he can present a claim for its value to Claims
Division (JAD)." (G.C. Exh. 4, Attachment).
(11) Although these cases involved bargaining pursuant to Section 6(
b)(2) and (3) of the Statute (Impact and Implementation), the duty to
bargain is, of course, no different when bargaining includes substance.
See, for example, Internal Revenue Service, supra at 737; Social
Security Administration, Mid-American Service Center, Kansas City,
Missouri, supra.
(12) In view of Mr. Shoell's self-serving insistence that the Union's
proposals were union initiated mid-term bargaining proposals, I give no
weight to his testimony that the Union's bargaining demand did not
relate to any changes which management made to the Hill Air Force Base
Regulation (Tr. 21).
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1592 (hereinafter
referred to as the "Union"), the agent of the exclusive bargaining
representative of our employees, concerning the Union's response to
Respondent Ogden Air Logistics Center's (hereinafter referred to as
"Hill AFB") proposed amendment of its Regulation, ALCR 123-4, including
the Union's proposal on "reasonable cause" for inspections.
WE, Air Force Logistics Command, will instruct Hill AFB, in writing,
with a copy to the Union, that it is free to negotiate with the Union
concerning any Union response to any mid-term Hill AFB proposal to amend
Base regulations, even if Union proposals do not impact on changes
instituted by Hill AFB.
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, bargain in good faith with the Union
concerning the Union's response to Hill AFB's proposed amendment of ALCR
123-4, including the Union's proposal on "reasonable cause" for
inspections.
(Agency)
Dated: . . . By: (Signature) (Title)
(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: Suite 310, 535 - 16th Street, Denver, Colorado 80202,
and whose telephone number is: (303) 837-5224.
39 FLRA 1376
39 FLRA NO. 120
International Brotherhood of Electrical Workers, Local 532 and Dept.
of Interior, Bureau of Reclamation, Billings, Montana, Case No.
0-NG-1853 (Decided March 22, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
PREVAILING RATE EMPLOYEES
BASE PAY
COMPANY SURVEYS
CSRA, SECTION 704
PREVAILING PAY PRACTICES
DIGEST NOTES
The Authority found nonnegotiable a proposal providing that in
determining wage rates for employees, a bonus paid by one of the four
companies surveyed to determine the prevailing rate be considered as
part of the base pay for that company. It was undisputed that unit
employees are covered by and enngaged in bargaining pursuant to section
704 of CSRA, and that the proposal relates to pay or a pay practice
within the meaning of 704(b). However, the practice proposed is not
prevailing within the segment of the industry which the parties have
agreed will be used to determine prevailing rates and practices.
Case No. 0-NG-1853
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 532
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION BILLINGS,
MONTANA
(Agency)
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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) involving one proposal.
The Agency filed a Statement of Position. The Union did not file a
Reply Brief.
For the following reasons, we conclude that the proposal, which
provides that, in determining the prevailing wage rate for employees, a
bonus paid by one of the four companies surveyed to determine the
prevailing rate be considered as part of the base pay for that company,
is nonnegotiable.
II. Background
The Agency's bargaining unit employees engage in collective
bargaining pursuant to section 704 of the Civil Service Reform Act of
1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.
S.C. Section 5343 (Amendments) (1988 ed.) and section 9(b) of the
Prevailing Rate Systems Act (PRSA or the Act), Pub. L. No. 92-392,
codified at 5 U.S.C. Section 5343 (Amendments note) (1988 ed.).
In February 1990, the parties agreed to survey four companies in
order to establish prevailing rates annd pay practices. One of the
companies surveyed, Montana Power, had negotiated a 3-year agreement
which provided that employees would receive a 3 percent cash signing
bonus in the first year of the agreement. The parties could not agree
on the effect of the bonus on their prevailing rate determinations.
III. The Proposal
The Union did not specifically set forth its proposal. Based on the
record, however, we construe the Union's proposal as requiring the bonus
paid to Montana Power employees to be included in the base rate for that
company when the parties calculate the prevailing rates to be applied to
the Agency's employees. We base our conclusion on the Union's assertion
that the Agency "has refused to recognize or include the 3 (percent)
cash signing bonus in wages(,)" and "will only acknowledge increases in
base pay." Union's Petition at 1. The Union's assertion is consistent
with the Agency's assertion that the Union "proposed that the cash
signing bonus be included in the calculations of base pay for all
classifications of employees." Statement of Position at 2.
IV. Positions of the Parties
A. The Agency
The Agency contends that the term "prevailing rates" refers "only to
the hourly rates of basic pay received by employees in the companies
surveyed . . . ." Id. at 3 (emphasis in original). The Agency concludes
that, as the bonus paid to Montana Power employees was not included in
their basic rate of pay, the bonus cannot be included in the prevailing
rates for the Agency's employees.
The Agency contends that, as the parties had not "specifically
negotiated on a cash signing bonus as a lump sum payment prior to August
19, 1972(,)" the pay practice included in the Union's proposal cannot
now be negotiated. Id. at 5. Moreover, the Agency contends that the
pay practice included in the proposal is not a "prevailing" practice
within the companies surveyed by the parties because the bonus paid by
Montana Power is not even "part of the basic hourly pay rates which
Montana Power pays its employees for work performed." Id. at 3.
Finally, the Agency contends that as the payment of a lump sum cash
signing bonus would "add an extra amount to the prevailing basic wage
rates" the proposal directly interferes with its right to determine its
budget under section 7106(a)(1) of the Statute. Id. at 8.
B. The Union
The Union did not file a reply brief. In its petition for review,
the Union notes that Montana Power settled a "3-year agreement with a
1st year payment of a cash signing bonus." Petition for Review at 1.
The Union asserts that the Agency "has refused to recognize or include
the . . . bonus in wages." Id. The Union states that it "would like .
. . the cash signing bonus to be recognized as a negotiability issue and
to be included on (sic) the base pay for all classifications." Id.
V. Analysis and Conclusions
It is undisputed that the Agency's bargaining unit employees are
covered by and engage in collective bargaining pursuant to section 704
of the CSRA. Section 704 provides, in relevant part:
(a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
employees . . . which were the subject of negotiation in
accordance with prevailing rates and practices prior to August 19,
1972, shall be negotiated on and after the date of the enactment
of this Act in accordance with the provisions of section 9(b) of
Public Law 92-392 without regard to any provision of chapter 71 of
title 5, United States Code . . . .
(b) The pay and pay practices relating to employees referred to
in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of --
(A) chapter 71 of title 5, United States Code . . . .
For the purposes of section 704(b), "the term 'pay' means the rate of
basic pay for a position held by an employee covered by the provisions
of section 704 of the CSRA." United States Information Agency, Voice of
America, 37 FLRA 849, 859 (1990) (VOA). The term "pay practices" means
"matters historically considered part of an employee's compensation
package, such as: (1) adjustments to an employee's basic rate of pay;
(2) matters concerning the payment of differentials, overtime, and
premiums; and (3) any other general compensation policies that entered
into and became a part of the employee's total compensation package."
Id. at 861. As relevant here, section 704(b) "precludes negotiations
over matters relating to pay and pay practices if those matters are not
among current industry practices." Department of the Interior, Bureau of
Reclamation, Washington, D.C. and Department of the Interior, Bureau of
Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 36
FLRA 1, 7 (1990). See also United States Information Agency v. Federal
Labor Relations Authority, 895 F.2d 1449, 1455 (D.C. Cir. 1990).
We conclude, in agreement with the Agency's undisputed assertion,
that the Union's proposal relates to pay or a pay practice under section
704(b). We note that in order to determine the basic wage rate for the
Agency's employees, the parties agreed to survey four companies within
their industry. Unit employees' wages are, in turn, based on the data
received from the survey. It is clear from the parties' positions that
inclusion of the bonus paid to Montana Power employees in the basic wage
rate for that company would affect both the data used to determine unit
employees' wages and, as a result of that effect, the wages themselves.
Moreover, the effect of the calculations of the wage data on employees'
pay is direct and immediate. In fact, it is undisputed in this regard
that the "added percentage proposed by the Union for the value of the
cash signing bonus translates into actual dollars when applied to the
wage rates" of unit employees. Statement of Position at 8. As such, we
conclude that the proposal to include the bonus in the basic wage rates
of Montana Power relates to pay or a pay practice, within the meaning of
section 704(b). Compare VOA, 37 FLRA at 861 (Authority stated that
proposals relating to the methods or mechanics of compensating
employees, such as time or method of paycheck delivery, did not relate
to pay or pay practices).
As noted previously, proposals relating to pay or pay practices are
not negotiable under section 704(b) unless the proposals are consistent
with current industry practice. The record in this case does not
demonstrate that the proposal is so consistent. We note first, in this
regard, that it is undisputed that "(f)our survey companies were agreed
upon (by the parties) in February 1990 to establish pay and pay
practices." Petition for Review at 1. It also is undisputed that the
disputed bonus paid by one of the companies "is not part of the basic
hourly pay rates" paid by that company. Statement of Position at 3.
Based on the foregoing, we conclude that the practice which the Union
proposes is not prevailing within the segment of the industry which the
parties have agreed will be used to determine prevailing rates and
practices. In fact, although one of the four surveyed companies paid a
signing bonus, that company did not include the bonus in its basic wage
rates. There is, therefore, no evidence that the practice of including
signing bonuses in basic wage rates exits at all within the industry
surveyed by the parties. Accordingly, we conclude that the proposal
does not involve a prevailing pay practice within the meaning of section
704(b) of the CSRA, and that, therefore, the proposal is nonnegotiable.
VI. Order
The petition for review is dismissed.
39 FLRA 1357
39 FLRA NO. 119
Dept. of the Air Force, Sacramento Air Logistics Center, McClellan
Air Force Base, California and AFGE, Local 1857, Case No. 89-CA-90477
(Decided March 22, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
UNILATERAL CHANGE IN WORKING CONDITIONS
MOBILITY PLAN
REMEDY
BARGAINING ORDER
STATUS QUO ANTE
DIGEST NOTES
The Authority adopted the Judge's finding that the Respondent
violated section 7116(a)(1) and (5) by unilaterally changing the working
conditions of certain unit employees. At issue was the implementation
of a new Mobility Plan without first notifying the Union and providing
it with an opportunity to bargain over the procedures to be used, and
appropriate arrangements for employees adversely affected.
The Authority modified the Judge's recommended remedy by ordering the
Respondent to bargain at the local level over the impact and
implementation of the unilaterally implemented plan. In this regard,
the Authority concluded that the current Command-level negotiations did
not provide an adequate remedy in the case and there was no assurance
that those negotiations would remedy the violation of the locally
implemented policy. "Inasmuch as the violation in this case involved a
locally implemented policy, the appropriate remedy for this violation
should include an order to bargain at the local level."
Case No. 89-CA-90477
DEPARTMENT OF THE AIR FORCE SACRAMENTO AIR LOGISTICS CENTER McCLELLAN
AIR FORCE BASE, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO
(Charging Party)
DECISION
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision finding
that the Respondent violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) by unilaterally
changing the working conditions of certain unit employees by
implementing a new Mobility Plan 28-4, MOP 31, without first notifying
the Charging Party (the Union) and providing it with an opportunity to
bargain over the procedures to be used in implementing the mobility plan
and appropriate arrangements for employees adversely affected by the new
mobility plan. The Judge found that the Respondent had violated the
Statute and, as a remedy, issued a cease and desist order and the
posting of an appropriate notice.
The General Counsel filed an exception only to the Judge's
recommended Order. The Respondent did not file an exception or an
opposition to the General Counsel's exception.
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, as modified below.
II. General Counsel's Exception
The General Counsel excepts to the Judge's conclusion that a cease
and desist order and the posting of an appropriate notice throughout the
bargaining unit would fully effectuate the purposes and objectives of
the Statute. General Counsel's Brief at 1. The General Counsel asserts
that the Judge erred by failing to provide for bargaining between the
Respondent and the Union at the local level. Accordingly, the General
Counsel seeks the issuance of an order directing bargaining at the local
level over the impact and implementation of the unilaterally issued
Mobility Plan 28-4, MOP 31, in order to fully effectuate the purposes
and objectives of the Statute.
III. Analysis and Conclusions
We agree with the General Counsel that issuance of an order requiring
bargaining at the local level over the impact and implementation of the
unilaterally implemented Mobility Plan, MOP 31, is necessary to remedy
the violation found by the Judge and will fully effectuate the purposes
and objectives of the Statute.
The Judge recommended a cease and desist order and the posting of an
appropriate notice throughout the bargaining unit "(b)ased particularly
on the fact that the AFGE and the Respondent have agreed to participate
in mid-term bargaining on MOP 31 at the Command level, and since a
status quo ante order would, given the existing budgetary constraints,
disrupt or impair the efficiency and effectiveness of the Respondent's
Mobility Augmentation Program(.)" Judge's Decision at 10 (footnotes
omitted). In so doing, the Judge found that the Respondent's subsequent
elevation of the matter for negotiations at the Command level was not a
defense to the Respondent's unilateral implementation of the MOP 31 at
McClellan AFB without giving the Union notice and an opportunity to
request impact and implementation bargaining at the local level. Id. at
10 n.1. The Judge also noted that the General Counsel had sought as a
remedy only a cease and desist order and a posting, not a status quo
ante remedy. Id. at 10 n.2.
We find, as an initial matter, that the Judge failed to note that the
General Counsel specifically requested a bargaining order in this case.
See General Counsel's Brief to the Judge at 10-11. Further, we agree
with the General Counsel that the current Command-level negotiations do
not provide an adequate remedy in this case. There is no assurance that
those negotiations would remedy the violation of the locally implemented
policy. Inasmuch as the violation in this case involved a locally
implemented policy, the appropriate remedy for this violation should
include an order to bargain at the local level. See Department of the
Air Force, Air Force Logistics Command, Sacramento Air Logistics Center,
McClellan Air Force Base, California, 35 FLRA 217 (1990). Accordingly,
we will order the Respondent to bargain at the local level, upon request
of the Union, regarding the impact and implementation of Mobility Plan
28-4, MOP 31.
IV. Order
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations, and section 7118 of the Statute, the
Department of the Air Force, Sacramento Air Force Logistics Center,
McClellan Air Force Base, California, shall:
1. Cease and desist from:
(a) Implementing Mobility Plan 28-4, MOP 31, or any other
mobility plan, without first notifying the American Federation of
Government Employees, Local 1857, AFL-CIO, an affiliate of the
employees' exclusive representative, and affording it the
opportunity to bargain concerning the procedures which management
will observe in effecting such change and appropriate arrangements
for employees affected by 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 Statute:
(a) Upon request, negotiate in good faith with the American
Federation of Government Employees, Local 1857, AFL-CIO, an
affiliate of the exclusive representative of its employees,
concerning the procedures to be observed in implementing the new
Mobility Plan 28-4, MOP 31, and concerning the appropriate
arrangements for employees adversely affected by such changes.
(b) Notify the American Federation of Government Employees,
Local 1857, AFL-CIO of any future mobility plan, and prior to
implementation, afford it an opportunity to bargain concerning the
procedures which management will observe in effecting such change
and appropriate arrangements for employees adversely affected by
such change.
(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 Commander of the Sacramento Air Logistics Center,
McClellan Air Force Base, California 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, San Francisco,
California 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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement Mobility Plan 28-4, MOP 31, or any other
mobility plan, without first notifying the American Federation of
Government Employees, Local 1857, AFL-CIO, an affiliate of the exclusive
representative of our employees, and affording it the opportunity to
bargain concerning the procedures which management will observe in
effecting such change and appropriate arrangements for employees
adversely affected by such change.
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, negotiate with the American Federation of
Government Employees, Local 1857, AFL-CIO, an affiliate of the exclusive
representative of our employees, concerning the procedures to be
observed in implementing new Mobility Plan 28-4, MOP 31, and concerning
the appropriate arrangements for employees adversely affected by such
changes.
WE WILL notify the American Federation of Government Employees, Local
1857, AFL-CIO of any future mobility plan, and prior to implementation,
afford it an opportunity to bargain concerning the procedures which
management will observe in effecting such change and appropriate
arrangements for employees adversely affected by 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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director, San Francisco, California 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-90477
DEPARTMENT OF THE AIR FORCE SACRAMENTO AIR LOGISTICS CENTER,
McCLELLAN AIR FORCE BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO
Charging Party
Stefanie Arthur, Esquire For the General Counsel
Mark F. Commerford, Esquire For the Respondent
Before: BURTON S. STERNBURG, Administrative Law Judge
DECISION
Statement of the Case
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 June 2, 1989 by the American Federation
of Government Employees, Local 1857, AFL-CIO, (hereinafter called the
Union), a Complaint and Notice of Hearing was issued on January 31,
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, Sacramento Air Logistics Center, McClellan
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 implementing a new mobility plan without first notifying
the Union and providing it with an opportunity to bargain over the
procedures to be used in implementing the mobility plan and appropriate
arrangements for employees adversely affected by the new mobility plan.
A hearing was held in the captioned matter on May 21, 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 Parties submitted
post-hearing briefs on June 21, 1990, 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.
Findings of Fact
At all times material herein, American Federation of Government
Employees, (hereinafter called AFGE) has been certified as the exclusive
representative of an appropriate nationwide consolidated unit of
employees of the Air Force Logistics Command (AFLC) including, inter
alia, non-professional employees at McClellan Air Force Base who are
paid from appropriated funds and who are serviced by the AFLC Civilian
Personnel Office. At all times material herein, the Union has been an
affiliate of AFGE and an agent of AFGE for purposes of representing the
unit employees at Respondent, the Air Logistics Center, McClellan AFB.
The Air Force Logistics Command and AFGE, through its National
Council of Air Force Logistics Command Locals, AFGE Council 214
(Council), are parties to a Master Labor Agreement covering employees in
the unit, including the employees at Respondent. Section 33.03 of the
Master Labor Agreement specifically provides for notice and bargaining
at the local level regarding changes implemented by the local activity.
McClellan Air Force Base has issued a Base Mobility Plan 28-4 which
contains policies and procedures for moving military personnel and their
equipment in times of national emergency. McClellan issued Base
Mobility Plan 28-4 pursuant to Air Force Regulation 28-4 which require
each base to have such mobility plans. The Base Mobility Plan includes
a Mobility Augmentation Program which provides for the utilization of
civilians in support of military mobilization operations. In 1985, this
Mobility Augmentation Program was identified as Mobility Operating
Procedure (MOP) 29. Subsequently, at a later date it was renumbered to
MOP 31. It is the issuance of MOP 31, without giving the Union
appropriate notice and the opportunity to request impact and
implementation (I&I) bargaining, which is the subject of the instant
complaint.
Civilians appointed to participate in the mobility program fall into
two categories: Tasked personnel, whose primary job assignment remains
the same during mobility, and augmentees, individuals appointed to
perform a mobility function complimentary to the mobility workcenter's
manpower requirement but whose mobility duties are different or outside
of their everyday occupational specialty. As evidenced by MOP 29 and
MOP 31 and undisputed by Respondent, bargaining unit employees occupy a
large number of the augmentee positions.
Mobility exercises are regularly conducted at McClellan AFB pursuant
to Mobility Plan 28-4. When the exercises are conducted bargaining unit
employees who have been designated as augmentees also participate. As a
general rule the mobility exercises last from 36-48 hours, although some
have lasted longer. The augmentee employees participating in the
exercises work different shifts and perform different work than usual
and may have different days off. In the past, employees involved in the
mobility exercises received overtime. The record indicates that the
payment of overtime is one of the reasons that a number of employees
have volunteered for the program. Although most directorates have
continued to pay overtime to the augmentees, during the two mobility
exercises held in 1990, two shops appear to have discontinued the
practice. The reasons for the alleged discontinuance do not appear in
the record and there is no showing that the change in the mobility
program which is the subject matter of this proceeding was the cause of
such discontinuance.
According to the uncontroverted testimony of Union vice president
Dora Solorio, when Mobility Plan 28-4, MOP 29 was issued in 1985, the
Union was given the opportunity to, and did, bargain concerning MOP 29,
which applies to civilian augmentees. On February 1, 1989, a new
Mobility Plan 28-4 was issued which contained a new and revised MOP
which was numbered MOP 31. Like its predecessor, MOP 29, MOP 31 also
governed civilian mobilization. However, unlike MOP 29, the Union,
which did not receive a copy of MOP 31 until February 7, 1989, was not
given any prior notice of MOP 31 nor the opportunity to bargain over the
impact and manner of implementation of MOP 31 prior to its issuance.
Upon learning of the new MOP 31, the Union requested a copy and
participated in a briefing on or about the latter part of March 1989.
On April 3, 1989, the Union wrote a letter to Mr. Baddley, Respondent's
Chief of Labor Relations and requested bargaining on the new mobility
plan. The Union's demand for bargaining cited Article 33, Section 33.03
of the Master Labor Agreement which provides for local level bargaining
when a change impacts only on one activity as opposed to the entire
command. The letter went on ask for a further briefing meeting since
the earlier meeting in March "left the Union unable to determine
bargaining impact."
Subsequently, on April 24, 1989, Mr. John Salas, who was the
president of the Local Union, wrote to Respondent's Labor Relations
Office and demanded to bargain not only about MOP 31 but other exercises
which have been conducted on the base. The letter submitted a number of
proposals concerning the method of selecting employees for the exercises
and, the length of the appointment, i.e. the Union wanted the
appointment to last only 18 months rather than the 36 months set forth
in MOP 31.
Subsequently, Respondent's Labor Relations' Office forwarded the
Union's April 24, 1989 letter to the Air Force Logistics Command for
resolution since the Union's demands appeared to have Command-wide
implications.
On May 1, 1989, Ms. Sheila Hostler, the Labor Relations Officer at
the Command level, wrote a letter to Mr. Paul Palacio, President of AFGE
Council 214, wherein she advised him that negotiations on the Union's
proposals would be handled at the Command level. A copy of this letter
was also sent to the president of the Union. On the next day, May 2,
1989, Respondent wrote a letter to the president of the Union which was
in reply to his April 24th proposals and requested time to determine the
appropriate offices of Respondent to be involved in any local
negotiations and counterproposed that the exercise procedures currently
in effect continue.
On May 9, 1989, the Union submitted a request to the Federal
Mediation and Conciliation Service concerning "Mid-term negotiations,
Mobility". However, according to Union vice-president Dora Solorio, the
matter was never pursued by the Union due to the fact that the matter
had been elevated to the Command level.
On May 13, 1989, Mr. Paul Palacio, President of Council 214, wrote a
letter to the Command wherein he requested a meeting to discuss the
matter. On May 30, 1989, McClellan AFB sent a letter to the Union
advising that Council 214 and the Command were about to negotiate the
Union's proposals and that McClellan AFB, "feeling caught in the middle"
would get back to the Union when and if the Command informed McClellan
AFB that the matters raised by the Union were appropriate for local
negotiations. On February 14, 1990, Mr. Palacio on behalf of Council
214 submitted a proposed Memorandum of Agreement which would be
Command-wide. The proposed Memorandum of Agreement contained the same
mobility proposals set forth as an attachment to the Union's April 24,
1989 letter. Inasmuch as the proposed Memorandum of Agreement had
Command-wide implications, the Command solicited reactions and
suggestions on the proposals from all its bases on February 23, 1990.
The record indicates that the main differences between MOP 29 and MOP
31 appears to be the length of the obligation, i.e. 18 months vis-a-vis
36 months, and the certain language appearing in the Letter Of
Appointment. In this latter connection the Letter of Appointment in MOP
29 provided as follows:
I acknowledge receipt and understanding of the above
responsibilities and commitment. I also understand that a copy of
this letter will be filed with my AF Form 971, Supervisor's Record
of Employee (Civilians Only). My duties and responsibilities as a
wartime, contingency or exercise participant will be included in
my performance appraisal as a critical element (civilians) or in
my overall efficiency rating, APR/OER (Military). My personnel
and/or training records will also reflect any training/experience
I receive in this capacity.
The Letter Of Appointment in MOP 31 provides as follows:
I acknowledge receipt and understanding of the above
responsibilities and commitment. I also understand that a copy of
this letter will be filed with my AF Form 971, Supervisor's Record
of Employee (Civilians Only). My pesonnel and/or training records
will also reflect any training/experience I receive in this
capacity. This civilian personnel record update will be
accomplished by my filling out an SF 172 to be verified by my
mobility workcenter supervisor.
The difference in the two letters appears to be that the responsibility
for filling out the requisite papers reflecting the MOP training is
shifted from the supervisor to the employee.
According to the uncontroverted testimony of Master Sergeant Charles
Baldwin, who has been the mobility superintendent since August 1986,
under the 1985 version of MOP 29 (Mobility Operating Procedure),
civilian employees were assigned to MOP 29 for a period of 18 months.
Both plans entertained requests for release prior to the expiration of
18 or 36 months as the case may be. However, admittedly, most if not
all of the early releases were predicted upon some sort of medical
condition. Unless there was a request for release the employees would
generally remain in the MOPs after the expiration of the minimum time,
i.e. 18 or 36 months, respectively. Moreover, following an employee's
release from a MOP after the expiration of the minimum period required,
the Respondent could, if a shortage of personnel occurred, immediately
include the employee in a MOP for another period of time. In
calculating the 36 month period under MOP 31 Respondent gave the
employee credit for the period of time that was spent under MOP 29.
Thus, the 36 month period was counted from the first day that the
employee began the original 18 month period under MOP 29.
With respect to the reasons for the change from 18 months to 36
months, Sgt. Baldwin explained that exercises under the prior version
were held eight or nine times a year. It took three or four exercises
to get employees trained. Once they were trained, they would have about
another year before completing their minimum appointment period.
However, due to budgetary restraints, the maximum number of exercises
was reduced to four per year. For fiscal year 1990 there will only be
three exercises. With the reduced frequency of exercises, it would
impair government efficiency and military readiness to release
appointees after eighteen months. With fewer exercises each year, it
takes longer to get personnel trained. The training period is further
lengthened because the exercises are used to train not only appointees
but also alternates. There are two appointees to cover twelve hour
shifts, thus providing twenty-hour hour coverage, with an alternate if
one of the appointees should be unavailable. In actual practice,
employees appointed as augmentees do not necessarily attend each
exercise, even when they are supposed to. They may have excuses,
reasons or alibis. If this happens frequently enough, their supervisor
would be contacted to encourage them to attend the exercises. It may
take five exercises before the two appointees and alternate are trained
for a position. Thus, in actual practice, under the 36 month
appointment, an appointee may only be completing his training period at
the end of the first eighteen months.
Discussion and Conclusions
The General Counsel takes the position that the Respondent violated
Sections 7116(a)(1) and (5) of the Statute by failing to give the Union
appropriate notice of the change from MOP 29 to MOP 31 and an
opportunity to bargain over the impact of the change from MOP 29 to MOP
31 prior to its implementation. Contrary to the contention of the
Respondent the General Counsel would find that doubling the period of
time that the employees would be subject to participation in mobility
exercises created more than a de minimis impact on the working
conditions of the unit employees. Similarly, General Counsel would also
find that changing the manner in which employees received credit for
participation in the mobility exercises had more that de minimis impact
on unit employees. Finally, the General Counsel, who only requests a
cease and desist order and not a return to the status quo, takes the
position that the fact that the AFGE and the Command are currently
conducting mid-term bargaining on mobility exercises at the higher level
does not constitute a defense to Respondent's action in failing to give
appropriate notice and the opportunity to bargain on the impact of the
change at the lower level.
Respondent, on the other hand, takes the position that it was under
no obligation to bargain either substances or impact with the Union. In
this latter connection Respondent takes the position that inasmuch as
there was no actual or foreseeable impact upon the working conditions of
the unit employees, it was under no obligation to give the Union prior
notice and the opportunity to bargain over the mobility exercise change
from 18 to 36 months. Additionally, if there was any obligation to
bargain, Respondent takes the position that it has complied with such
duty at the Command level.
It is well settled, and acknowledged by all parties, that an agency,
prior to instituting a change in a condition of employment, is under an
obligation to give the exclusive representative of its employees
appropriate notice of the impending change and an opportunity to request
bargaining over such change to the extent that the change has more than
a de minimis impact on the conditions of employment of the unit
employees. Department of Health and Human Services, Social Security
Administration, 24 FLRA 403. As noted by the General Counsel, in
determining whether a change in a condition of employment has more that
a de minimis impact on the unit employees, one must look not only to the
actual impact at the time the change was implemented but also to the
reasonably foreseeable effect of the change on the conditions of
employment of the unit employees. U.S. Customs Service (Washington, D.
C.) and the U.S. Customs Service Northeast Region, 29 FLRA 891.
Inasmuch as the parties agree that Respondent was not under any
obligation to bargain over the substance of its decision to substitute
MOP 31 for MOP 29, the only issue to be determined is whether
Respondent's action in making such substitution, which admittedly
occurred without giving the Union prior notice and the opportunity to
request bargaining, had more than a de minimis impact on the working
conditions of the unit employees. Of course, to the extent that the
change resulted in only a de minimis impact on the working conditions
then Respondent was under no obligation to give the Union prior notice
and an opportunity to request bargaining. Cf. U.S. Government Printing
Office, 13 FLRA 203, Footnote 4.
As noted above, the General Counsel takes the position that MOP 31
impacted upon the conditions of the unit employees in two ways, i.e.
doubled the time that an employee was obligated to participate in
mobility exercises and made the employee responsible for "filling out an
SF 172" in order to insure that his participation in the mobility
exercises was recorded in his civilian personnel record.
With respect to the doubling of the obligation for participation in
mobility exercises from 18 to 36 months it is Respondent's position that
such change had a de minimis impact on the working conditions of the
unit employees. In support of its position, Respondent points out that
while the employees obligation to participate in the exercises was
extended from 18 to 36 months, the actual number of exercises that an
employee was obligated to participate in during a given year was reduced
from seven or eight to three per year. Thus, over a thirty-six month
period the employee would participate in approximately the same number
of exercises that had been previously held during an eighteen month
period. Additionally, while MOP 31 provided for a thirty-six month
period of obligation, in practice the obligation period was less since
Respondent started counting the thirty-six months from the date the
employee began serving the eighteen month period called for under MOP
29. Finally, Respondent points out that employees under MOP 29 were not
automatically relieved of their mobility exercise obligation upon the
expiration of eighteen months, but rather had to file an appropriate
request. Absent a request, the employee remained in the program. To
the extent that an employee upon his own request was excused from the
mobility exercise obligation, Respondent retained the right under MOP 29
to immediately draft him into the program should there be a shortage of
personnel.
General Counsel on the other hand contends that the doubling of the
time that an employee is subject to mobility exercises clearly has more
than a de minimis impact on the employees working conditions. Since the
longer period of time an employee is subject to the mobility exercises
"the less certainty can be attached to its conditions. Additionally,
both benefits and burdens may change over a period of time affecting
volunteer and non-volunteer augmentees alike."
In agreement with the General Counsel I find that the doubling of the
period that employees would be subject to mobility exercises does have
more than a de minimis reasonably foreseeable impact on the employees
working conditions.
In the Authority's decision in U.S. Customs Service, supra, the
Authority made it clear that in order to determine whether a change in
conditions of employment requires bargaining, one must carefully examine
the facts and circumstances, placing principal emphasis on such general
areas of consideration as the nature and extent of the effect or
reasonably foreseeable effect of the change on conditions of employment
of bargaining unit employees. Respondent's position, set forth above,
is confined solely to the nature and extent of the current or immediate
effect of the change and ignores the reasonably foreseeable effect of
the change on the conditions of employment of unit employees.
Thus, I find that the reasonably foreseeable effect of Respondent's
action in doubling the time that an employee would be obligated to
participate in mobility exercises might well be an intrusion on an
employee's family, travel and/or educational plans, which were
predicated on periods when the employee was not scheduled to be a
participant in mobility exercises, to his detriment. Such reasonably
foreseeable effects are sufficient, in my opinion, to give rise to a
duty to bargain with the Union concerning the impact and implementation
of MOP 31. Similarly, I find that Respondent's action in assigning unit
employees the additional responsibility of insuring that their
participation in mobility exercises was properly recorded in their
respective personnel files constitutes a more than de minimis change in
the employees working conditions since failure to perform the additional
duty to the satisfaction of their respective supervisors might well
result in criticism and/or discipline which could reflect on the
employees' performance appraisals.
In view of the above, I further find that Respondent by failing to
give the Union appropriate notice and an opportunity to request
bargaining over the impact and manner of implementation of MOP 31 prior
to putting the plan into effect violated Sections 7116(a)(1) and (5) of
the Statute.
Based particularly on the fact that the AFGE and the Respondent have
agreed to participate in mid-term bargaining on MOP 31 at the Command
level, /1/ and since a status quo ante order would, given the existing
budgetary constraints, disrupt or impair the efficiency and
effectiveness of the Respondent's Mobility Augmentation Program, I find
that a cease and desist order and the posting of an appropriate notice
throughout the bargaining unit will fully effectuate the purposes and
objectives of the Statute. /2/ Accordingly, it is recommended that the
Authority adopt the following order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Department of the Air Force, Sacramento Air Force Logistics Center,
McClellan Air Force Base, California, shall:
1. Cease and desist from:
(a) Implementing Mobility Plan 28-4, MOP 31, or any other
mobility plan, without first notifying the American Federation of
Government Employees, Local 1857, AFL-CIO, the employees'
exclusive representative, and affording it the opportunity to
bargain concerning the procedures which management will observe in
effecting such change and appropriate arrangements for employees
adversely affected by 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 Statute:
(a) Notify the American Federation of Government Employees,
Local 1857, AFL-CIO of any future mobility plan, and prior to
implementation, afford it an opportunity to bargain concerning the
procedures which management will observe in effecting such change
and appropriate arrangements for employees adversely affected by
such change.
(b) 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 Commander of the Sacramento Air
Logistics Center, McClellan Air Force Base, California, 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, 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., December 14, 1990.
BURTON S. STERNBURG
Administrative Law Judge
FOOTNOTES
(1) The fact that the matter has since been elevated to the Command
level is not a defense to Respondent's action in instituting MOP 31 at
McClellan AFB, without giving the Union prior notice and an opportunity
to request impact and implementation bargaining at the Local Level
pursuant to Article 33, Section 33.03 of the Master Labor Agreement.
(2) In this connection, I note that the General Counsel seeks only a
cease and desist order and a posting, and not a status quo ante, as a
remedy.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement Mobility Plan 28-4, MOP 31, or any other
mobility plan, without first notifying the American Federation of
Government Employees, Local 1857, AFL-CIO, the exclusive representative
of our employees, and affording it the opportunity to bargain concerning
the procedures which management will observe in effecting such change
and appropriate arrangements for employees adversely affected by such
change.
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 notify the American Federation of Government Employees, Local
1857, AFL-CIO of any future mobility plan, and prior to implementation,
afford it an opportunity to bargain concerning the procedures which
management will observe in effecting such change and appropriate
arrangements for employees adversely affected by 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 IX,
whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103, and whose telephone number is: (415) 744-4000.
39 FLRA 1347
39 FLRA NO. 118
Dept. of Veterans Affairs Medical Center, Long Beach, California and
Robert L. Moore, Case No. 8-CA-00014 (Decided March 22, 1991)
STATUTE
7116(a)(1) and (2)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
DISCHARGE FOR SEEKING ASSISTANCE OF A LABOR ORGANIZATION
CREDIBILITY DETERMINATIONS
DIGEST NOTES
The Authority adopted the Judge's recommendation that the complaint
alleging that the Respondent discharged the Charging Party because he
sought assistance from a labor organization be dismissed. The Authority
declined to overrule the Judge's credibility determination, which was
that the credible evidence fails to establish any evidence of anti-union
animus on the part of the Respondent.
Case No. 8-CA-00014
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER LONG BEACH,
CALIFORNIA
(Respondent)
and
ROBERT L. MOORE
(Charging Party)
DECISION AND ORDER
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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, discharge the Charging Party because he sought assistance from
a labor organization. The Judge recommended that the complaint be
dismissed. The Charging Party filed exceptions to the Judge's decision.
The Respondent filed an opposition to the Charging Party's exceptions.
/*/
In effect, the Charging Party excepts to the credibility resolutions
of the Judge on which his findings of fact 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 determination regarding
credibility of witnesses unless a clear preponderance of all the
relevant evidence demonstrates that the determination was incorrect. We
have examined the record carefully and find no basis for reversing the
Judge's credibility findings. Antilles Consolidated School System, 39
FLRA 496 (1991).
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.
II. Order
The Complaint in this case is dismissed.
Case No. 8-CA-00014
VETERANS ADMINISTRATION MEDICAL CENTERS, LONG BEACH, CALIFORNIA
Respondent
and
ROBERT L. MOORE
Charging Party
Patricia J. Geffner, Esq. For the Respondent
Gerald M. Cole, Esq. For the General Counsel of the FLRA
Robert L. Moore Pro Se
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
DECISION
Statement of the Case
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.
Pursuant to a charge filed and amended by Robert L. Moore, an
individual, against Veterans Administration Medical Center, Long Beach,
California, hereinafter called VA Long Beach, the General Counsel of the
FLRA, by the Regional Director of Region VIII, issued a Complaint and
Notice of Hearing alleging that VA Long Beach violated section
7116(a)(1) and (2) of the Statute by discharging Moore, a probationary
employee, because he sought assistance from a union and by advising
Moore he was being removed because he sought union assistance. VA Long
Beach filed an answer denying it had violated the Statute.
A hearing in this matter was conducted before the undersigned in Los
Angeles, California. VA Long Beach, Moore and General Counsel of the
FLRA were represented and afforded a 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, my observation of the
witnesses and their demeanor, and my evaluation of the evidence, I make
the following:
Findings of Fact
In January 1989, Moore was hired under the Veterans Readjustment Act
by VA Long Beach as a housekeeping aid in the hospital facilities.
Because of previous service with the VA Moore was promoted to WG 1-3 in
February 1989 and to WG 2-2 in August 1989. Moore had to serve a one
year probationary period.
When first employed Moore worked weekends under the supervision of
Gladys Marshall, who stated in an interim performance rating for the
period ending March 31, 1989, that Moore was performing at a fully
successful level and that he had the potential of becoming an
outstanding employee.
In April 1989 Moore was transferred to the Monday through Friday
shift from 6 a.m. to 2:30 p.m. on Ward K-2, under the supervision of
Johnny Flowe. He was then switched to Ward L-2, a psychiatric ward.
Such a ward presents cleaning problems since psychiatric patients often
drop food and sometimes throw things.
Employees assigned to clean wards are given work schedules requiring
specific tasks be completed at specific times during the day.
Housekeeping aids are also required to complete assignments set forth in
weekly, monthly, and quarterly inspection sheets.
With respect to the following incidents and findings I credit Flowe's
version of what occurred, and not Moore's. Moore was an evasive and
unreliable witness who tried to provide information he felt would be
helpful to him and not to answer the questions asked. Further Moore
insisted other witnesses were not telling the truth with respect to
incidents whereas the other witnesses had no reason to lie. Thus, I
also credit the testimony of Leonard Odom and Edna Knight-Maiz. Odom
and Knight-Maiz were candid, forthcoming and had no reason to tell
untruths. Flowe also seemed candid and tried to recall the incidents,
even though this sometime lead to confusion. Further Flowe's version of
incidents, as well as the versions of Odom and Knight-Maiz, were more
consistent with the surrounding circumstances than was Moore's.
Further, Moore's demeanor was such as to make him not credible, whereas
the demeanor of Flowe and the other witnesses convinced me that they
were credible.
On June 28, 1989, Edna Knight-Maiz was acting charge nurse on Ward
M-2. On that day, at about 9:20 a.m., she observed Moore showing a
person around M-2. Knight-Maiz overheard Moore giving the other
individual information, including that the person could take a break on
the ward, pointing to a break room. This information was incorrect
because only the ward staff could use this break room. Moore also
indicated the person could use the microwave, which was also incorrect.
Knight-Maiz pointed out the break room and microwave were specifically
for M-2 staff. Moore became belligerent. Knight-Maize asked him to
leave the ward and tried to see Moore's name tag, which Moore covered
with his hand. Moore cursed at Knight-Maiz as he left the ward.
Knight-Maiz filled out a Report of Contact describing this incident and
concluding that Moore's cursing and behavior was inappropriate and
disrespectful.
In July 1989 Moore began having difficulty completing his
assignments. Flowe was requiring Moore to clean the day room twice a
day, the second time between 1:15 p.m. and 2:30 p.m., time he was
previously doing specific tasks assigned by his supervisor and tasks set
forth in the inspection sheets. Moore told Flowe that Moore could not
complete all these assigned tasks in the time allotted. Flowe told
Moore he was expected to complete these assignments. Moore said he
would try, but requested a meeting with Mary Durham, the second level
supervisor.
Moore, Flowe and Durham met in Durham's office and Moore set forth
his problems in completing his assignments in a timely fashion. Moore
was told to continue to clean the day room twice a day and to perform
the tasks set forth in the inspection sheets. Shortly after this
meeting Moore was given a new work schedule that set forth clearly that
he was to clean the day room twice a day.
A Report of Contact dated July 10, 1989, was submitted by a Viera A.
DeWald which stated that Moore was observed using the telephone at the
K-2 Nurses Station, and that when DeWald advised him not to use the
phone, "Moore responded in a highly inappropriate manner . . . 'this is
none of your business, you probably have no business being at the nurses
station, you have your own office.' At this point he walked away, still
talking in an hostile manner."
On or about July 16, 1989 Moore was observed by Leonard Odom at 12:
40 p.m. in the corridor of Building 122 talking to a young lady. On
this occasion Odom was a supervisor temporarily acting as Moore's
supervisor because Moore's regular supervisor was out. L-1, to which
Moore was assigned, is located in Building 128. Odom reminded Moore
that he was assigned to Building 128 and not to Building 122. Odom met
with Moore in Odom's office at about 2:25 p.m. and Odom filled out a
Report of Contact and a written counselling and gave a copy of each to
Moore, advising Moore that this counselling would help Moore realize the
importance of staying in his assigned areas. Moore became "boisterous"
and cursed in his reply to Odom. With respect to this incident there is
some uncertainty whether it occurred on July 16 or August 16.
In early August 1989 Moore talked with Sidney Keely, steward and
safety officer for American Federation of Government Employees, AFL-CIO,
Local 1061, hereinafter called AFGE Local 1061. AFGE Local 1061 is a
labor organization representing VA Long Beach's housekeeping employees.
Moore explained his problem completing his assigned tasks during the
afternoon.
On August 17, 1989 Moore received a written counselling because on
August 10, 1989, he was not able to provide to Flowe an inspection sheet
Flowe had given to Moore which contained items Moore was to complete.
Flowe gave Moore a written counselling.
At about 6:10 a.m. on August 18, 1989 Flowe saw Moore carrying a cup
of coffee. Flowe advised Moore that he was not permitted to carry
around a cup of coffee. Moore responded that he could do any "God dammn
thing" he wanted to and Flowe couldn't do anything about it. Later in
the day, on August 18, Flowe gave Moore a written counselling advising
Moore not to have food or drink in his housekeeping aid closet or on his
housekeeping aid cart. Before issuing this counselling Flowe had seen
coffee cups on Moore's housekeeping cart on a number of occasions and
had spoken to Moore about it on a number of occasions. That is why he
issued the counselling on this occasion.
On or about August 20, 1989, Keely went to see Richard Brisard, VA
Long Beach's Assistant Chief of Building Management, Moore's third level
supervisor. Keely mentioned the two counsellings that Moore had
received and the problem Moore had completing his work because he had to
do two tasks at the same time, cleaning the day room and the inspection
sheet duties. Brisard stated the bases for the counsellings were
groundless and would be resolved and that Moore couldn't do two things
at once. Keely advised Moore of this meeting.
Brisard recommended to Flowe that he not require Moore clean the day
room a second time. Flowe agreed.
After the Keely-Brisard meeting, Flowe informed Moore that he would
no longer have to clean the day room a second time in the afternoon. I
find that Flowe was not angry and did not "put his finger" in Moore's
face.
Sometime after the Keely-Brisard meeting Keely ran into Brisard again
and Brisard told Keely that Moore's supervisor had been spoken to and
had resolved the problems of the coffee and the check sheets.
On August 21, 1989, at about 9:40 a.m., Flowe instructed Moore to do
some sweeping which would take about ten minutes. Flowe told Moore to
complete the task by 11:00 a.m. Moore responded that he wasn't going to
sweep anything and that Flowe could do it himself. Moore became ill
that morning and received permission at about 10:00 a.m. to go to the
health office, checking in there at about 10:33 a.m. The doctor told
Moore he could go home and Moore left on sick leave at 11:00 a.m.
On September 20, 1989 Flow discovered that Moore had initialed off on
certain items on the weekly inspection sheet indicating the tasks had
been completed, when in fact they had not been completed. Flowe brought
this to Moore's attention, who started to make excuses and became very
angry. Flowe told Moore he was to correct the items before initialing
them.
Between August 21, and September 27, 1989 Flowe decided he wanted to
discharge Moore. Flowe prepared the paperwork and then consulted with
Brisard and Durham. Flowe based his decision that the appropriate level
of punishment was discharge primarily upon Moore's refusal to perform
the sweeping assignment on August 21 and his conduct on August 18
involving his carrying a coffee cup, as well as upon his general past
conduct of being non-cooperative. In reaching the decision to discharge
Moore, Flowe also considered the Reports of Contact filed by Odom,
Knight-Maiz and DeWald, and Moore generally being disobedient.
A letter to Moore was prepared for the signature of Dean R.
Stordahl, VA Long Beach Medical Center Director, which reflected Keely's
decision, as described above. The letter was dated September 27, 1989,
and advised Moore that he was being separated during his trial period
effective October 11, 1989. The letter stated Moore was being separated
"based on evidence of the following record". In the following
subparagraph lettered "a" the August 21 incident involving Moore's
refusal to perform the sweeping assignment was described. This
subparagraph then referred to VA Regulation 820(B) which stated that
improper behavior included ". . . Deliberate or willful resistance
toward or refusal to carry out the proper order of a superior."
Subparagraph lettered "b" described the incident involving Moore's being
instructed not to carry a coffee cup and Moore's response. This
subparagraph stated that this conduct could not be tolerated and was in
violation of VA Regulation 820(B).
Paragraph 2 of this letter stated that an employee during the trial
period is expected to demonstrate the qualities and skills that would
justify his retention. This paragraph went on to advise Moore, "During
your period of employment, you have been counseled about your attitude
toward your supervisor's instructions. Despite counselling, your
conduct has not improved sufficiently to warrant retention in the
Federal service."
This letter was signed for Stordahl and was given to Moore on
September 27.
On September 29, 1989, Moore went to Flowe to fill out an accident
form after Moore had seen a doctor. As discussed above, I indicated
that I credited Flowe's version of events and discredited Moore's and I
set forth the reasons for such conclusion. Accordingly, I discredit
Moore's contention that Flowe asked Moore why he was complaining and
when Moore responded, "So you're saying this because I complained . . .
you're lying on me because I complained to the Union," Flowe responded,
"Yes . . . I am going to show you whose complaints count and whose
don't." I credit Flowe's denial that Moore asked Flowe anything about
the discharge at this encounter. I credit Flowe's testimony that when
he decided to discharge Moore or during the encounter on September 29,
1989, he did not know that Moore had sought the assistance of a union in
approaching Brisard about Moore's problems.
Discussion and Conclusions of Law
General Counsel of the FLRA contends that VA Long Beach violated
section 7116(a)(1) and (2) of the Statute by discharging Moore. Section
7116(a)(2) provides that it is an unfair labor practice for an agency to
encourage or discourage membership in a union by discrimination in
connection with hiring, tenure, promotion or other conditions of
employment.
General Counsel of the FLRA contends VA Long Beach discharged Moore,
a probationary employee, because he sought aid from AFGE Local 1061 in
resolving a dispute with his supervisor. This discharge, it is
contended, constituted discrimination against Moore with respect to his
tenure of employment because he sought union assistance and thus
violated the Statute.
All parties agreed that discharge of a probationary employee because
of his union activity would violate section 7116(a)(2) of the Statute.
Cf. Oklahoma City Air Logistics Center, (AFLC), Tinker Air Force Base,
Oklahoma, 6 FLRA 159 (1981) and Marine Corps Logistics Base, Barstow,
California, 5 FLRA 725 (1981); see also Defense Logistics Agency,
Defense Contract Administration Services, Atlanta Region, Marietta,
Georgia, OALJ 89-121, adopted without precedential significance, October
27, 1989.
In Department of the Navy, Naval Weapons Station Concord, Concord,
California, 33 FLRA 770 (1988), hereinafter referred to as Naval Weapons
Station, the FLRA, relying on United States Department of Justice,
Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir.
1983), held, using very broad language, that a probationary employee can
be removed summarily, with no indication there is any limitation on the
reasons or motivation for such an agency's action. Naval Weapons
Station, supra, would seem to say that an agency can fire a probationary
employee because of his membership in or activities on behalf of a labor
organization without the agency violating the Statute. This, however,
was not the situation presented nor the activity engaged in by the
employee in Naval Weapons Station, supra.
I need not reach the question of whether Naval Weapons Station,
supra, would control the subject case because I conclude Moore was not
discharged because he sought the assistance of AFGE Local 1061. Rather
I conclude, based on the credited testimony, that Flowe decided to
separate Moore because Moore had engaged in misconduct, was
uncooperative and had a bad attitude.
In reaching the foregoing conclusion, I rely upon Moore's record of
misconduct and his poor attitude when his shortcomings were brought to
his attention. Moore had disputes with personnel outside his work area
and argued when talked to about the misconduct. Reports of Contact were
made of these encounters and when considered in conjunction with his
conduct at his work assignment, Flowe was persuaded to separate Moore.
The credible evidence herein fails to establish any evidence of
anti-union animus on the part of Va Long Beach officials. Additionally
when Flowe decided to separate Moore, Flowe was unaware Moore had sought
the assistance of a labor organization.
In light of all of the foregoing, I conclude Moore was not separated
because he sought assistance from a labor organization and therefore VA
Long Beach did not violate section 7116(a)(1) and (2) of the Statute.
Accordingly, I recommend that the Authority issue the following Order:
ORDER
The Complaint in Case No. 8-CA-00014 is hereby DISMISSED.
Issued, Washington, D.C., October 19, 1990.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
FOOTNOTES
(*) The Respondent asserts in its opposition that the Charging
Party's exceptions "fail to conform to the requirements of 5 CFR
2423.26" because of the "lack of specific references to the transcript
and other relevant citations." Opposition at 1. It appears that the
Respondent is arguing that the Charging Party's exceptions are
procedurally defective under section 2423.27 of our Rules and
Regulations. We conclude that the Charging Party's exceptions are
sufficiently clear so as to satisfy the requirements of section 2423.27.
39 FLRA 1325
39 FLRA NO. 117
Dept. of Justice, Immigration and Naturalization Service, U.S.
Border Patrol, El Paso, Texas and AFGE, National Border Patrol Council,
Case No. 6-CA-90534 (Decided March 22, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
UNILATERAL CHANGE IN PAST PRACTICE
COMMERCIAL CLEANING OF GOVERNMENT VEHICLES
DE MINIMIS
REASONABLY FORESEEABLE EFFECTS
REMEDY
BACK PAY
CAUSAL NEXUS
MAKE WHOLE
DIGEST NOTES
The Authority found that the Respondent had violated section 7116(
a)(1) unilaterally changing the past practice of allowing the Border
Patrol Agents located at the activity to have their assigned motor
vehicles commercially cleaned at Government expense and refusing to
negotiate with the Union over the impact and implementation of the
change. Applying its test used to identify changes in conditions of
employment which require bargaining, the Authority found that the
reasonably foreseeable effects of the change was more than de minimis.
Noted in this regard were that the unit employees are required to drive
their assigned vehicles on unpaved dirty roads, exposing themselves and
the vehicle to substantial amounts of dust and dirt. Moreover, agents
were responsible for the cleanliness of the vehicles.
As a remedy, the Authority required the Respondent to bargain over
the impact of the prohibition, the procedures to be observed in
implementing any like or similar change and appropriate arrangements for
employees adversely affected by the change. It rejected the request
that a named agent be made whole for the adverse impact of the
Respondent's act, or the direction of bargaining and payment of backpay
consistent with the outcome of that bargaining. In the Authority's
view, the Union had not established that the Respondent's unlawful
change resulted in the withdrawal or reduction in pay, allowances or
differentials of the agent. Although the Respondent reinstated the
established practice after 5 months, the Union had no opportunity to
bargain over the impact and implementation of the prohibition.
Case No. 6-CA-90534
DEPARTMENT OF JUSTICE U.S. IMMIGRATION AND NATURALIZATION SERVICE U.
S. BORDER PATROL, EL PASO, TEXAS
(Respondent/Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
(Charging Party/Union)
DECISION AND ORDER
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair Labor practice case is before the Authority on exceptions
filed by the Union to the attached decision of the Administrative Law
Judge. The Respondent did not file an opposition to the Union's
exceptions.
The complaint alleges that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by unilaterally changing the past practice of allowing the
Border Patrol Agents located at the Fabens Border Patrol Station to have
their assigned motor vehicles commercially cleaned at Government expense
and refusing to negotiate with the Union over the impact and
implementation of the change. The Judge found that the Respondent did
not violate the Statute because the effects of the change on unit
employees' conditions of employment were de minimis.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the procedural rulings
of the Judge made at the hearing and find that no prejudicial error was
committed. We affirm the rulings.
We find, however, contrary to the Judge, that the Respondent violated
the Statute, as alleged in the complaint.
II. Background
The Union is the exclusive representative of a nationwide unit of
nonprofessional employees including the Border Patrol Agents assigned to
the Respondent's Fabens, Texas Border Patrol Station. The Union has
delegated the authority to negotiate changes in conditions of employment
to the local level when the changes have an impact at only one
installation.
The Border Patrol Agents at the Fabens Border Patrol Station are
responsible for apprehending illegal aliens. Their duties include
apprehending and transporting aliens, patrolling, sign cutting or
tracking, farm and ranch check and line watch. Each agent at the Fabens
station is assigned a Government vehicle, "a stripped down Ford Bronco."
Judge's Decision at 3. The vehicles have rubber mats instead of
carpeting and a cargo area, in place of rear seats, which is used to
transport illegal aliens. The cargo area is separated from the cab of
the vehicle by a wire mesh screen, which "does not stop dust and dirt
from entering the driver's compartment." Id. Agents use assigned
vehicles on a continuing basis, except when a vehicle is in the shop for
maintenance. Agents spend about 90 percent of their on-duty time in
their vehicles. Most of the time, agents operate their vehicles over
unpaved dirt and "caliche" roads, which are bumpy and filled with ruts.
Id. Because a vehicle is constantly driven over dirt roads, excess dust
and dirt accumulates in the cab area of the vehicle.
Prior to May 22, 1989, the Border Patrol Agents at the Fabens station
were authorized to take their assigned vehicles to a local service
station for a cleaning approximately twice a month. The station
thoroughly cleaned and washed the interior and exterior of the vehicle,
including the cargo areas, under the seats, the floor board, the dash
board, sun visors, and seat belts. The cost of the cleaning, $9.00, was
billed to the Government "through the medium of government credit cards
assigned to each vehicle." Id. In addition to the bi-weekly washing,
vehicles were washed in conjunction with scheduled maintenance performed
on the vehicles at 3000 mile intervals. Id. at 4. The Fabens station
had water hoses and air compressors which agents were allowed to use to
clean vehicles during working hours.
On May 22, 1989, the Respondent notified the employees assigned to
the Fabens station that due to the budget cuts, credit card purchases
would be limited effective that date. The restrictions imposed by the
Respondent on credit card purchases eliminated, among other things, "the
periodic washing and/or cleaning of the vehicles" and the scheduled
maintenance on the vehicles. Id. By letter dated June 9, 1989, the
Union requested that the Respondent bargain over the impact and
implementation of the decision to discontinue the established practice
of allowing employees to have their Government vehicles cleaned at
Government expense.
By letter dated June 9, 1989, the Respondent's Chief Patrol Agent
acknowledged that "three accept(able) practices for cleaning government
vehicles" existed at Fabens station: (1) first level vehicle
maintenance care by the vehicle operator; (2) submission and approval
of an agent's request to have his vehicle washed at the designated
service station; and (3) a vehicle wash included as a part of "a
cyclical preventive maintenance schedule service(.)" General Counsel's
Exh. 4. However, the Respondent's Chief Patrol Agent denied the Union's
bargaining request, stating that he had determined that the Union's
"allegations (were) not substantiated, therefore, any need for
initiating the bargaining process (was) not necessary." Id.
The Respondent's prohibition against Border Patrol Agents having
their vehicles commercially cleaned at Government expense was in effect
until October 1, 1989.
III. Administrative Law Judge's Decision
The Judge noted that it was undisputed that the commercial cleaning
and/or washing of the vehicles assigned to Border Patrol Agents was a
"recognized condition of employment(.)" Judge's Decision at 8. The
Judge noted also that the General Counsel did not "contend that
Respondent was obligated to engage in bargaining over the substance of
the change." Id. The Judge stated that the sole issue to be resolved
was "whether the prohibition on commercially cleaning the utility
vehicles at government expense had a more than de minimis impact on the
unit employees." Id. The Judge noted the Respondent's contention that
the impact of the change was de minimis and the General Counsel's
contention that the adverse impact "consisted of dirtier uniforms,
aggravated allergy conditions and morale." Id.
The Judge concluded, based on "particularly the mutually
corroborative testimony" of three Border Patrol Agents, that the
Respondent's prohibition on having vehicles commercially cleaned at
Government expense had a de minimis impact on the conditions of
employment of unit employees. Id. In the Judge's view:
their testimony (made) it clear that the prohibition had litle or
no significant impact upon them since dust and dirt was always a
problem and the vehicles would become dusty shortly after the
commerical cleaning, which according to them occurred only once or
twice a month prior to May 22, 1989.
Id. The Judge also stated that according to the agents' testimony, 'the
cleaning . . . took only fifteen minutes of their working time and did
not result in their uniforms getting any dirtier than usual." Id.
The Judge rejected Border Patrol Agent Marren's contention that "his
. . . allergy problem was . . . aggravated by excessive dust in his
utility vehicle(.)" Id. at 9. The Judge found that "commercial cleaning
of his vehicle might have given him some relief for several hours, not
days, of any month." Id. Moreover, according to the Judge:
there (was) no showing in the record that there was any required
amount of times that an Agent was to clean his vehicle between the
scheduled 3000-mile "A" maintenance. Nor was there any showing
that any Agent had ever been disciplined for failure to clean his
vehicle.
Id. (footnote omitted) /*/ Accordingly, the Judge recommended that the
complaint be dismissed.
IV. Union's Exceptions
First, the Union excepts to a finding of fact made by the Judge. The
Union asserts that the record shows that Agent Marren's medical problems
with allergies and asthma did not appear "until after he was employed by
the Respondent, not prior to his employment as indicated by the ALJ."
Union's Exceptions at 3 (emphasis in original).
Second, the Union excepts to the Judge's refusal to allow Agent
Marren to testify concerning the impact of the change on unit employees.
According to the Union:
When Counsel for the General Counsel attempted to elicit testimony
from Mr. Marren concerning how the dust impacted on him, the ALJ
cut him off by stating "I'm going to take administrative notice
that anybody that has allergies and dust is blowing in their face
is going to have a problem."
Id.
The Union argues that the record supports the conclusion that the
impact of the Respondent's prohibition on commercial cleaning of
Government vehicles was more than de minimis. According to the Union,
two agents testified that it took about 1 hour to 1 1/2 hours to
thoroughly clean a vehicle. The Union further asserts that the Judge
failed to address "the impact of the dusty and dirty vehicles on Mr.
Marren's medical condition and the other adverse health effects
experienced by the other employees(.)" Id. at 5. The Union also
asserts, in this regard, that the Judge failed to consider the "impact
of the discipline imposed upon Mr. Marren as a result of his having
washed his vehicle with the water hose." Id. at 6.
To remedy the violation, the Union requests that the Authority order
"a make whole remedy for those employees who can delineate a compensable
adverse impact which was suffered as a result of the Respondent's
illegal actions." Id. at 8. According to the Union, the "Respondent's
action of unilaterally halting the past practice" adversely affected
unit employees in the following manner:
There (were) the extra cleaning costs incurred by the employees,
who's (sic) uniforms were soiled because of increased dirt and
dust in the vehicles, or which were soiled when they cleaned the
vehicles themselves. There was the lost time and reduced
productivity because the Agents were cleaning their vehicle,
rather than patrolling. There were the physical aggravations of
dust in the eyes, food and even breathing problems. There was
damaged equipment, and consequent disciplinary action, which
resulted from an employee having to do something which he was
unprepared to do and had never before been required to do.
Id. at 7-8.
The Union requests that the Authority order thet Agent Marren be made
whole for the adverse impact he suffered as a result of the Respondent's
unlawful actions. The Union asserts that "(i)t was only because the
Respondent changed the past practice of allowing . . . employees . . .
to have their government vehicles commercially cleaned, that (Agent
Marren) used the water hose, . . . unfortunately damaging the vehicle's
electronic equipment." Id. at 9 (emphasis in original). The Union
argues that "'(b)ut for' the change in the past practice, Mr. Marren
would have never used the water hose to clean the vehicle, since he
always had his vehicle commercially cleaned." Id. In the alternative,
the Union requests that the Authority "issue an order directing
bargaining and the payment of back pay consistent with the outcome of
that bargaining." Id. at 10.
V. Analysis and Conclusions
We find, contrary to the Judge, that the reasonably foreseeable
effects of the Respondent's prohibition on the commercial cleaning of
Government vehicles on the conditions of employment of unit employees
were more than de minimis.
In Department of Health and Human Services, Social Security
Administration, 24 FLRA 403 (1986) (SSA), the Authority reassessed and
modified the de minimis standard previously used to identify changes in
conditions of employment which require bargaining. The Authority stated
that in order to determine whether a change in conditions of employment
requires bargaining, it would carefully examine the pertinent facts and
circumstances presented in each case. The Authority further stated that
in examining the record, principal emphasis would be placed on such
general areas of consideration as the nature and extent of the effect or
reasonably foreseeable effect of the change on the conditions of
employment. The Authority also stated that equitable considerations
would be taken into account in balancing the various interests involved,
that the number of affected employees and the parties' bargaining
history would be given limited application; and that the size of the
bargaining unit would no longer be a consideration.
Applying the SSA standard here, we find that the nature and extent
and the reasonably foreseeable effects of the Respondent's prohibition
on the commercial cleaning of vehicles on bargaining unit employees were
more than de minimis. In reaching this conclusion, we note first that
it is undisputed that the Respondent's practice was to allow agents
assigned to the Fabens Border Patrol Station to have their vehicles
commercially cleaned at Government expense, and that unit employees had
their vehicles thoroughly washed and cleaned at the designated station
every 2 weeks at Government expense. It also is undisputed that the
Respondent unilaterally discontinued the practice for 5 months, without
providing the Union with notice of its decision and without bargaining
over the impact and implementation of the change.
The record before us reveals that during the 5-month period, agents
cleaned their own vehicles more frequently. Transcript at 68-70, 78-80.
The record reveals also that it took agents from 15 to 20 minutes to
surface clean vehicles and from 1 to 1 1/2 hours to perform the thorough
cleaning which previously had been done at Government expense. Id. at
71, 81. The record further establishes that at least one agent
complained to the Respondent that his allergy problems were aggravated
by the excessive dust in his vehicle. Id. at 39-40.
Based on the foregoing, we conclude that the nature and the extent of
the effects and reasonably foreseeable effects of the Respondent's
prohibition on the commercial cleaning of vehicles at Government expense
on bargaining unit employees' conditions of employment were more than de
minimis. We note, in this regard, that unit employees are required to
drive their assigned vehicles over unpaved dirt roads, exposing
themselves and the vehicle to substantial amounts of dust and dirt.
Moreover, in its reply to the Union's request to bargain, the Respondent
rejected the Union's assertion that agents were required, as a result of
the change, to wash their vehicles. In so doing, the Respondent
asserted that agents "have always been required to demonstrate proper
care and use of government equipment." Judge's Decision at 6.
Accordingly, although the record does not establish that "there was any
required amount of times that an Agent was to clean his vehicle," it is
not disputed that agents were responsible for the cleanliness of their
vehicles. Id. at 9. In fact, the Respondent maintained water hoses and
air compressors on its premises for these purposes.
At the time of the change, therefore, it was reasonably foreseeable
that the effects of the change could be more than de minimis. Moreover,
we reject the Judge's conclusion that the effects of the change were de
minimis because the vehicles become dirty soon after they are cleaned.
That conclusion is based on the Judge's view of the effectiveness of the
established practice, not the effects of the change in that practice.
Many established practices may be of only marginal benefit to employees.
The obligation to bargain, however, depends on the effects or
reasonably foreseeable effects of the change in the practice, not the
efficacy of the practice itself.
In this case, the Respondent took measures to help alleviate the
accumulation of excessive dirt and dust in the employees' work
environment. One of the measures was the Respondent's practice of
allowing unit employees to have their vehicles thoroughly cleaned,
bi-weekly, at Government expense. We conclude that discontinuing that
practice, however effective, in circumstances where unit employees
constantly were exposed to such dirt and dust, had reasonably
foreseeable effects on bargaining unit employees' conditions of
employment that were more than de minimis.
As the effects of the Respondent's prohibition on the commercial
cleaning of vehicles were more than de minimis, the Respondent was
required to provide the Union with notice of, and an opportunity to
bargain over, the impact and implementation of the change. There is no
dispute that the Respondent failed to provide the Union with advance
notice of, and refused to bargain with the Union, when requested, over
the impact and implementation of the change. Accordingly, the
Respondent violated section 7116(a)(1) and (5) of the Statute.
VI. Remedy
We find that an order requiring the Respondent to bargain over the
impact of the May 22, 1989, prohibition on the commercial cleaning of
Government vehicles, the procedures to be observed in implementing any
like or similar change in the future, and appropriate arrangements for
employees adversely affected by the change is the appropriate remedy
based on the record established in this case. In so finding, we reject
the Union's requests that: (1) Agent Marren be made whole for the
adverse impact he suffered as a result of the Respondent unlawful act,
or (2) the Authority issue an order directing bargaining and the payment
of backpay consistent with the outcome of that bargaining.
A backpay award under the Back Pay Act requires determinations that:
(1) an employee was affected by an unjustified or unwarranted personnel
action, (2) the action resulted in a withdrawal or reduction in the pay,
allowances, or differentials of the employee, and (3) the withdrawal or
reduction would not have occurred but for the unjustified action. In
refusal-to-bargain cases, the causal nexus required by the Back Pay Act
is established when the Authority finds that an agency's action that
gave rise to the violation resulted in a withdrawal or reduction in the
pay, allowances or differentials of employees. The Authority will order
a backpay remedy where it is clear that the violation resulted in a loss
of some pay, allowances or differentials. Where it is clear that the
violation resulted in such a loss but the identity of the affected
employees can not be ascertained in compliance proceedings, the
Authority will, consistent with Federal Aviation Administration,
Washington, D.C., 27 FLRA 230, 234 (1987), allow the parties to
"establish the causal nexus required by the Back Pay Act by determining
through negotiations the extent of the make-whole relief." U.S.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and U.S. Department of Health and Human Services,
Social Security Administration, Hartford District Office, Hartford,
Connecticut, 37 FLRA 278, 292 (1990). Where the effect on employees is
speculative, however, the Authority will deny make-whole relief. Id.
The Union contends that Agent Marren was disciplined and suffered a
loss of wages as a result of the change. The only evidence in the
record supporting this contention is Agent Marren's testimony that when
he cleaned his vehicle with the water hose, "(i)t damaged the
electronics equipment" and "(he) got 33 days off." Transcript at 41.
There is, in this regard, no evidence, written or testimonial, that
Agenct Marren was suspended, or received any other disciplinary action,
based on his apparent attempt to clean his vehicle. In the absence of
any evidence concerning Marren's "33 days off(,)" we conclude that the
Union has not established that the Respondent's unlawful change resulted
in a withdrawal or reduction in pay, allowances or differentials of
Agent Marren. Similarly, there is no evidence that any other unit
employee suffered a withdrawal or reduction in pay or allowances or
differentials as a result of the Respondent's unlawful action.
Accordingly, we find that a backpay remedy is not warranted in this
case.
Although the Respondent reinstated the established practice after 5
months, the Union had no opportunity to bargain over the impact and
implementation of the Respondent's prohibition on the commercial
cleaning of vehicles. Therefore, we will require the Respondent to
bargain with the Union, upon request, over the impact of the prohibition
on the commercial cleaning of Government vehicles and the impact and
implementation of any future similar change. See, for example, U.S.
Department of Justice, Immigration and Naturalization Service, U.S.
Border Patrol, San Diego Sector, San Diego, California, 35 FLRA 1039
(1990).
VII. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of Justice, U.S. Immigration and
Naturalization Service, U.S. Border Patrol, El Paso, Texas shall:
1. Cease and desist from:
(a) Unilaterally changing working conditions by discontinuing
the practice of allowing Border Patrol Agents assigned to the
Fabens Border Patrol Station to have their assigned vehicles
commercially cleaned at Government expense, without first
notifying the National Border Patrol Council, American Federation
of Government Employees, AFL-CIO, the exclusive representative of
certain of its employees, and affording it the opportunity to
bargain over the impact and implementation of the 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) Upon request, bargain with the National Border Patrol
Council, American Federation of Government Employees, AFL-CIO over
the impact of the May 22, 1989, prohibition on the commercial
cleaning of assigned vehicles and over the impact and
implementation of any future similar change in the established
practice of allowing the Border Patrol Agents assigned to the
Fabens Patrol Station to have their assigned vehicles commercially
cleaned at Government expense.
(b) 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 Chief Patrol Agent, El Paso Sector,
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.
(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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change working conditions by discontinuing
the practice of allowing Border Patrol Agents assigned to the Fabens
Border Patrol Station to have their assigned vehicles commercially
cleaned at Government expense, without first notifying the National
Border Patrol Council, American Federation of Government Employees,
AFL-CIO, the exclusive representative of certain of our employees, and
affording it the opportunity to bargain over the impact and
implementation of the change.
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, bargain with the National Border Patrol
Council, American Federation of Government Employees, AFL-CIO, over the
impact of the May 22, 1989 prohibition on the commercial cleaning of
assigned vehicles and over the impact and implementation of any future
similar change in the established practice of allowing the Border Patrol
Agents assigned to the Fabens Patrol Station to have their assigned
vehicles commercially cleaned at Government expense.
(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, Dallas Regional Office, Federal Labor Relations Authority,
whose address is: 525 Griffin Street, Suite 926, LB 107 Dallas, TX
75202 and whose telephone number is: (214) 767-4996.
Case No. 6-CA-90534
DEPARTMENT OF JUSTICE UNITED STATES IMMIGRATION AND NATURALIZATION
SERVICE, UNITED STATES BORDER PATROL EL PASO, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER
PATROL COUNCIL
Charging Party
Joseph T. Merli, Esquire For the General Counsel
Robert S. Hough, Esquire For the Respondent
Robert J. Marren For the Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
DECISION
Statement of the Case
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 June 20, 1989, by the American
Federation of Government Employees, AFL-CIO, National Border Patrol
Council, (hereinafter called the Charging Party or Union), a Complaint
and Notice of Hearing was issued on December 20, 1989, by the Regional
Director for Region VI, Federal Labor Relations Authority, Dallas,
Texas. The Complaint alleges that the Department of Justice, United
States Immigration and Naturalization Service, United States Border
Patrol, El Paso, Texas, (hereinafter called Respondent), violated
Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by changing a past
practice of allowing the Border Patrol Agents located in Fabens, Texas
to have their assigned motor vehicles commercially cleaned and
thereafter refusing to bargain with the Union over the procedures to be
observed in implementing the change and appropriate arrangements for
employees adversely affected by the change.
A hearing was held in the captioned matter on April 18, 1990, in El
Paso, Texas. 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, the General
Counsel and the Charging Party submitted post-hearing briefs on June 11,
June 13, and June 14, 1990, respectively which have been duly
considered. /1/
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.
Findings of Fact
The Union is the exclusive bargaining representative for a nationwide
unit of nonprofessional employees, which includes, among others, the
approximately twelve Border Patrol Agents assigned to Respondent's
Border Patrol Station located in Fabens, Texas. While the Union is
authorized to negotiate changes in conditions of employment at both the
national and local levels, when a change impacts only at one
installation the appropriate Local representing the unit employees at
the installation is authorized to receive the appropriate notice of any
change and be given the opportunity to negotiate the impact of the
change on the unit employees, represented by the Local.
The Border Patrol Agents at the Fabens, Texas Border Patrol Station
perform a myriad of duties in connection with their major
responsibility, i.e. apprehending illegal aliens. These duties include
patrolling the border, sign cutting or tracking, farm and ranch checks
and line watch. In performance of these duties each agent is assigned a
government owned vehicle, namely a stripped down Ford Bronco. The same
assigned vehicle is used by the respective agents on a continuing basis,
except when the vehicle is in the shop for maintenance.
The stripped down vehicles have rubber mats instead of carpeting and
a cargo area in place of the rear seats which is used to transport
illegal aliens. The cargo area is separated from the cab of the vehicle
by a wire mesh screen which insures the safety of the driver from attack
by the illegal alien but does not stop dust and dirt from entering the
driver's compartment.
According to Border Patrol Agent Robert Marren, who holds the
position of Field Services Coordinator with the Union, the Agents
operate their vehicles a good deal of the time over unpaved dirt and
"caliche" roads which are for the most part bumpy and filled with ruts.
Due to the way the vehicles are constructed, when you drive them over
the above described roads, a vacuum at the rear of the vehicle brings in
dust which covers the cab area. Thus, Mr. Marren, whose testimony in
this respect is uncontested, stated as follows:
It (the dust) gets in the head band between the cab and the
fiberglass roof, the seat belt retractors, under the dashboard,
all over everything. Any place that dust could get, dust gets in
these vehicles.
Similar testimony concerning the excessive dust and dirt build up in
the vehicles was elicited from Border Patrol Agents William Cleary, III,
Robert Ordonez and Reginald Buck.
Prior to May 22, 1989, when the events underlying the instant
complaint occurred, the Border Patrol Agents would take their assigned
vehicles to a local auto service station called Garay's Texaco for a
thorough cleaning approximately twice a month. The cost of the
cleaning, which included a thorough washing of the vehicles' interior
and exterior was $9.00, which was billed to the Government through the
medium of government credit cards assigned to each vehicle. In addition
to the above washings, the vehicles would be washed in conjunction with
the scheduled "A" maintenance performed on the vehicles at 3000 mile
intervals.
According to the mutual corroborative testimony of Border Patrol
Agents Marren, Cleary and Ordonez, the practice of having the vehicles
cleaned, when deemed necessary, and charged to a government credit card
had been in existence for at least four and one half years. Chief
Patrol Agent Michael Williams, in a letter to the Union dated June 27,
1989, quoted in pertinent part, infra, also acknowledged the existence
of the practice of having the vehicles washed periodically by Garay's
Texaco at Government expense.
On May 22, 1989, Patrol Agent In Charge of the Fabens Station,
Charles Roberson, in a memorandum to all Patrol Agents, notified the
employees that due to "the dramatic budget cut," effective May 22, 1989,
a number of procedures were to be implemented in order to conserve
funds. Among the listed procedures, was the limiting of credit card
purchases to "purchasing gas only at self service gas stations." The
limitation imposed upon credit card purchases eliminated the periodic
washing and/or cleaning of the vehicles. It also eliminated the
scheduled "A" maintenance on the vehicles.
On June 9, 1988, Field Services Representative Marren wrote a letter
to Chief Patrol Agent Williams wherein he demanded to bargain over the
impact of the change in procedures relative to the cleaning and washing
of the vehicles used by the Border Patrol Agents. The letter reads in
pertinent part as follows:
On June 5, 1989, Border Patrol Agent Robert J. Marren of the
Fabens station sought to have his Government (vehicle) washed at
Garay's Texaco. Service vehicles have been taken to Garay's for
cleaning since at least September 1984. Mr. Marren was informed
by PAIC Charles Roberson that there was no money to wash vehicles
for the remainder of the Fiscal Year. Mr. Marren was then advised
by Mr. Roberson that he could wash the vehicle himself, if he
wanted it cleaned.
Management's refusal to allow Mr. Marren to have his Service
vehicle cleaned at Garay's Texaco and management's requirement
that Mr. Marren should wash the vehicle himself, if he wanted a
clean vehicle, constitute changes in an established past practice
and condition of employment. Management may claim that budgetary
considerations mandated this change and they therefore, had no
alternative. Budgetary constraints do not release management from
their bargaining obligations. (See AFGE v. FLRA, 251 U.S. App.
D.C. 335 (1986))
Therefore, either management at the Fabens station allow the
employees working there to continue to have their Government
vehicles cleaned at Garay's Texaco or any other suitable business
establishment, at Government expense, or the Union requests
bargaining over these changes to the fullest extent permitted by
Law. If the bargaining option is your choice, you or your
designated representative should contact me at your earliest
convenience so that ground rules be established so that bargaining
can commence.
On June 27, 1989 Mr. Williams replied to Mr. Marren's letter of June
9, 1989. Mr. Williams' reply reads in pertinent part as follows:
This letter is to acknowledge receipt of your letter dated June
9, 1989.
In your letter you allege that management at Fabens station
made a change to an established past practice and condition of
employment, therefore, you request bargaining.
After examining your allegation, I fnd that not one but three
accepted practices for cleaning government vehicles are utilized
at Fabens station.
The most common practice is the care and protection that each
vehicle operator exercises daily. These actions amount to first
level vehicle maintenance care. In order to accomplish this
operation, the Fabens station is equipped with an air compressor
and water hose. The second practice is when an Agent makes a
request to the Supervisor to have his assigned vehicle washed at
Garay's Texaco. Approval on this type of request is substantiated
by the fact that the vehicle is either heavily muddied, dirty, or
the inside is extremely soiled. The final practice is that a
vehicle wash is included as part of a cyclical preventive
maintenance scheduled service, which normally would be performed
at Garay's Texaco.
Therefore, I find that your request to have your vehicle
cleaned by someone else at your discretion was properly denied by
your Patrol Agent In Charge. Furthermore, your claim that you are
now required to wash your own vehicle is incorrect. As a Border
Patrol Agent, you have always been required to demonstrate proper
care and use of government equipment.
The prohibition on having the vehicles assigned to the Border Patrol
Agents commercially cleaned lasted until October 1, 1989, when a new
fiscal year began. According to Mr. Roberson, the Patrol Agent In
Charge at the Fabens installation, the Agents were not required to clean
their vehicles. He further testified that he did not receive any
complaints from the Agents that cleaning the vehicles themselves was a
burdensome undertaking or that such activity resulted in their uniforms
getting dirty faster than usual.
The record reveals that the Fabens installation had water hoses and
air compressors available to the Agents for purposes of cleaning out
their vehicles and that the Agents were allowed to perform such
activities during working hours.
Border Patrol Agent William Cleary, III testified that with or
without commercial cleaning his uniform became dirty very easily in the
course of his normal work activities. According to Mr. Cleary, the
vehicles used by the Agents ". . . were dirty all the time because of
the type of work we do." When Mr. Cleary cleaned his vehicle once a week
or once every two weeks it took him about 15 minutes to perform such
cleaning.
Mr. Robert Ordonez, a Border Patrol Agent, testified that in the
period between May 22 and October 1 he thoroughly cleaned his truck once
a month. The cleaning took him one hour. Mr. Ordonez also testified
that when his vehicle was cleaned commercially, he was saved from having
to clean the vehicle as thoroughly himself. He further stated that if
he did not clean it thoroughly there would be so much dust that it would
rise and interfere with his driving, irritating his eyes and getting
into his food. Mr. Ordonez agreed that even if vehicles were cleaned
every half hour there would be some dust in the vehicle after a job was
performed. Finally, according to Mr. Ordonez, it took about 15 minutes
to sweep out his vehicle every couple days, a period which he did not
consider impacted on him either personally or on his job.
Mr. Reginald Buck, another Border Patrol Agent, testified that it
took him approximately 15-20 minutes once a month to clean his vehicle
during his work shift. Mr. Buck testified that he did not see a major
impact on himself during the period in which he had to clean his vehicle
himself. He agreed that the vehicles quickly got dirty again after they
have been commercially cleaned and have been taken out into the field
for a normal work mission.
Border Patrol Agent Marren testified that his allergy and asthma
problems, which existed prior to his working for Respondent, were
aggravated when he had to clean his vehicle himself. Mr. Marren
attempted to clean his vehicle twice during the four-month period in
which the trucks could not be commercially cleaned. He further
testified that his uniform got dirty and wet and that all the agents'
uniforms got dirtier faster when they had to clean the vehicles
themselves. Mr. Marren testified that employees receive an annual
uniform allowance but only to buy uniforms. Employees pay for the
cleaning of their uniforms themselves. Mr. Marren also stated that
because he had never cleaned a government vehicle before, he damaged the
electronics equipment. He used water to clean out the vehicle rather
than using the air hose supplied by Respondent because he assumed it
would blow too much dust and cause him to have an asthma attack.
Finally, Mr. Marren testified that prior to May 22nd he had observed
Border Patrol Agents cleaning out their assigned vehicles with a whisk
broom.
Discussion and Conclusions
The General Counsel takes the position that the Respondent violated
Sections 7116(a)(1) and (5) of the Statute by virtue of its action in
unilaterally changing a condition of employment which allowed Border
Patrol Agents to have their assigned vehicles commercially washed
without giving the Union prior notice and subsequently refusing to
bargain with the Union over the procedures to be observed in
implementing the change and appropriate arrangements for employees
adversely affected by the change. In support of its position the
General Counsel contends that the impact or foreseeable impact of the
change upon bargaining unit employees is more than de minimis.
According to the General Counsel the adverse impact on the employees
consisted of dirtier uniforms, aggravated allergy conditions and morale.
The General Counsel does not contend that Respondent was obligated to
engage in bargaining over the substance of the change.
Respondent, on the other hand, takes the position that it was under
no obligation to bargain with the Union over the impact and manner of
implementation of the change since the impact of the change upon unit
employees was de minimis.
Inasmuch as there is no contention that the commercial cleaning and/
or washing of the utility vehicles assigned to the Border Patrol Agents
was not a recognized condition of employment, the sole issue to be
resolved in this proceeding is whether the prohibition on commercially
cleaning the utility vehicles at government expense had a more than de
minimis impact on the unit employees.
On the basis of the entire record, particularly the mutually
corroborative testimony of Border Patrol Agents Cleary, Ordonez and
Buck, the former two being witnesses for the General Counsel, I can not
find that the prohibition on having the utility vehicles commercially
cleaned at Respondent's expense had more than a de minimis impact on the
conditions of employment of the unit employees. Thus, their testimony
makes it clear that the prohibition had little or no significant impact
upon them since dust and dirt was always a problem and the vehicles
would become dusty shortly after the commercial cleaning, which
according to them occurred only once or twice a month prior to May 22,
1989. Further according to their testimony, the cleaning, which
occurred after May 22, took only fifteen minutes of their working time
and did not result in their uniforms getting any dirtier than usual. In
this latter connection, Mr. Marren testified that prior to May 22, 1989,
he had observed Border Patrol Agents cleaning out their vehicles with a
whisk broom.
As to Mr. Marren's allergy problem which was allegedly aggravated by
excessive dust in his utility vehicle, I find that, at best, commercial
cleaning of his vehicle might have given him some relief for several
hours, not days, of any month. Dust in the vehicles, due to their use
on dirt and caliche roads was a fact of life, and again according to the
testimony of Agents Cleary, Ordonez and Buck, dust began to accumulate
on the vehicles immediately after they were cleaned and put into
service. Moreover, while the cleaning of the vehicles was considered to
be part of the "proper care" to be given by the Agents to the vehicles
assigned to them, there is no showing in the record that there was any
required amount of times that an Agent was to clean his vehicle between
the scheduled 3000-mile "A" maintenance. Nor was there any showing that
any Agent had ever been disciplined for failure to clean his vehicle.
/2/
Based upon the foregoing considerations, I find that the prohibition
on commercial cleaning of the utility vehicles at Government expense had
a de minimis impact on the conditions of employment of the unit
employees. /3/ Accordingly, it is recommended that the Authority adopt
the following order dismissing the instant complaint in its entirety.
ORDER
It is hereby Ordered that the Complaint should be, and hereby is,
dismissed in its entirety.
Issued, Washington, D.C., August 22, 1990
BURTON S. STERNBURG
Administrative Law Judge
FOOTNOTES
(*) The Judge previously had noted testimony from Agent Marren that
an attempt to clean his vehicle had caused damage to the vehicle's
"electronics equipment." Judge's Decision at 7.
(1) In the absence of any objection, the General Counsel's "Motion To
Correct Transcript Of The Proceedings," should be, and hereby is,
granted.
(2) While Mr. Marren alleges that the cleaning of the vehicle by the
air hose method would have aggravated his existing allergy condition,
there is no showing in the record that he had ever attempted to use the
air hose method.
(3) Cf. Department of Health and Human Services, Social Security
Administration, 24 FLRA 403.
39 FLRA 1322
39 FLRA NO. 116
Dept. of Interior, Bureau of Indian Affairs, Chemawa Indian Boarding
School and NFFE, Local 241 (Latsch, Arbitrator), Case No. 0-AR-1994
(Decided March 22, 1991)
STATUTE
7122(a)
7116(d)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
CONCURRENT ARBITRATION AND ULP
ELECTION OF PROCEDURES
FIRST FILED
DIGEST NOTES
The Arbitrator denied a grievance as "not arbitrable." The Authority
concluded that the Statute requires the Union to make a decision as to
which forum it wishes to use to adjudicate a personnel dispute, and that
as the issues in the grievance and a ULP charge were the same, while the
union did not file the ULP and the arbitration request at the same time,
it would be inappropriate to proceed with the grievance while the
statutory ULP is also under consideration.
The Authority concluded that 7116(d) does not bar consideration of
the grievance in the case and, therefore, it set aside the award and
remanded it to the parties for further processing. In this regard, the
Authority noted that it was clear from the record that the ULP charge
was filed after the grievance. "Because the grievance was filed first,
the ULP charge does not bar resolution of the grievance under section
7116 of the Statute." "Although the Regional Director issued a complaint
on the later-filed ULP charge before the grievance was processed to
arbitration, this action does not alter the filing dates, which are the
determinative factor under section 7116(d)."
Case No. 0-AR-1994
U.S. DEPARTMENT OF INTERIOR BUREAU OF INDIAN AFFAIRS CHEMAWA INDIAN
BOARDING SCHOOL
(Agency)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 241
(Union)
DECISION
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator Kenneth J. Latsch 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's
opposition to the Union's exception was untimely filed and has not been
considered. /*/
For the following reasons, we conclude that the award is contrary to
section 7116(d) of the Statute. Accordingly, we will set aside the
award and remand the matter to the parties for resubmission to
arbitration.
II. Background and Arbitrator's Award
On May 30, 1989, the Agency sent a letter to the Union giving notice
that the Agency was placing certain employees in "nonduty/nonpay" status
from the middle of June 1989, to August 27, 1989. Award at 9. On June
8, 1989, the Union filed a grievance alleging, among other things, that
the Agency's "furloughing of the employees was not in accord with
statutory requirements. . . ." Exception at 1. Because the parties
could not resolve the issue, the Union invoked arbitration on June 21,
1989. Award at 11.
On July 17, 1989, the Union filed an unfair labor practice (ULP)
charge against the Agency, alleging that the Agency had furloughed the
Union president and had failed to bargain over the furlough. Id. at
11-12. On November 30, 1989, the Authority's Regional Director issued a
complaint in Case No. 9-CA-90546.
The Arbitrator denied the grievance finding that it was "not
arbitrable." Award at 18. The Arbitrator stated that section 7116(d) of
the Statute requires the Union to make "a decision as to which forum it
wishes to use to adjudicate a personnel dispute." Id. at 16. The
Arbitrator found that the issues in the grievance and the ULP charge
were the same, explaining that "(w)hile the (ULP) complaint deals with a
specific instance, the underlying issue (the employer's decision to
furlough employees) is the same as that presented in the grievance." Id.
at 17. Therefore, the Arbitrator concluded that "(w)hile the union did
not file the complaint and the arbitration request at the same time, it
appears that it would be inappropriate to proceed in this forum while
the statutory unfair labor practice is also under consideration." Id.
Accordingly, the Arbitrator denied the grievance.
III. Union's Exception
The Union contends that the award violates section 7116(d) of the
Statute. The Union maintains that because the issues in the grievance
and the ULP are different "there is no bar in Section 7116(d) to either
action. . . ." Exception at 2. The Union states that "(t)he gravamen
of the grievance was that the furloughing of the employees was not in
accord with statutory requirements established a year earlier in Public
Laws 100-297 and 100-427." Id. at 1. In contrast, the Union maintains
that "the issue raised by the (ULP) was a refusal to bargain by
Management." Id.
IV. Analysis and Conclusions
We conclude that section 7116(d) of the Statute does not bar
consideration of the grievance in this case and, therefore, we will set
aside the award and remand the matter to the parties for further
processing.
Section 7116(d) 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. An issue is "raised" within the meaning
of section 7116(d) at the time of the filing of a grievance or an unfair
labor practice charge even if the grievance or charge is not adjudicated
on the merits. For example, Lowry Air Force Base, Denver, Colorado, 32
FLRA 792, 794 (1988); Headquarters, Space Division, Los Angeles Air
Force Station, California and American Federation of Government
Employees, Local 2429, 17 FLRA 969, 970-71 (1985).
It is clear from the record that the grievance was filed on June 8,
1989, and that the unfair labor practice charge was filed on July 17,
1989. Because the grievance was filed first, the ULP charge does not
bar resolution of the grievance under section 7116 of the Statute.
Although the Regional Director issued a complaint on the later-filed ULP
charge before the grievance was processed to arbitration, this action
does not alter the filing dates, which are the determinative factors
under section 7116(d). We conclude, therefore, that the Arbitrator's
conclusion that the later-filed ULP charge was a bar under section
7116(d) of the Statute to arbitration of the grievance on the merits is
inconsistent with law. Compare 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 (1990) (Arbitrator determined correctly that an earlier-filed ULP
charged barred consideration of the grievance). As the grievance was
filed before the ULP charge, it is unnecessary to address whether the
issues raised in the grievance and the charge are the same.
V. Decision
The award is set aside. The matter is remanded to the parties for
resubmission to arbitration before a mutually agreed upon arbitrator.
FOOTNOTES
(*) The Authority issued an Order directing the Agency to show cause
why its opposition should not be considered untimely filed. The Agency
did not respond to the Order.
39 FLRA 1306
39 FLRA NO. 115
DHHS, Pub. Health Serv. and Cent. for Disease Control, NIOSH,
Appalachian Lab. for Occupational Safety and Health and AFGE, Local
3430, Case No. 3-CA-00190, 00409, 00410, 00411 (Dec. March 22, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
DESIGNATION OF SMOKING AREAS
AGENCY HEAD DISAPPROVAL
DIRECTION TO RECIND MEMORANDUM OF UNDERSTANDING
REFUSAL TO BARGAIN OVER PROPOSALS DETERMINED TO BE NEGOTIABLE
INTERFERENCE WITH SUBORDINATE BARGAINING RELATIONSHIP
REPUDIATION OF AGREEMENT
DIGEST NOTES
In Case No. 3-CA-00190, the Authority found that Public Health
Service (PHS) violated section 7116(a)(1) and (5) when it disapproved
contractual provisions concerning the designation of smoking areas on
the ground that it was inconsistent with HHS regulations on smoking.
The Authority had previously addressed that regulation, finding that the
Agency had not demonstrated that a compelling need existed for the rule.
The disputed provision in the instant case was not materially different
from proposals found to be negotiable. The Authority further found in
this case that the record fails to establish that the Center for Disease
Control (CDC) and National Institute for Occupational Safety and Health
(NIOSH) refused to bargain over the proposal. There is no evidence in
the record that CDC interfered with the bargaining relationship between
NIOSH and the Union or otherwise violated the Statute by declaring the
proposal to be nonnegotiable. While NIOSH declared the proposal to be
nonnegotiable, it did in fact bargain over the subject of designated
smoking areas. Finally, as to this case, the Authority found that the
record did not establish that HHS violated the Statute, noting that
"more than a mere reference to the existence of policy by an agency is
necessary to establish that an agency has unlawfully interfered with the
collective bargaining relationship between its subordinate activities
and the union."
In Cases Nos. 3-CA-00409, 00410 and 00411, the Authority found that:
(1) Respondent PHS violated 7116(a)(1) and (5) by directing CDC to
discontinue the designated smoking areas at NIOSH's Morgantown, West
Virginia facility; (2) Respondents CDC and NIOSH did not violate 7116(
a)(1) and (5) because their actions were merly ministerial in nature;
and (3) the record does not establish that HHS committed any violation.
The Authority noted its precedent that when management at a higher level
directs or requires management at a subordinate level to act in a manner
inconsistent with the subordinate level's bargaining obligation, the
higher level violates the Statute and where the subordinate level merely
carries out higher level instructions and acts ministerially and without
discretion in the matter, it does not violate the Statute. It was
Respondent PHS that directed the discontinuance of the designated
smoking areas.
As a remedy, the Authority required the reinstatement of the
designated smoking areas and the posting of appropriate notices.
Case Nos. 3-CA-00190, 3-CA-00409, 3-CA-00410 and 3-CA-00411
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)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3430, AFL-CIO
(Charging Party/Union)
DECISION AND ORDER
March 22, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
in accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who agree
that no material issue of fact exists. The General Counsel and the
Respondents filed briefs with the Authority. The Respondents also filed
a motion to stay issuance of the Authority's decision in this case. /1/
In Case No. 3-CA-00190, the complaint alleges that Respondents U.S.
Department of Health and Human Services (HHS) and Public Health Service,
(PHS) violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by disapproving a
provision negotiated between the Appalachian Laboratory for Occupational
Safety and Health, National Institute for Occupational Safety and Health
(NIOSH) and the Union concerning the designation of smoking areas. The
complaint further alleges that Respondents Centers for Disease Control
(CDC) and NIOSH violated section 7116(a)(1) and (5) of the Statute by
refusing to negotiate over Union proposals that are substantially
identical to proposals previously held to be negotiable by the
Authority.
In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, the complaints
allege that: (1) Respondents HHS and PHS unlawfully interfered with the
bargaining relationship between Respondent NIOSH and the Union by
directing Respondent CDC to discontinue the designated smoking areas at
the NIOSH, Morgantown, West Virginia facility; (2) Respondent CDC
violated section 7116(a)(1) and (5) of the Statute by directing
Respondent NIOSH to rescind the parties' Memorandum of Understanding
(MOU) and discontinue its designated smoking areas; and (3) Respondent
NIOSH violated section 7116(a)(1) and (5) of the Statute by repudiating
the (MOU) and discontinuing the designated smoking areas at its
Morgantown, West Virginia facility.
For the following reasons, we find, in Case No. 3-CA-00190, that
Respondent PHS committed the unfair labor practices alleged, but that
the complaint against Respondents CDC, NIOSH and HHS should be
dismissed. In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, we find
that Respondent PHS committed the unfair labor practices alleged, but
that the complaint against the Respondents CDC, HHS and NIOSH should be
dismissed.
II. Facts
On August 14, 1989, NIOSH and the Union executed a collective
bargaining agreement covering the professional and nonprofessional unit
employees located at the NIOSH's Morgantown, West Virginia facility.
Article 31, Section 1 of the agreement provided, in relevant part, that:
. . . Smoking will not be permitted in work areas or private
offices. Smoking will only be permitted in designated areas.
The Union will work with the Employer in selecting designated
areas. A sign shall be displayed prominently in designated
smoking areas. There will be adequate ventilation and lighting in
designated smoking areas to provide an environment which conforms
to recognized safety and comfort standards.
Stipulation at 5.
On September 6, 1989, Respondent PHS disapproved several provisions
of the agreement, including Article 31, Section 1, during agency head
review pursuant to section 7114(c) of the Statute. Jt. Exh. 7.
Respondent PHS advised Respondents CDC and NIOSH and the Union that
Article 31, Section 1 was disapproved because it was inconsistent with
HHS General Administrative Manual Chapter 1-60 and HHS Federal Personnel
Manual Instruction 792-3, which ban smoking in all HHS owned and leased
building space.
On December 11, 1989, the parties met to renegotiate the provisions
of the agreement which had been disapproved by Respondent PHS. With
respect to the smoking policy provision, the Union "proposed to maintain
the current designated smoking areas." Jt. Exh. 8. Respondents CDC and
NIOSH "rejected the Union(')s proposal on the grounds of
non-negotiability." Id. See also Stipulation at 5. The Union asserted
that the Respondents' refusal to bargain on the issue of designated
smoking areas constituted an unfair labor practice.
Subsequently, Respondent NIOSH and the Union signed an MOU agreeing
that "until the issue of smoking (was) finalized, the two designated
smoking areas inside Respondent NIOSH's Morgantown, West Virginia
facility . . . would continue." Stipulation at 5-6. Respondent NIOSH
and the Union also reached agreement with respect to the other
disapproved provisions of their August 14, 1989 collective bargaining
agreement and forwarded the new agreement to Respondent PHS.
By memorandum dated January 9, 1990, Respondent PHS advised
Respondent CDC that it had reviewed the renegotiated collective
bargaining agreement and "found the agreement as amended to be
consistent with pertinent laws and regulations(.)" Jt. Exh. 9.
Respondent PHS noted that "the parties (had) deleted from the agreement
the article that was formerly Article 31, 'Smoking Policy.'" Id.
Respondent PHS further advised that it was approving the collective
bargaining agreement as of the date of the memorandum. A copy of the
January 9, 1990 memorandum was sent to Respondent NIOSH and the Union.
By memorandum dated February 27, 1990, Respondent PHS advised
Respondent CDC that the MOU between Respondent NIOSH and the Union,
providing for the continuation of the designated smoking areas in the
Appalachian Laboratory, was contrary to the HHS smoke-free environment
policy. Respondent PHS directed Respondent CDC to "work with the
managers of the Appalachian Laboratory to discontinue the designated
smoking areas at Morgantown so that the Laboratory is in full compliance
with the smoke-free environment policy." Jt. Exh. 10. By memorandum of
March 7, 1989, Respondent CDC advised the Respondent NIOSH that:
PHS has asked us to rescind the smoking memorandum of
understanding agreeing to the "status quo" until the HHS "no
smoking case" is litigated. (See attachment)
Would you please notify the union and place notices in the
designated smoking areas to notify employees who smoke that the
areas cannot be used as designated smoking areas after March 31,
1990.
Would you also ask the employees who smoke to use the dock
areas for smoking and to avoid smoking in the front of the
building.
Jt. Exh. 11.
On April 1, 1990, Respondent NIOSH discontinued the designated
smoking areas at its Morgantown, West Virginia facility.
III. Position of the Parties
A. General Counsel
The General Counsel contends that Respondents CDC and NIOSH violated
section 7116(a)(1) and (5) of the Statute by refusing to bargain with
the Union over designated smoking areas. The General Counsel asserts
that in Family Support Administration, the Authority "specifically held
that there existed no compelling need for the Agency's regulation
banning smoking" and "that proposals concerning the implementation of an
agency's smoking policy involve fully negotiable conditions of
employment of bargaining unit employees(.)" General Counsel's Brief at
4-5. The General Counsel argues that once a proposal has been
determined to be negotiable by the Authority, "it is a violation of
7116(a)(1) and (5) . . . for an agency to refuse to negotiate . . . on
that proposal, or on a proposal without material differences, in similar
circumstances." Id. at 4.
Next, the General Counsel contends that Respondents HHS and PHS
violated sectin 7116(a)(1) and (5) of the Statute because they
"precluded their subordinate elements, Respondents CDC and NIOSH, from
fulfilling the obligation to bargain." Id. at 5. The General Counsel
argues that Respondents HHS and PHS prevented Respondents CDC and NIOSH
from fulfiling their bargaining obligations when Respondent PHS
"disapproved of those terms of the newly executed collective bargaining
agreement which pertained to designated smoking areas" and relied
exclusively on the regulations of HHS as the basis for its disapproval.
Id.
The General Counsel also argues that Respondents HHS, PHS, and CDC
violated section 7116(a)(1) and (5) of the Statute by directing
Respndent NIOSH to repudiate the MOU and discontinue the designated
smoking areas at the Morgantown, West Virginia facility. The General
Counsel also argues that Respondent NIOSH violated section 7116(a)(1)
and (5) of the Statute when it repudiated the MOU and discontinued the
designated smoking areas.
To remedy the violations, the General Counsel requests that the
Respondents be required to reinstate the designated smoking areas and
post an appropriate notice to employees.
B. Respondents
The Respondents assert that their actions did not violate the
Statute. The Respondents argue that a "compelling need" exists for the
Department's rule or policy establishing a smoke-free environment, which
bars negotiations on the subject. Respondent's Brief at 3. The
Respondents assert, in this regard, that the decision of the U.S. Court
of Appeals for the D.C. Circuit on review of Family Support
Administration "will be determinative of the issue here." Id. at 2. /2/
IV. Analysis and Conclusions
A. Case No. 3-CA-00190
1. Respondent PHS
We find that Respondent PHS violated section 7116(a)(1) and (5) of
the Statute when it disapproved the contractual provision concerning
designated smoking areas.
An agency violates section 7116(a)(1) and (5) of the Statute when it
refuses to bargain over a proposal that is the same or substantially
identical to a proposal the Authority has previously determined to be
negotiable. See, for example, U.S. Department of the Treasury, Customs
Service, Washington, D.C. and Customs Service, Northeast Region, Boston,
Massachusetts, 38 FLRA 770, 788 (1990); U.S. Department of Defense
Dependents Schools, Dependents School Mediterranean Region, Madrid,
Spain, 38 FLRA 755 (1990); Department of the Air Force, U.S. Air Force
Academy, 6 FLRA 548 (1981), aff'd sub nom. Department of the Air Force,
United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983).
The Authority has stated, in this regard, that an agency "acts at its
peril" in refusing to bargain over such proposals. U.S. Department of
the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420
(1990). Additionally, an agency acts at its peril when it disapproves a
negotiated provision that is not materially different from one
previously found negotiable by the Authority. For example, Department
of the Treasury and Internal Revenue Service, 22 FLRA 821, 827-30
(1986).
The Authority has consistently found that proposals concerning the
implementation of an agency's smoking policy involve negotiable
conditions of employment of bargaining unit employees. The Authority
has held that proposals providing for designated smoking areas and
requiring previous smoking policies to remain in effect pending
agreement on the new policy are negotiable. See, for example, U.S.
Department of the Air Force, Space Systems Division, Los Angeles Air
Force Base, California, 38 FLRA 1485 (1991); U.S. Department of the Air
Force, 832d Combat Support Group, Luke Air Force Base, Arizona, 36 FLRA
289 (1990); Family Support Administration; Department of Health and
Human Services, Public Health Service, Health Resources and Services
Administration, Oklahoma Area, Indian Health Service, Oklahoma City,
Oklahoma, 31 FLRA 498 (1988), enforced sub nom. Department of Health and
Human Services, Indian Health Service v. FLRA, 885 F.2d 911 (D.C. Cir.
1989).
The parties stipulated that Respondent PHS disapproved the
contractual provision concerning designated smoking areas on the ground
that it was inconsistent with the HHS regulation on smoking. The same
regulation wa addressed by the Authority in Family Support
Administration, where the Authority found that the Agency had not
demonstrated that a compelling need under section 7117(a)(2) of the
Statute existed for its rule. As noted, the Authority's decision in
Family Support Administration was enforced by the U.S. Court of Appeals
for the D.C. Circuit. HHS v. FLRA.
The disputed provision is not materially different from proposals
previously found by the Authority to be negotiable. Moreover, the
Respondents' sole objection to the provision was rejected by the
Authority and the court in HHS v. FLRA. /3/ Accordingly, we find that
Respondent PHS violated section 716(a)(1) and (5) of the Statute by
disapproving the contractual provision. /4/
2. Respondents CDC and NIOSH
We conclude that the record fails to establish that Respondents CDC
and NIOSH refused to bargain over the Union's proposal concerning the
designation of smoking areas.
The record reflects that when Respondent PHS disapproved the
contractual provision regarding smoking areas, it advised Respondents
CDC and NIOSH that the provisions conflicted with the HHS smoke-free
environment policy. The parties stipulated that Respondents CDC and
NIOSH declared the Union's proposal concerning designated smoking areas
nonnegotiable.
Although the parties stipulated that Respondent CDC declared the
Union's proposals to be nonnegotiable, there is no evidence of such
declaration in the record before us. The parties' MOU states, in this
regard, that the "employer has rejected the Union(')s proposal on the
grounds of non-negotiability." Jt. Exh. 8. The MOU is signed by
representatives of Respondent NIOSH and the Union only. In addition,
although the Union holds exclusive recognition with Resondent NIOSH,
there is no evidence in the record of a bargaining relationship between
the Union and Respondent CDC. Based on the record before us, therefore,
there is no evidence that Respondent CDC interfered with the bargaining
relationship between NIOSH and the Union or otherwise violated the
Statute by declaring the Union's proposal nonnegotiable. Accordingly,
we will dismiss this allegation.
The record is clear that Respondent NIOSH declared the Union's
proposal to be nonnegotiable. See Jt. Exh. 8. It is also clear,
however, that Respondent NIOSH and the Union did in fact bargain over
the subject of designated smoking areas. In fact, Respondent NIOSH and
the Union executed an MOU in which they agreed that employees would be
permitted to continue to use the existing designated smoking areas until
final decisions were reached in the pending cases concerning the
negotiability of the HHS smoke-free environment policy. Moreover,
Respondent NIOSH's assertion of nonnegotiability resulted from, and was
consistent with the disapproval of the parties' agreement by, Respondent
PHS.
In this situation, we find that it would not effectuate the purposes
and policies of the Statute to find that Respondent NIOSH violated the
Statute by declaring the Union's proposal nonnegotiable. Despite
Respondent NIOSH's assertion that the Union's proposals were
nonnegotiable, the Respondent bargained over the proposals. It appears,
in this regard, that notwithstanding the actions taken and directed by
higher-level management, Respondent NIOSH actively sought to fulfill its
bargaining obligations under the Statute. We will not, therefore, find
that the Respondent NIOSH's assertion of nonnegotiability violated the
Statute.
Based on the foregoing, we conclude that the record does not
establish that Respondents CDC and NIOSH violated section 7116(a)(1) and
(5) of the Statute by refusing to bargain over the Union's proposals
concerning designated smoking areas. Accordingly, we will dismiss the
complaint as to Respondents CDC and NIOSH.
3. Respondent HHS
We find that the record does not establish that the Respondent HHS
violated section 7116(a)(1) and (5), as alleged in the complaint.
The General Counsel's allegation against the Respondent HHS is based
on the Respondent PHS's letter disapproving the collective bargaining
provisions. The General Counsel argues that the Respondent HHS violated
the Statute because the Respondent PHS's letter referred to the HHS
regulations of August 25, 1987, concerning smoking in the workplace.
We reject the General Counsel's contention. More than a mere
reference to the existence of policy by an agency is necessary to
establish that an agency has unlawfully interfered with the collective
bargaining relationship between its subordinate activities and the
union. For example, Department of the Navy and Washington Navy Yard, 28
FLRA 1022, 1024-25 (1987) (Washington Navy Yard), reversed on other
grounds mem. sub nom. Department of the Navy, Washington Navy Yard v.
FLRA, Nos. 87-1581, 87-1665 (D.C. Cir. Aug. 9, 1990). The stipulated
record contains no evidence that the Respondent HHS required or
instructed the Respondent HHS to disapprove the negotiated provision,
between the Respondent NIOSH and the Union, or that Respondent HHS
interfered in any other way with the collective bargaining relationship
between Respondent NIOSH and the Union. In fact, the HHS regulation
underlying the dispute in this case provides that prior to
"implementation" of the regulation, a subordinate activity "shall meet
its obligation under (the Statute) . . . where there is an exclusive
representative for the employees." Jt. Exh. 5 at 3. Accordingly, we
will dismiss the complaint as to Respondent HHS.
B. Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411
We find that: (1) Respondent PHS violated section 7116(a)(1) and (5)
of the Statute by directing Respondent CDC to discontinue the designated
smoking areas at Respondent NIOSH's Morgantown, West Virginia facility;
(2) Respondents CDC and NIOSH did not violate section 7116(a)(1) and (5)
of the Statute because their actions were merely ministerial in nature;
and (3) the record does not establish that Respondent HHS committed the
unfair labor practice alleged in the complaint.
When management at a higher level in an agency directs or requires
management at a subordinate level to act in a manner that is
inconsistent with the subordinate level's bargaining obligations under
the Statute, the higher level entity violates section 7116(a)(1) and (5)
of the Statute. See United States Department of Agriculture, 30 FLRA
22, 25-26 (1987); United States Department of Agriculture, Washington,
D.C. and United States Department of Agriculture, Farmers Home
Administration, Little Rock, Arkansas, 24 FLRA 682, 686-87 (1986)
(Farmers Home); Headquarters, Department of the Army, Washington, D.
C., and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort
Leonard Wood, Missouri, 22 FLRA 647 (1986) (Fort Leonard Wood). Where a
subordinate level activity merely carries out higher level instructions
and acts ministerially and without discretion in the matter, the
Authority will not find that the subordinate level activity violated the
Statute by its actions. See, for example, Department of the Interior,
Bureau of Reclamation, Washington, D.C. and Department of Interior,
Bureau of Reclamation, Lower Colorado Regional Office, Boulder City,
Nevada, 33 FLRA 671, 680 (1988); Farmers Home 24 FLRA at 686-87;
United States Department of the Treasury, Internal Revenue Service and
Internal Revenue Service, Austin District, and Internal Revenue Service
Houston District, 23 FLRA 774, 779-80 (1986).
In these consolidated cases, the record establishes that Respondent
NIOSH and the Union executed a MOU in which Respondent NIOSH agreed that
it would continue the existing designated smoking areas until the
smoking issue was resolved. The parties stipulated, in this regard,
that Respondent PHS "directed Respondent CDC to discontinue the
designated smoking areas at Respondent NIOSH's Morgantown, West Virginia
facility." Stipulation at 6. The parties also stipulated that
Respondent CDC "directed Respondent NIOSH to discontinue its designated
smoking areas at the Morgantown, West Virginia facility." Id.
The record supports the parties' stipulation that Respondent PHS
directed the discontinuation of the designated smoking areas. The
Respondent PHS's letter to the Respondent CDC noted, in this regard, the
parties' MOU and that "the continuatin of the designated smoking areas
in the Appalachian Laboratory is consistent with the wishes of (the
Union) and with the provisions of current case law(.)" Jt. Exh. 10.
The letter concluded:
We believe that no organization in PHS should continue the
practice of having designated smoking areas contrary to the HHS
smoke-free environment policy while there still has been no final
decision by the courts in the pending HHS smoking cases.
Accordingly, we ask that you work with the managers of the
Appalachian Laboratory to discontinue the designated smoking areas
at Morgantown so that the Laboratory is in full compliance with
the smoke-free environment policy. Please inform us when this has
been done and of any union action taken in response to the
discontinuation.
Id. at 2. It is clear from this letter that Respondent PHS was aware
of, and directed Respondent CDC to take actions to cause Respondent
NIOSH to repudiate, the parties' MOU. In fact, the letter specifically
requested notification as to any Union action taken in response to the
discontinuation. We conclude, in these circumstances, that Respondent
PHS violated section 7116(a)(1) and (5) of the Statute by directing its
subordinate organization, Respondent CDC, to instruct its subordinate
activity, Respondent NIOSH, to undertake actions which breached its
bargaining obligations under the Statute. By its actions, Respondent
PHS prevented its subordinate activity from complying with its statutory
obligations and, thereby, unlawfully interfered in the bargaining
relationship between Respondent NIOSH and the Union. Compare Department
of Defense, Department of the Navy, Washington, D.C., 20 FLRA 121, 123
(1985) (Department of the Navy) (higher-level management did not violate
the Statute by issuing directive preventing subordinate activities from
fulfilling their statutory obligations because the directive "did not
unconditionally direct . . . subordinate levels to make the change, but
rather gave them the direction to change the policy 'to the maximum
extent possible within current labor agreement . . . constraints.'").
Respondent CDC took actions to effectuate the Respondent PHS's
direction. Respondent CDC directed the Respondent NIOSH to "notify the
union and place notices in the designated smoking areas to notify
employees who smoke that the areas cannot be used as designated smoking
areas after March 31, 1990." Jt. Exh. 11. The Respondent CDC noted that
Respondent PHS had asked for rescission of the MOU. Respondent NIOSH
complied with the directions from higher-level management and, on April
1, 1990, discontinued the designated smoking areas.
We conclude that Respondent CDC did not violate section 7116(a)(1)
and (5) of the Statute by rescinding the lawful and binding MOU between
its subordinate activity, Respondent NIOSH, and the Union. We conclude
also that Respondent NIOSH did not violate the Statute by discontinuing
the designated smoking areas. In our view, these Respondents were
deprived of their discretion to comply with the MOU when Respondent PHS
directed the repudiation of the MOU and the discontinuation of the
designated smoking areas. As such, Respondents CDC and NIOSH were
merely implementing the directives of higher level agency management and
their actions were ministerial in nature. We conclude, in these
circumstances, that the purposes and policies of the Statute would not
be effectuated by finding separate violations by Respondents CDC and
NIOSH.
Finally, for reasons discussed more fully in connection with Case No.
3-CA-00190, we conclude that the record does not support a conclusion
that Respondent HHS interfered with the collective bargaining
relationship between its subordinate level activities and the Union.
See Washington Navy Yard, 28 FLRA at 1024-25; Department of the Navy,
20 FLRA at 122-23. Accordingly, we will dismiss the complaint against
Respondent HHS.
V. Summary
In Case No. 3-CA-00190, we conclude that: (1) Respondent PHS
violated section 7116(a)(1) and (5) of the Statute by disapproving a
contractual provision which was not materially different from proposals
previously found by the Authority to be negotiable; (2) Respondents
HHS, CDC, and NIOSH did not violate section 7116(a)(1) and (5) of the
Statute.
In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, we conclude
that: (1) Respondent PHS violated section 7116(a)(1) and (5) of the
Statute by unlawfully interfering with the subordinate activity's
collective bargaining relationship with the Union and, as a result, by
preventing the subordinate activity from complying with its obligations
under the Statute; (2) Respondents CDC and NIOSH did not violate the
Statute as alleged in the complaint because their actions were
ministerial in nature; and (3) the record does not support a conclusion
that Respondent HHS committed the unfair labor practice alleged in the
complaint.
VI. Remedy
As a remedy, the General Counsel requests that the Respondents be
required to reinstate the designated smoking areas and post an
appropriate Notice to employees. Here, the record establishes that the
designated smoking areas at the NIOSH, Morgantown, West Virginia
facility were eliminated pursuant to the unlawful actions of Respondent
PHS. In these circumstances, we find that the remedy requested by the
General Counsel is appropriate and will effectuate the purposes and
policies of the Statute.
VII. 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,
restrining or coercing its employees in the exercise of their
rights assured 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, 1989.
(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.
FOOTNOTES
(1) The Respondents requested that the Authority stay the issuance of
a decision until the U.S. Court of Appeals for the District of Columbia
Circuit reviewed the Authority's determination in National Treasury
Employees Union, Chapter 250 and Department of Health and Human Service,
Family Support Administration, Washington, D.C., 33 FLRA 61 (1988),
(Family Support Administration). The Authority's decision in Family
Support Administration was enforced by the court in Department of Health
and Human Services, Family Support Administration v. FLRA, 920 F.2d 45
(D.C. Cir. 1990) (HHS v. FLRA), rehearing denied (Jan. 31, 1991).
Accordingly, the Respondents' request is moot.
(2) See n.1 above.
(3) The Respondents agree that the court's decision in HHS v. FLRA on
the issue of whether there is a compelling need for the HHS smoking
policy regulation is dispositive of the issue in this case.
Respondent's Motion to Stay at 2-3.
(4) As the issue of compelling need for the disputed regulation has
been resolved, we are not required here to make a compelling need
determination. See generally, FLRA v. Aberdeen Proving Ground, 485 U.
S. 409 (1988). Compare U.S. Department of the Army, Fort Buchanan, San
Juan, Puerto Rico, 37 FLRA 919 (1990).
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
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, 1989.
(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)
653-5091.
39 FLRA 1288
39 FLRA NO. 114
Dept. of Justice, Federal Bureau of Prisons, U.S. Penitentiary,
Lewisburg, Pennsylvania and AFGE, Council of Prison Locals, Local 148
C-33 (Ferko, Arbitrator), Case No. 0-AR-1867 (Decided March 21, 1991)
STATUTE
7122(a)
7106(a)(2)(A)
7103(a)(2)
7106(a)(2)(B)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
WRITTEN APOLOGY
NONPRECEDENTIAL ARBITRATION AWARDS
PUNITIVE REMEDY
ESSENCE OF AGREEMENT
LETTER OF REPRIMAND
5 U.S.C. 7503 and 7512-13
5 C.F.R. 735.107
MANAGEMENT'S DISCIPLINARY AUTHORITY
RIGHT TO DISCIPLINE
EMPLOYEES
PROVIDING LETTER OF REPRIMAND TO SUPERVISOR TO GRIEVANT
PRIVACY ACT
5 U.S.C. 552a
EMPLOYEE PERSONNEL RECORD
SENSITIVITY TRAINING
RIGHT TO ASSIGN WORK
DIGEST NOTES
The Arbitrator concluded that the Agency violated the agreement by
requiring the grievant to remain on his post past his work shift after
he requested to leave in order to take care of a medical condition. The
Arbitrator also concluded that a second-line supervisor harassed,
intimidated, restrained, coerced, threatened, and committed acts of
reprisal against the grievant when the grievant continued to make his
health concern known. As a remedy, the Arbitrator ordered that the
Agency: (1) give a letter of reprimand to the second-line supervisor;
(2) place the letter of reprimand in the second-line supervisor's file
for 1 year; (3) "personally" give a copy of the letter of reprimand to
the grievant for his personnel file; (4) give the grievant a written
apology for the "lack of concern exhibited;" (5) ensure within 1 year
that the second-line supervisor is given or will take a class in
sensitivity training concerning human relations; and (6) not in any way
use this incident of the facts or the case in its future evaluations and
performance appraisals of the grievant.
On exceptions going to the remedy portion requiring a written
apology, the Authority rejected the Agency's arguments that the award
was inconsistent with another arbitrator's decision, noting that
Arbitration awards are not precedential. Also rejected was the argument
that the Arbitrator exceeded his authority by issuing a "punitive"
award, noting that the award was responsive to the issues framed by the
Arbitrator and was within the Arbitrator's authority to award. Also
rejected was the argument that the award does not derive its essence
from the agreement. Accordingly, the Authority found that the Agency
had failed to demonstrate that the portion of the remedy requiring a
written apology was deficient.
On the issue of the ordered letter of reprimand to the second-line
supervisor, the Authority rejected Agency arguments that it violates
cited portions of the U.S.C., C.F.R. and 7106(a)(2)(A). On the latter
point, the Authority noted significantly, that in their view, requiring
the Agency to issue a letter of reprimand to a supervisor does not
directly interfere with management's right to discipline employees
because that right applies only to "employees" and section 7103(a)(2)
expressly excludes supervisors from the definition of "employees."
On the portion of the award ordering the Agency to give a copy of the
letter of reprimand to the grievant, the Authority concluded that such
release would constitute a clearly unwarranted invasion of privacy under
the provisions of the Privacy Act and Freedom of Information Act.
Accordingly, the Authority set aside that portion of the award.
As to the ordering of sensitivity training, the Authority rejected
the argument that it interfered with management's right to assign work;
that the Arbitrator exceeded his authority; that it does not draw its
essence from the agreement; and that such a remedy violates the Statute
and could never have been contractually authorized. The Authority
concluded that the enforcement of the agreement does not abrogate the
Agency's right to assign, noting that the requirement of sensitivity
training does not prevent the Agency from making training determinations
as to other employees and preserves the Agency's ability to determine
matters including when and where the training is to take place, as well
as its content and duration.
The award was modified to delete the sentence ordering a copy of the
reprimand to be given to the grievant.
Case No. 0-AR-1867
U.S. DEPARTMENT OF JUSTICE U.S. FEDERAL BUREAU OF PRISONS U.S.
PENITENTIARY LEWISBURG, PENNSYLVANIA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF PRISON LOCALS
LOCAL 148 C-33
(Union)
DECISION
March 21, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the award of
Arbitrator Joseph G. Ferko, Jr. filed by the Agency under section 7122(
a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations. The
Union did not file an opposition to the Agency's exceptions.
The Arbitrator concluded that the Agency violated the parties'
collective bargaining agreement by requiring the grievant to remain on
his post past his work shift after he requested to leave in order to
take care of a medical condition. The Arbitrator also concluded that a
second-line supervisor harassed, intimidated, restrained, coerced,
threatened, and committed acts of reprisal against the grievant when the
grievant continued to make his health concern known. As a remedy, the
Arbitrator ordered that the Agency: (1) give a letter of reprimand to
the second-line supervisor citing him with the "failure to look after
the medical concerns of (the grievant)"; (2) place the letter of
reprimand in the second-line supervisor's personnel file for 1 year;
(3) "personally" give a copy of the letter of reprimand to the grievant
for his personal file; (4) give the grievant a written apology for the
"lack of cocern exhibited" during the events that gave rise to the
grievance; (5) ensure that within 1 year from the date of the award the
second-line supervisor is given or will take a class in "'Sensitivity
Training' concerning Human Relations"; and (6) "not in any way use this
incident or the facts of this Case in its future evaluations, and
Performance Appraisals of (the grievant)." /1/ Award at 20-21.
For the following reasons, we conclude that the award is deficient in
part and, therefore, must be modified. Accordingly, we will modify the
award to set aside that portion of the award requiring the Agency to
give the grievant a copy of the letter of reprimand issued to the
second-line supervisor.
II. Background and Arbitrator's Award
The grievant is a correctional officer. On January 6, 1989, the
grievant was working the day shift (first shift) from 7:30 a.m. to 4:00
p.m. At 4:10 p.m., the grievant contacted a second-line supervisor
assigned to the later shift and requested to be relieved from his post.
The grievant explained to the second-line supervisor that he needed to
take medication and eat a special meal. The second-line supervisor
denied the request. Id. at 6.
At approximately 4:15 p.m., the grievant went to the second-line
supervisor's office and again requested to be relieved from his post so
that he could return home to take medication and eat a special meal.
The second-line supervisor informed the grievant that he would have to
wait until his relief arrived on the Airlift Bus, which was late and due
to arrive at 8:00 p.m. After the second-line supervisor made some
disparaging remarks about occupations which did not require employees to
remain at their posts until they were relieved from duty and stated that
the grievant "should be working at such places(,)" the grievant told the
second-line supervisor that "(h)e was leaving(.)" Id. The second-line
supervisor responded that "if (the grievant) left (h)e would surely
write (the grievant) up." Id. The grievant then returned to his post.
At 5:00 p.m., another supervisor, Lieutenant Walter Clark, visited
the grievant's area. The grievant informed Clark that he was not
feeling well and that he had failed to take his medication at 4:30 p.m.
Clark and the second-line supervisor visited the grievant's post several
more times. During on visit by the second-line supervisor, the grievant
was not standing in the corridor as required and the second-line
supervisor questioned the grievant about this. The grievant "informed
the (second-line supervisor) that (h)e did not feel like standing out
there." Id. at 7.
At 6:30 p.m., the grievant returned to the supervisors' office and
stated that "(h)e had to go home" and again indicated that he needed to
take his medication. Id. The second-line supervisor reiterated that
the grievant could go home when the Airlift Bus arrived. Thereafter,
the grievant returned to his post. At 7:00 p.m., the second-line
supervisor returned to the grievant's area and informed the grievant
that he had written him up and had recommended, as a disciplinary
action, that the grievant be suspended.
At 8:00 p.m., the grievant collapsed in the corridor and "became
totally incapacitated." Id. The grievant received medical treatment
and, when he was revived, informed an Agency physician's assistant that
"(h)e was a (d)iabetic and had not eaten (l)unch(,)" before again
becoming unconscious. Id. at 8. After failing to respond to further
treatment, the grievant was transferred to a community hospital where he
remained until the next morning. The grievant requested and received
sick leave for his subsequent absences on January 7 and 8.
The Union filed a grievance over the events that took place on
January 6, 1989. The grievance was unresolved and was subsequently
submitted to arbitration. The Arbitrator determined that the issues
before him were:
1. Was (the grievant d)iabetic, and thus ha(d) a medical
concern?
2. Was (the grievant) harassed, intimidated, restrained,
coerced, threat(e)ned, and/or were acts of reprial demonstrated
against him by (the second-line supervisor)?
3. Did the (Agency) violate Article 18, (s)pecifically Section
B-Assignment and Hours Of Work?
4. Was (the grievant) correctly given "Sick Leave" for his
absences on January 7 and January 8, 1989?
5. Was the testimony and evidence as presented by the
witnesses creditable?
Id. at 9.
To remedy the Agency's alleged contract violations, the Union
requested: (1) "(a) written apology from (the second-line supervisor)"
and (2) that the 2 days of sick leave used by the grievant "be
reinstated to (h)im." Id.
Based on the testimony and evidence presented to him, the Arbitrator
concluded that: (1) the grievant "was a (d)iabetic on the evening of
January 6, 1989 and did have a medical concern"; (2) the grievant "was
harassed, intimidated, restrained, coerced, threat(e)ned, and acts of
reprisal were demonstrated against him by (the second-line supervisor)"
and, therefore, the Agency "violated Article 6, Rights of the
Employee-Section b, of the Master Agreement"; (3) the Agency "violated
Article 18, Assignment and Hours of Work, specifically Section B (Old
Master Agreement)"; (4) the grievant "was correctly given 'Sick Leave'
for his absences on January 7, and 8, 1989 and ( ) is not entitled to
additional sick leave credits as a result of this incident"; and (5)
the second-line supervisor's testimony was not creditable. Id. at 14,
19, 20 (emphasis in original).
As a remedy, the Arbitrator directed the Agency to: (1) "prepare a
'Letter Of Reprimand' to (the second-line supervisor) citing (h)im with
failure to look after the medical concerns of (the grievant) on the
evening of January 6, 1989"; (2) give a copy of the letter of reprimand
to the second-line supervisor and place a copy "in (h)is Personnel File
for a period of one (1) year after which time it shall be detroyed";
(3) give a "(c)opy of the Letter Of Reprimand . . . to (the grievant)
for his personal file"; (4) express, in writing, "(the Agency's)
apologies to (the grievant) for the lack of concern exhibited to (the
grievant) and his medical concern on the evening of January 6, 1989";
and (5) "during the course of one year from the date of this Award
insure that (the second-line supervisor) be given or take a class in
'Sensitivity Training' concerning Human Relations." Id. at 20, 21.
III. Exceptions
The Agency excepts "to the remedies which the (A)rbitrator order(
ed)" and, therefore, contends that the award must be set aside.
Exceptions at 4.
As to the portions of the remedy requiring the Agency to take action
against the second-line supervisor, the Agency argues that "(t)he
Statute does not give arbitrators remedial authority which extends to
dictating that specific personnel action be taken either for or against
specific employees outside the unit so as to specify a particular change
in their conditions of employment." Id. at 5. The Agency asserts that,
at a minimum, "the Statute must . . . be read as precluding parties from
giving an arbitrator remedial authority to order personnel actions to be
taken which directly affect individual supervisors or managers." Id.
The Agency further contends that the second-line supervisor is not an
"employee" within the meaning of section 7103(a)(2) or 7103(a)(9) of the
Statute and "(t)herefore, the (A)rbitrator clearly ha(d) no authority
under section 7121 of the Statute or the Back Pay Act to issue a remedy
which singles out a particular supervisor and(/)or manager alleged to be
responsible for the (A)gency action (or omission) and issue a remedy
which penalizes that supervisor or manager as distinguished from the
(A)gency itself." Id. at 7. To support its argument that "Congress
could not have intended to empower agency management to voluntarily
agree to binding contractual provisions whereby the Agency promises to
discipline any supervisor found to have violated another substantive
agre(e)ment provision(,)" the Agency cites cases finding that proposals
requiring agencies to discipline supervisors were nonnegotiable because
the proposals were "unrelated to the conditions of employment of
bargaining unit employees(.)" Exceptions at 10, citing National
Federation of Federal Employees, Local 1430 and Department of the Navy,
Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA
45 (1984) and National Association of Government Employees, Local R7-23
and Headquarters, 375th Air Base Group, Scott Air Force Base, Illinois,
7 FLRA 110 (1982).
With respect to the letter of reprimand, the Agency argues that even
though the word "employee" is present in section 7106(a)(2)(A), relating
to management's right to discipline, "it is unlikely that this stylistic
difference was intended to be significant with regard to permit(t)ing
agency managers to limit their discretion with regard to making the
decisions . . . as they would apply to supervisors." Id. at 10.
According to the Agency, any other interpretation of the Statute would
"be inconsistent with section 7112(b)(1)" and, "where the discipline
concerned exceeded a written reprimand, it would also be inconsistent
with management's general disciplinary authority under 5 U.S.C. sections
7503 and 7512-13." Id. Further, the Agency asserts that the portion of
the Arbitrator's remedy that requires the Agency to issue the
second-line supervisor a reprimand violates 5 C.F.R. Section 735.107.
The Agency also claims that by requiring that a copy of the
second-line supervisor's reprimand "be personally given to" the
grievant, the remedy is illegal because it violates provisions of the
Freedom of Information and Privacy Acts. Id. at 15. The Agency cites
FLRA v. U.S. Department of the Treasury, Financial Management Service,
884 F.2d 1446 (D.C. Cir. 1989) and asserts that "(t)he reasoning which
the (c)ourt employed in that case(, regarding the disclosure of names
and home addresses of bargaining unit employees to Federal unions,) is
equally applicable with regard to the release of copies of adverse
actions, particularly where, as here, deleting personal information
would not be sufficient to protect the privacy interest of (the
second-line supervisor)." Id.
The Agency argues that the portion of the Arbitrator's remedy
requiring that the second-line supervisor be given or take a class in
"'Sensitivity Training' concerning Human Relations" violates
management's rights. The Agency asserts that "an award which requre(s)
management to assign training to supervisors violate(s) management's
right to assign work reserved by section 7106(a)(2)(B) of the Statute."
Id. at 9.
As to both the letter of reprimand and the sensitivity training, the
Agency claims that the Arbitrator exceeded his authority because
"neither the issues which he defined as before him for adjudication, or
the remedies asserted as appropriate by the Union empowered him under
the parties' agreement to remedy violations of the substantive contract
provisions in question by means of ordering management to discipline the
individual supervisor responsible for those violations." Id. at 16. In
support of its argument, the Agency cites U.S. Department of Housing and
Urban Development and American Federation of Government Employees, Local
No. 3412, 24 FLRA 442, 445 (1986) (AFGE); and Environmental Protection
Agency, Region 9 and Engineers and Scientists of California, MEBA,
AFL-CIO, 17 FLRA 365, 366 (1985) (EPA). Further, the Agency claims that
the Arbitrator either: (1) "exceeded his authority in an even broader
manner in that the entire remedy is clearly punitive, yet there is no
provision in the parties' agreement which authorizes punitive . . .
awards(,)" or (2) "rendered an award which does not, with the respect to
the remedy, derive its essence from the agreement" because the remedy is
punitive in nature and is not authorized by the parties' agreement. Id.
at 16, 17, citing International Association of Heat and Frost Insulators
and Asbestos Workers, Local Union 34, AFL-CIO v. General Pipe Covering,
Inc., 792 F.2d 96 (8th Cir. 1986) (General Pipe Covering).
The Agency also argues that even assuming that the Arbitrator had the
power "in theory" to issue remedies requiring management to take
personnel actions against specific supervisors or managers, "the
specific remedies ordered here are illegal because they violate . . .
the Statute . . . and, thus, could never have been contractually
authorized by the parties(.)" Id. at 14.
As to the letter of reprimand and the written apology, the Agency
argues that "the Authority is precluded from issuing punitive remedies"
and that, therefore, "Congress could not have intended arbitrators
exercising jurisdiction under section 7121(a) to have any greater
remedial powers than the Authority(.)" Id. at 8, citing NLRB v.
Haberman Construction Co., 641 F.2d 351, 361-62 (5th Cir. 1981).
Accordingly, the Agency concludes that the grievant "was not, and,
indeed, clearly could not have been, entitled under the parties'
agreement to the revenge of having the supervisor responsible for the
alleged violation disciplined or to a written 'apology' from the
Institution." Id. at 8-9.
Further, with respect to the written apology, the Agency notes that
the Union asked for the apology "to come from (the second-line
supervisor), not the Institution" and that in a previous arbitration
case where the "(u)nion had specifically sought an apology from
responsible management officials as a remedy, the (a)rbitrator found he
lacked authority . . . 'to impose discipline.'" Id. at 12-13, 14,
quoting Veterans Administration Medical Center, 81 LA 213, 214 (1983).
The Agency also notes that its argument that the Arbitrator either
exceeded his authority or rendered an award which does not derive its
essence from the agreement encompasses the portion of the award
requiring a written apology from the Agency. Id. at 17.
IV. Analysis and Conclusions
For the following reasons, we find that the award is deficient to the
extent that it requires the Agency to provide the grievant with a copy
of the letter of reprimand issued to the second-line supervisor.
Accordingly, we will modify that portion of the award.
1. Written Apology
The Agency argues that the portion of the award requiring it to
apologize to the grievant in writing is deficient because the
Arbitrator: (1) issued a remedy that is inconsistent with another
arbitrator's decision; (2) exceeded his authority by issuing a
"punitive" remedy; and (3) rendered an award that does not derive its
essence from the parties' agreement. Exceptions at 14, 16-17.
We reject the Agency's reliance on the award of another arbitrator.
Arbitration awards are not precedential and, therefore, a contention
that an award conflicts with other arbitration awards provides no basis
for finding an award deficient under the Statute. See, for example,
Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma
and National Association of Government Employees, Local R8-17, 34 FLRA
691, 695 (1990); and Veterans Administration Medical Center and
American Federation of Government Employees, Local 2386, AFL-CIO, 34
FLRA 666, 669 (1990).
We also reject the Agency's argument that the Arbitrator exceeded his
authority by issuing a "punitive" remedy. The Agency does not define
what it means by a "punitive" remedy. It is well-settled that an
arbitrator exceeds his or her authority by resolving an issue not
submitted to arbitration or awarding relief to persons not encompassed
within the grievance. See, for example, U.S. Department of the Navy,
Naval Aviation Depot, Norfolk, Virginia and International Association of
Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990)
(U.S. Department of the Navy). Moreover, an arbitrator is precluded
from awarding punitive damages against the Federal Government. Veterans
Administration Medical Center, Cleveland, Ohio and American Federation
of Government Employees, Local No. 31, 19 FLRA 242, 243 (1985). As
arbitrators have great latitude in fashioning remedies, U.S. Department
of Housing and Urban Development, Los Angeles Area Office, Region IX,
Los Angeles, California and American Federation of Government Employees,
Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990) (HUD), we find that
characterizing a remedy as "punitive" does not establish an independent
basis for finding an award deficient.
We also find that the portion of the remedy requiring the Agency to
issue a written apology to the grievant was responsive to the issues
framed by the Arbitrator and was within the Arbitrator's authority to
award to the grievant. Two of the issues before the Arbitrator were:
(1) whether the grievant was "harassed, intimidated, restrained,
coerced, threat(e)ned, and/or (whether there) were acts of reprisal
demonstrated against him by (the second-line supervisor)?"; and (2)
whether "the (Agency) violate(d) Article 18, (s)pecifically Section
B-Assignment and Hours Of Work?" Award at 9. As the conduct of the
Agency and its officials was directly at issue in this case, we find
that the Arbitrator did not exceed his authority when he ordered the
Agency to issue a written apology to the grievant based on his finding
of improper conduct. See U.S. Department of the Navy.
Finally, we reject the Agency's assertion that this portion of the
remedy fails to draw its essence from the parties' agreement. For an
award to be found deficient because it fails to 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 the purpose of the agreement as to
manifest an infidelity to the obligation of the arbitrator; or (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. 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) (Ogden Air Logistics
Center).
The Agency has failed to demonstrate that the portion of the remedy
requiring a written apology from the Agency is deficient under any of
the tests set forth above. As we noted above, arbitrators have great
latitude in fashioning remedies, HUD, and the Authority has previously
permitted an arbitrator to order a party to apologize as part of the
remedy, Department of Health and Human Services, Social Security
Administration, Jersey City, New Jersey and American Federation of
Government Employees, AFL-CIO, Local 2369, 27 FLRA 104 (1987). General
Pipe Covering, cited by the Agency, is inapposite because this case does
not require the Agency to pay punitive damages.
Accordingly, we find that the Agency is merely disagreeing with the
Arbitrator's interpretation of the parties' agreement and with how the
Arbitrator fashioned the remedy. Such disagreement does not establish
that the award fails to draw its essence from the collective bargaining
agreement and provides no basis for finding the award deficient. See
U.S. Department of Defense, Defense Mapping Agency Aerospace Center, St.
Louis, Missouri and National Federation of Federal Employees, Local
1827, 35 FLRA 1307, 1309-10 (1990); and Air Force Space Division, Los
Angeles Air Force Station, California and American Federation of
Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 519-20 (1986).
2. Letter of Reprimand
As part of the remedy, the Arbitrator ordered the Agency to "prepare
a 'Letter Of Reprimand' to (the second-line supervisor) citing (h)im
with failure to look after the medical concerns of (the grievant), on
the evening of January 6, 1989" and give a copy of the letter of
reprimand to the grievant "for his personal file." Award at 20.
a. Issuance of Letter of Reprimand
The Agency argues that ordering the Agency to issue a letter of
reprimand to a supervisor is improper because it: (1) violates 5 C.F.
R. Section 735.107; (2) is inconsistent with management's general
disciplinary authority under 5 U.S.C. Sections 7503 and 7512-13, where
the discipline concerned exceeds a written reprimand; (3) is
inconsistent with management's right to discipline under section 7106(
a)(2)(A) of the Statute; and (4) is contrary to other provisions of the
Statute. The Agency also argues that the Arbitrator: (1) exceeded his
authority by issuing a "punitive" award; (2) exceeded his authority
because the issues he framed and the remedies requested by the Union did
not empower him to order management to discipline the second-line
supervisor; and (3) rendered an award that does not derive its essence
from the parties' agreement.
We reject the Agency's claim that ordering it to issue a letter of
reprimand to a supervisor violates 5 C.F.R. Section 735.107. Under 5
C.F.R. Section 735.107, an agency has the right to discipline its
employees, including supervisors, for violations of agency regulations.
There has been no showing that the second-line supervisor violated
Agency regulations. Therefore, 5 C.F.R. Section 735.107 does not apply,
and we reject the Agency's claim that this remedy is contrary to that
regulation.
We also reject the Agency's argument that the remedy is inconsistent
with management's general disciplinary authority under 5 U.S.C.
Sections 7503 and 7512-13. We note that 5 U.S.C. Sections 7503, 7512,
and 7513 specify the disciplinary actions that an agency may take
against its employees, including supervisors, such as suspending them
for 14 days or less, suspending them for more than 14 days, removing
them, reducing their grades or pay, and instituting furloughs of 30 days
or less. However, those sections do not apply to written reprimands
and, therefore, the Agency's reliance on them is misplaced.
Moreover, in our view, requiring the Agency to issue a letter of
reprimand to a supervisor does not directly interfere with management's
right to discipline employees under section 7106(a)(2)(A) of the Statute
because, as acknowledged by the Agency, that right applies only to
"employees" and section 7103(a)(2) of the Statute expressly excludes
supervisors from the definition of "employee."
Further, we reject the Agency's argument that the remedy is
inconsistent with the Statute because the Statute precludes: (1)
arbitrators from awarding remedies that adversely affect nonunit
employees; or (2) parties from contractually empowering agencies to
agree to discipline any supervisor found to have violated another
agreement provision. Exceptions at 5, 9, 10, 14.
We note that the Agency argues that under section 7103(a)(9)(C) and
(a)(12) of the Statute,
arbitrators who find that employers have violated the term of a()
negotiated agreement so as to adversely affect the conditions of
employment of unit employees are empowered under section 7121 of
the Statute to do no more than construct remedies which correct
the effects of such violations on those conditions of employment.
Exceptions at 6 (emphasis in original). However, a matter may concern
the conditions of employment of unit employees even though it also
affects nonunit employees or positions. See American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 33 FLRA 335 (1988) (OPM), enforced sub nom. United States
Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990).
The Arbitrator found, in part, that the Agency violated "Article 6,
Rights of the Employee-Section b, of the Master Agreement" by
threatening and harassing the grievant. Award at 14. We find that the
Arbitrator's remedy in this case was designed to correct the effects of
the Agency's violation of the parties' collective bargaining agreement
on the grievant's conditions of employment. Having found that the
grievant was harmed by the Agency's violation of the parties' collective
bargaining agreement, the Arbitrator properly fashioned a remedy
designed to correct the effects of that violation.
We also find that in arguing that the Statute prohibits the
Arbitrator from awarding this remedy, the Agency improperly relied on
negotiability cases that focused only on the effects proposals had on
the conditions of employment of nonunit employees. We have reexamined
the issues raised in those cases. Now, in determining the negotiability
of a proposal that affects both unit and non-unit employees or
positions, we do not consider the effect of the proposal on nonunit
employees or positions. Rather, we look at whether the matter vitally
affects the working conditions of unit employees. See OPM, 33 FLRA at
337-38. In short, the fact that a proposal affects persons outside the
unit does not in and of itself render that proposal nonnegotiable.
Accordingly, we reject the Agency's argument that the Statute precludes
arbitrators from awarding remedies that benefit or adversely affect
nonunit employees.
We have already noted that the conduct of the second-line supervisor
was expressly at issue in this case and that the remedies addressed the
effects of the supervisor's conduct on the grievant's conditions of
employment. As the Arbitrator is authorized by section 7121 of the
Statute to award remedies affecting unit employees' conditions of
employment and as the Agency has failed to establish that this remedy is
unlawful, we reject the Agency's argument that the Statute prohibits
this remedy.
We also note the Agency's argument that even if the parties'
agreement gave arbitrators the remedial authority to require that
management take personnel actions against specific supervisors, "the
Statute must be read as precluding parties from contractually empowering
arbitrators to do so." Exceptions at 9. The Agency appears to be
addressing whether a provision of the parties' agreement that provided
for the remedy in this case could lawfully have been negotiated. We
note at the outset that the Agency has provided no support for the
conclusion that an arbitration remedy must be based on a specific
provision of the contract. Moreover, even if an arbitration remedy did
have to be based on a specific contract provision, nothing in the
Agency's argument indicates that the Arbitrator was precluded by the
Statute from granting this remedy in the circumstances before him or
that such a provision would not be within the range of matters that can
be bargained. Even if a contractual provision requiring management to
take personnel actions against specific supervisors would be found, in a
negotiability context, to directly or excessively interfere with a
management right, that fact would not necessarily preclude the same type
of provision from being found to be an enforceable arrangement in an
arbitration context. See Department of the Treasury, U.S. Customs
Service and National Treasury Employees Union, 37 FLRA 309 (1990)
(Customs Service). The Agency has cited no section of the Statute
precluding parties from negotiating such a provision, and none is
apparent to us. Accordingly, in the context of this arbitration case,
we reject the Agency's argument in this regard.
Section 7122(a) of the Statute provides that the Authority may find
an arbitration award deficient if it is contrary to any law, rule, or
regulation. The Agency has cited no law, rule, or regulation
prohibiting an arbitrator from requiring an agency to issue a letter of
reprimand to a supervisor, and none is otherwise apparent to us.
Accordingly, we conclude that the Agency has failed to establish that
requiring it to issue a letter of reprimand to the second-line
supervisor is contrary to law, rule, or regulation. See Veterans
Administration Hospital, Fort Howard, Maryland and Maryland Nurses
Association, Fort Howard Chapter, 11 FLRA 10, 11 (1983) (the Authority
found that the agency "fail(ed) to establish" that an arbitration award
ordering the agency to admonish a supervisor was "contrary to any
governing law or regulation that may be concerned with the right of an
agency to discipline agency personnel, in general").
We also reject the Agency's argument that the Arbitrator exceeded his
authority by issuing a "punitive" remedy that applies to a nonunit
employee. We note that the Agency cites AFGE and EPA to support its
assertion that the Arbitrator's remedies are improper because "nowhere
in the description of the issues is there any claim that any provision
of the parties' agreement calls for, or authorizes an arbitrator to
order, disciplinary action be taken against . . . the supervisor who is
found to have violated the agreement." Agency's Brief at 12. Those
cases are distinguishable because they involved orders that provided
remedies for matters or personnel beyond the scope of the issues
submitted to arbitration. In this case, however, the Arbitrator had
before him the conduct of the nonunit employee. As noted previously,
two of the issues before the Arbitrator in this case were: (1) whether
the grievant was "harassed, intimidated, restrained, coerced, threat(e)
ned, and/or (whether there) were acts of reprisal demonstrated against
him by (the second-line supervisor)?"; and (2) whether "the (Agency)
violate(d) Article 18, (s)pecifically Section B-Assignment and Hours Of
Work?" Award at 9. The remedy requiring that the second-line supervisor
be issued a letter of reprimand directly addresses the harm that the
supervisor's improper conduct caused the grievant. Moreover, as stated
previously, the Agency's characterization of the award as "punitive"
provides no independent basis for finding the award deficient.
To the extent that the Agency disagrees with the Arbitrator's
formulation of the issues, such disagreement provides no basis for
finding the award deficient. See, for example, U.S. Department of
Commerce, National Oceanic and Atmospheric Administration, National
Weather Service and National Weather Service Employees Organization, 36
FLRA 352, 362-63 (1990); and Department of Health and Human Services,
Social Security Administration, Birmingham, Alabama and American
Federation of Government Employees, Local 2206, 35 FLRA 830, 832-33
(1990). Further, as arbitrators have great latitude in fashioning
remedies, the fact that this remedy was not requested by the Union
provides no basis for setting it aside.
Finally, we reject the Agency's contention that this portion of the
award fails to draw its essence from the parties' agreement. The Agency
has not established that the portion of the remedy requiring the
second-line supervisor to be issued a letter of reprimand is deficient
under any of the tests set forth in Ogden Air Logistics Center. Rather,
the Agency merely asserts that the Arbitrator "rendered an award which
does not, with respect to the remedy, derive its essence from the
agreement" because "(t)here are no such provisions in (its) agreement
with the Union, nor does the Arbitrator refer to any provision as giving
him the contractual authority to issue punitive remedies." Exceptions at
16-17. As noted previously, the Arbitrator found, in part, that the
Agency "violated Article 6, Rights of the Employee-Section b, of the
Master Agreement" by threatening and harassing the grievant. Award at
14. To the extent that the parties' agreement is silent on the remedy
for such a fiolation, we have no basis on which to conclude that,
consistent with the tests set forth in Ogden Air Logistics Center, the
Arbitrator's remedy and interpretation of the agreement are not
plausible or rational. See Ogden Air Logistics Center, 35 FLRA at 1271.
We have already noted that the fact that the Agency characterizes a
remedy as "punitive" provides no basis by itself for setting aside the
award. We also note that an arbitrator need not discuss the specific
provisions of the agreement involved in a case. See, for example,
American Federation of Government Employees, Local 3529 and U.S.
Department of Defense, Defense Contract Audit Agency, 35 FLRA 1108, 1113
(1990). Accordingly, we find that the Agency's assertions constitute
mere disagreement with the Arbitrator's interpretation and application
of the parties' agreement and provide no basis for finding the award
deficient. See, for example, U.S. Department of the Air Force, Ogden
Air Logistics Center, Hill Air Force Base, Utah and American Federation
of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990); and
U.S. Department of Health and Human Services, Social Security
Administration, Region VI, Dallas, Texas and American Federation of
Government Employees, Local 1336, 35 FLRA 1218, 1223 (1990).
b. Provision of Letter of Reprimand to Grievant
As part of the remedy, the Arbitrator ordered the Agency to give a
copy of the letter of reprimand to the grievant for his personal files.
The Agency claims that by requiring that a copy of the second-line
supervisor's letter of reprimand "be personally given to" the grievant,
the remedy is contrary to law because it violates provisions of the
Freedom of Information and Privacy Acts. Exceptions at 15.
The Privacy Act, 5 U.S.C. Section 552a, states, in part, that no
agency shall disclose any record which is contained in a system of
records without the prior written consent of the individual to whom the
record pertains. Exemption (b)(2) to the Privacy Act provides that such
information may be disclosed when disclosure would be required under 5
U.S.C. Section 552, the Freedom of Information Act (FOIA). In this
case, the Arbitrator ordered the Agency to give the grievant a copy of
the second-line supervisor's letter of reprimand. As there is no
indication that the supervisor has consented to this disclosure of his
personnel record, we must determine whether its disclosure would be
required under FOIA. Exemption (b)(6) to FOIA authorizes withholding
information in "personnel and medical files the disclosure of which
would constitute a clearly unwarranted invasion of privacy." 5 U.S.C.
Section 552(b)(6). Therefore, if releasing the letter of reprimand to
the grievant would constitute a clearly unwarranted invasion of privacy,
FOIA does not require it to be released. 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).
A letter of reprimand is information contained in an employee's
personnel record and an employee has a privacy interest in not having
such a disciplinary action disclosed. See National Treasury Employees
Union, Chapter 237 and U.S. Department of Agriculture, Food and
Nutrition Service, Midwest Region, 32 FLRA 62, 71 (1988) (Provisions 9
and 10). We note that the Union in this case did not file an opposition
to the Agency's exceptions and, thus, did not indicate what, if any,
interest it, the grievant, or the public had in the disclosure of the
letter of reprimand. While there is an interest in having the Agency
comply with the remedy to reprimand the second-line supervisor, we find
that there is no asserted or apparent interest in the grievant
possessing a copy of the reprimand itself. We conclude, therefore, that
in the circumstances of this case, releasing the second-line
supervisor's letter of reprimand to the grievant would constitute a
clearly unwarranted invasion of privacy. Accordingly, we will set aside
that portion of the award requiring the Agency to provide the grievant
with a copy of the letter of reprimand issued to the second-line
supervisor.
3. Sensitivity Training
As part of the remedy, the Arbitrator required the Agency to ensure
that within 1 year from the date of the award, the second-line
supervisor is given or will take a class in "'Sensitivity Training'
concerning Human Relations." Arbitrator's Award at 21. The Agency
argues that this portion of the award is deficient because: (1) it
interferes with management's right to assign work under section 7106(
a)(2)(B) of the Statute; (2) the Arbitrator exceeded his authority by
issuing a "punitive" remedy that applies to a nonunit employee; (3) the
Arbitrator issued an award which does not draw its essence from the
parties' agreement; or (4) such a remedy violates the Statute and could
never have been contractually authorized. Exceptions at 5, 9, 12-17.
When an agency contends that an arbitrator's award enforcing a
provision of the parties' collective bargaining agreement is contrary to
section 7106(a), we will examine the provision enforced by the
arbitrator to determine: (1) if it constitutes an arrangement for
employees adversely affected by the exercise of management's rights;
and (2) if, as interpreted by the arbitrator, it abrogates the exercise
of a management right. Customs Service, 37 FLRA at 313-314.
In this case, the Arbitrator found that the Agency, through the
actions of the second-line supervisor, violated Article 6, Rights of the
Employee-Section b of the parties' agreement by failing to give proper
attention to the grievant's medical concern. /2/ In this regard, the
Arbitrator noted that the grievant endeavored to bring his medical
concern to the attention of the second-line supervisor, stating that he
"just wanted to get his medication and eat a diet meal." Id. at 11-12.
Further, the Arbitrator found that the supervisor: (1) "did indeed by
his actions harass, intimidate, restrain, coerce, threat(en), and/or
demonstrate() acts of reprisal against (the grievant) because of his
medical concern"; and (2) "was not sensitive to a (s)ubordinate's
medical concern, and placed (h)is own fear of probabilistic action by
inmates above that of a realistic, real life situation and the immediate
needs of (the grievant)." Id. at 13.
Article 6, Section b preserves an employee's right to bring "matters
of personal concern" to management's attention. As interpreted by the
Arbitrator, such matters include matters relating to an employee's
health. This case illustrates the adverse effects on an employee when
the matter of personal concern is a potentially life-threatening
condition arising at the workplace. The provision attempts to
ameliorate the adverse effects and to bring employees' concerns to
management's attention so that management may take appropriate action.
Therefore, we find that the provision constitutes an arrangment for
employees adversely affected when management exercises its rights
without considering "matters of personal concern" to an employee.
Moreover, it appears from the Arbitrator's award that the required
sensitivity training is intended to teach the supervisor how to better
interact with employees and better understand their needs and concerns.
See Award at 19. As the Arbitrator is ordering the second-line
supervisor to take a class that will teach him to pay more attention to
"matters of personal concern" to employees, the Arbitrator's award
clearly constitutes an enforcement of Article 6, Section b of the
parties' agreement.
We conclude that the Arbitrator's enforcement of Article 6, Section b
does not abrogate the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. In this regard, we note that the
requirement of sensitivity training does not prevent the Agency from
making training determinations as to other employees and preserves the
Agency's ability to determine matters including when and where the
supervisor's sensitivity training is to take place, as well as its
specific content and duration.
Accordingly, we reject the Agency's contention that the award is
deficient because it interferes with management's right to assign work.
Furthermore, for the reasons stated in part IV., section 2.a. of this
decision, we reject the Agency's arguments that: (1) the Arbitrator
exceeded his authority by issuing a "punitive" remedy that applies to a
nonunit employee; (2) the Arbitrator issued an award which does not
draw its essence from the parties' agreement; or (3) such a remedy
violates the Statute and could never have been contractually authorized.
V. Decision
The award is modified to delete the following sentence from the
award: "A Copy of the Letter Of Reprimand shall be personally given to
(the grievant) for his personal file."
FOOTNOTES
(1) As the Agency did not specifically except to the portion of the
remedy ordering that it not use this incident or the facts of this case
in its future evaluations and performance appraisals of the grievant, we
will not address that portion of the award.
(2) Article 6, Rights of the Employee-Section b states as follows:
"Each employee shall have the right to bring matters of personal concern
to the attention of appropriate management officials." Arbitrator's
Award at 14.
39 FLRA 1282
39 FLRA NO. 113
Ogden Air Logistics Center, Hill Air Force Base, Utah and AFGE, Local
1592 (Brand, Arbitrator), Case No. 0-AR-2003 (Decided March 20, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
SUSPENSION
REDUCTION IN LENGTH
BACK PAY ACT
FAILS TO DRAW ESSENCE
DIGEST NOTES
The Arbitrator concluded that the Agency's 14-day suspension of the
grievant was not taken for just cause and in accordance with established
procedures, and reduced the suspension to 1 day and ordered that, in
accordance with the Back Pay Act, the grievant be made whole for the
additional suspension he served. The Authority construed the exception
as an allegation that the award failed to draw its essence from the
agreemen and concluded that the Agency had not demonstrated that the
Arbitrator's interpretation of the agreement rendered the award
deficient under any of the tests set forth by the Authority.
Case No. 0-AR-2003
OGDEN AIR LOGISTICS CENTER HILL AIR FORCE BASE, UTAH
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 1592
(Union)
DECISION
March 20, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Norman Brand 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 concluded that the Agency's 14-day suspension of the
grievant was not taken for just cause and in accordance with established
procedures. The Arbitrator reduced the suspension to 1 day and ordered
that, in accordance with the Back Pay Act, the grievant be made whole
for the additional suspension he served.
For the following reasons, we conclude that the Agency's exceptions
provide no basis for finding the award deficient. Consequently, we will
deny the exceptions.
II. Background
In 1984, the grievant was convicted of Driving Under the Influence
(DUI). On November 23, 1988, the grievant was again arrested for DUI.
On December 21, 1988, the grievant told his second-line supervisor that
he had been cited for DUI and would have to go to jail for 3 days. On
December 23, 1988, the grievant was convicted of DUI and his license was
revoked for 1 year. The grievant's immediate supervisor prepared a memo
on January 13, 1989, noting that about 50% of the grievant's work
required a valid driver's license and could not be acceptably performed
without one.
After serving a 3-day jail sentence in January 1989, the grievant
returned to work. Upon his return to work, he told his immediate
supervisor that his license had been revoked for 1 year. On January 18,
1989, the grievant's immediate supervisor detailed the grievant to a
different position for 4 months "or until his license (was) reinstated."
Award at 4. Subsequently, the grievant's immediate supervisor returned
to bargaining unit work and the grievant came under the supervision of
an individual named Duersch.
In late April 1989, shortly before the end of the detail, Duersch
asked the grievant about the status of his license. The grievant told
Duersch that he had to take an expensive course before he could get his
license back. Duersch arranged for him to take the course for free on
the base. Duersch told the grievant that if he did not have his
license, his detail would have to be extended. The grievant refused to
accept a detail. As a result of this refusal, on June 6, 1989, Duersch
gave the grievant an "out of cycle 'Unacceptable' performance rating."
Id. at 5. The basis for the "unacceptable" rating was the fact that the
grievant did not have a driver's license and was not going to extend his
detail and, therefore, could not perform his job duties that required
driving a vehicle.
The next day, the greivant and his union representative met with
Duersch to discuss the performance appraisal. After some discussion,
the union representative indicated that the grievant would accept a
detail. Duersch stated that he could not tell whether another detail
would be offered.
In the interim, on May 26, 1989 the grievant had left his duties for
1 and 1/4 hours. Duersch charged him with AWOL and proposed
reprimanding him. On June 14, 1989, Duersch attempted to give the
grievant the proposed letter of reprimand but the grievant refused to
sign for his copies. When Duersch informed him that his detail would
not be extended, the grievant threatened Duersch. Duersch reported this
threat to his superiors and, on July 5, 1989, amended the proposed
reprimand to a 1-day suspension based on the threatening remark.
Duersch called the state division of drivers' licenses to find out
why the grievant's license had not been reistated after he had taken the
required course. He was informed that the grievant's license had been
revoked for a 1-year period. Thereafter, the Security Police obtained a
copy of the grievant's conviction record and the license revocation
letters. The grievant's base driving privileges were suspended, and he
was issued another amendment to the July 5 amended discipline, proposing
that the grievant be removed from his position based on off-duty
misconduct that rendered him unable to perform his job responsibilities.
The disciplinary proposal was timely grieved and the removal decision
was initially sustained. Thereafter, the grievant was given a job that
did not require a driver's license and the removal was reduced to a
14-day suspension, which was served in November 1989. The issue of the
propriety of the suspension was submitted to arbitration.
III. Arbitrator's Award
The parties stipulated the issue as follows: "Was the 14 day
suspension of (the grievant) taken for just cause and in accordance with
established procedures? If not what is the remedy?" Arbitrator's Award
at 3.
The Arbitrator stated that "Section 5.02 of the contract requires the
Agency to propose disciplinary action within 45 days of knowing of the
offense upon which the discipline is based." Id. at 8 (footnote
omitted). The Arbitrator concluded that the Agency knew that the
grievant's license had been revoked for a year by June 7, 1989, at the
latest, more than 45 days before its proposal to remove him. The
Arbitrator discussed the testimony of the witnesses and determined that
the only conclusion consistent with the evidence was that Duersch, and,
therefore, the Agency, knew by June 7, 1989, that the grievant had lost
his license for a year.
Having found that the Agency knew of the 1-year revocation of
grievant's license by June 7, 1989, the Arbitrator concluded that the
Agency violated Section 5.02 of the contract when it disciplined the
grievant for off-duty misconduct more than 45 days later. Therefore,
the Arbitrator concluded that the charges included in the amendment to
the July 5 proposed discipline cannot be part of the just cause for a
14-day suspension. The Arbitrator found that the other charges
justified only the 1-day suspension originally proposed by the Agency.
As his award, the Arbitrator concluded that the 14-day suspension of
the grievant was not taken for just cause and in accordance with
established procedures. The Arbitrator found that there was just cause
for a 1-day suspension of the grievant that was based on the grievant's
reprimand and AWOL. The Arbitrator ordered that the grievant's 14-day
suspension be reduced to 1 day and that the grievant be made whole for
the additional suspension he served, in accordance with the Back Pay
Act. Id.
IV. Positions of the Parties
A. The Agency
The Agency argues that the Arbitrator erred in his discussion of the
issue by looking only to facts and evidence that would establish when
the Agency first learned of the 1-year revocation of the employee's
license. The Agency argues that the Arbitrator failed to consider the
provisions of Section 5.02 provides that discipline shall be taken
"within 45 calendar days of the offense, the employer's awareness of the
offense, or the completion of an investigation of the matter by other
than the supervisor, whichever occurs later(.)" Exceptions at 2
(emphasis in original).
The Agency argues that the Arbitrator "totally ignores the fact" that
an investigation was conducted after the Agency became aware of the
offense. Id. The Agency concludes that because the Arbitrator
overlooked the investigation, he erroneously calculated the 45 days from
the date he determined the Agency became aware of the offense and not
from the date of the completion of the investigation. Id. at 4. The
Agency requests that the Arbitrator's decision be set aside and the
original 14-day suspension be reinstated. Id.
B. The Union
The Union opposes the Agency's exceptions as "nothing more than
disagreement with the (A)rbitrator's findings of fact, reasoning, and
conclusions." Opposition at 1. The Union claims that the Agency is
seeking to relitigate an issue that it lost before the Arbitrator, and
that there is no showing that the award is based on a nonfact. The
Union requests that the Agency's exceptions be denied.
V. Analysis and Conclusions
We conclude that the Agency has not established that the Arbitrator's
award is deficient on any of the grounds set forth in section 7122(a) of
the Statute. The Agency has failed to establish 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 view the Agency's exception as a contention that the award fails
to draw its essence from the parties' collective bargaining agreement
because the Arbitrator did not consider all of Section 5.02 of the
contract. For an award to be found deficient because it fails to 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 the purpose of the
agreement as to manifest an infidelity to the obligation of the
arbitrator; or (3) evidences a manifest disregard for the agreement;
or (4) does not represent a plausible interpretation of the agreement.
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 Agency has not demonstrated that the Arbitrator's interpretation
of Section 5.02 of the parties' agreement renders the award deficient
under any of the tests set forth above. We find that in disputing the
Arbitrator's conclusion, the Agency is merely disagreeing with the
Arbitrator's interpretation of the parties' agreement and attempting to
relitigate the issue presented before the Arbitrator and does not state
a ground on which the Authority will find an 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, AFL-CIO, 38 FLRA 1170, 1177-78 (1990); National Treasury
Employees Union, Chapter 243 and United States Department of Commerce,
United States Patent and Trademark Office, Arlington, Virginia, 37 FLRA
470, 475 (1990); and U.S. Department of Health and Human Serivces,
Social Security Administration, Chicago, Illinois and American
Federation of Government Employees, Local 1346, 35 FLRA 1180, 1186
(1990).
VI. Decision
The Agency's exceptions are denied.
39 FLRA 1279
39 FLRA NO. 112
National Weather Service Employees Organization and Dept. of
Commerce, National Weather Service, Washington, D.C., Case No.
0-NG-1871 (Decided March 20, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
FORLOUGHS
SEQUESTRATION
LAPSES OF APPROPRIATIONS
REIMBURSEMENT OF WAGES OR OTHER COMPENSATION
DIGEST NOTES
At issue was a proposal requiring the Agency, insofar as legally
permissable and to the extent appropriations allow, to reimburse
employees for wages and other compensation lost due to a forlough
resulting from a "sequestration" or "lapse of appropriation." The
Authority found that the proposal clearly concerns the conditions of
employment of unit employees. Because the proposal would require the
reimbursement to the extent permitted by law and regulation and because
the Agency has advanced no reason to conclude, and none is otherwise
apparent, that the proposal is inconsistent with law and regulation, the
proposal is negotiable under 7117(a)(1).
Case No. 0-NG-1871
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
(Union)
and
U.S. DEPARTMENT OF COMMERCE NATIONAL WEATHER SERVICE WASHINGTON, D.
C.
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUE
March 20, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute), and concerns the negotiability of one
proposal. The proposal requires the Agency, insofar as legally
permissible and to the extent appropriations allow, to reimburse
employees for wages and other compensation lost due to a furlough
resulting from a "sequestration" or "lapse of appropriation."
For the reasons stated below, we find that the proposal is
negotiable.
II. Proposal
Employees who are furloughed during a lapse of appropriation will be
retroactively paid and otherwise compensated when appropriations are
approved to the extent permitted by law and regulation.
III. Positions of the Parties
The Union states that the purpose of the proposal is to reimburse
those employees who were furloughed as a result of the implementation of
a Gramm-Rudman sequestration order in the event that Congress reached a
target budget after implementation of the order and the Agency is
subsequently given an appropriation sufficient to have covered its
personnel costs had there not been a furlough. Petition for Review at
1.
In its petition for review, the Union states that the Agency orally
declared the proposal to be nonegotiable during a bargaining session
relating to the impact and implementation of a possible Gramm-Rudman
sequestration order. The Union also states that the Agency did not
respond to the Union's request for a written allegation of
nonnegotiability.
The Agency did not file a statement of position.
IV. Analysis and Conclusions
We note, at the outset, that despite the Agency's failure to respond
to the Union's request for a written allegation of nonnegotiability, the
Union's petition for review is properly before us in the circumstances
of this case. See National Federation of Federal Employees, Local 1363
and U.S. Army Garrison, Yongsan, Korea, 15 FLRA 134 (1984).
The proposal at issue in this case would, "to the extent permitted by
law and regulation," require the Agency to pay and otherwise compensate
retroactively employees who had been furloughed due to a "sequestration"
order or a "lapse of appropriation" when Congress approves a budget for
the fiscal year and appropriates sufficient funds for the Agency to
cover the personnel costs that resulted from the furlough. /1/ In sum,
the proposal requires the Agency, insofar as legally permissible and to
the extent appropriations allow, to reimburse employees for wages and
other compensation lost due to a furlough resulting from a
"sequestration" order or a "lapse of appropriation."
The proposal clearly concerns the conditions of employment of
bargaining unit employees. See Fort Stewart Schools v. FLRA, 110 S.
Ct. 2043 (1990). Because the proposal would require the reimbursement
of employees "to the extent permitted by law and regulation," and
because the Agency has advanced no reason to conclude, and none is
otherwise apparent, that the proposal is inconsistent with law and
regulation, we find that the proposal is negotiable under section 7117(
a)(1) of the Statute.
V. Order
The Agency shall, upon request or as otherwise agreed to by the
parties, bargain on the proposal. /2/
FOOTNOTES
(1) "Sequestration," within the meaning of the Balanced Budge and
Emergency Deficit Control Act of 1985, Pub. L. 99-177, as amended by the
Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987,
Pub. L. 100-119, is the automatic permanent cancellation of budgetary
authority that would be necessary to reach statutory annual deficit
targets if those targets cannot be reached through the legislative
process.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
39 FLRA 1276
39 FLRA NO. 111
AFGE, Local 3457 and Dept. of Interior, Minerals Management Service,
New Orleans, Louisiana, Case No. 0-NG-1674 (Decided March 18, 1991)
STATUTE
7105(a)(2)(E)
7106(b)(3)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
DRUG TESTING
ESTABLISH AND ADMINISTER IN COMPLIANCE WITH LAW
APPROPRIATE ARRANGEMENT
DIGEST NOTES
At issue was a proposal which provides that, "The Employer agrees
that the establishing and administration of its drug testing program
will be done in strict compliance with the U.S. Constitution and all
applicable laws, rules and regulations and this agreement." For the
reasons discussed in 38 FLRA 1068, the Authority found this proposal to
be within the duty to bargain as an appropriate arrangement under 7106(
b)(3).
Case No. 0-NG-1674
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO LOCAL 3457
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR MINERALS MANAGEMENT SERVICE NEW
ORLEANS, LOUISIANA
(Agency)
DECISION
March 18, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 concerns the
negotiability of one proposal regarding the implementation of the
Agency's drug testing program. /1/
II. Proposal
Section 1. General
The employer agrees that the establishment and administration of its
drug abuse testing program will be done in strict compliance with the
U.S. Constitution and all applicable laws, rules and regulations and
this agreement.
III. Positions of the Parties
A. Agency
The Agency contends that the proposal is nonnegotiable because it is
inconsistent with Executive Order 12564 and interferes with management's
right to determine its internal security practices under section
7106(a)(1) of the Statute.
Specifically, the Agency asserts that inasmuch as the term "drug
abuse" as used in the proposal could be construed to mean that the
program may only test employees for an "abuse" of illegal drugs but not
for any usage that may not be considered an abuse, the proposal is
inconsistent with section 1 of Executive Order 12564, which requires
that employees refrain from "the use of illegal drugs." The Agency
argues that, as the Authority has held that Executive Order 12564
constitutes "law" under section 7117(a)(1) of the Statute, the proposal
is nonnegotiable under that section because the use of the term "drug
abuse" in the proposal is inconsistent with law. The Agency further
argues that because the proposal requires "strict" compliance with laws,
rules and regulations, it is inconsistent with the sole and exclusive
discretion expressly delegated by the Executive Order to the head of
each agency.
The Agency also argues that the proposal interferes with the Agency's
right to determine its internal security practices. As the drug testing
program is one way to protect the internal security of the Agency, the
Agency argues that the proposal, which requires "strict" compliance with
laws, rules and regulations, interferes with management's discretion to
establish standards for determining how it will comply with applicable
law, rule and regulation in establishing and administering the drug
testing program. It contends that the proposal does not qualify as an
appropriate arrangement under section 7106(b)(3) of the Statute because
the Union only made a blanket allegation that the proposal constitutes
an appropriate arrangement and did not provide any facts to support its
contention.
B. Union
The Union asserts that the proposal is intended to incorporate the
already existing standards required by law, rule and regulation. It
contends, contrary to the arguments of the Agency, that the term "drug
abuse" is intended to apply to all illegal drug use. The Union further
argues, citing National Treasury Employees Union and Internal Revenue
Service, 3 FLRA 693 (1980), that the Authority has held that proposals
which would require an agency to adhere to law are within the duty to
bargain, and that the fact that the proposal requires "strict"
compliance with law and regulation should make no difference. In its
supplemental brief, the Union contends that although the Authority has
stated that it will assume the validity of an agency's drug testing
program, such a course does not preclude consideration of the Union's
arguments concerning the negotiability of a proposal where that proposal
requires agency actions to be consistent with law, rule and regulation.
IV. Analysis and Conclusions
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) (Proposal 1) (Department of
Education), decision on reconsideration, 39 FLRA No. 107 (1991), we
found a proposal identical to the one at issue here to be negotiable as
an appropriate arrangement under section 7106(b)(3) of the Statute.
Id., slip op. at 7-11. For the reasons discussed at length in those
decisions, we find this proposal to be within the duty to bargain.
We recognize that the Union has not specifically raised an argument
in this case that the proposal is intended as an appropriate
arrangement. Nonetheless, we conclude that our statutory obligations
require that we apply the determination reached in Department of
Education to this case. To do otherwise would lead to anomalous and
conflicting results on identical proposals. See, for example, Merit
Systems Protection Board Professional Association and Merit Systems
Protection Board, 31 FLRA 258, 264 (1988), rev'd on other grounds, 913
F.2d 976 (D.C. Cir. 1990), decision on remand, 38 FLRA 354 (1990).
V. Order
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on the proposal. /2/
FOOTNOTES
(1) The Union's original appeal involved 3 proposals. The Union has
withdrawn Proposals 2 and 3 and that portion of the remaining proposal
that requires strict compliance with the U.S. Constitution.
Supplemental Brief at 4-5. Therefore, we will not address the
negotiability of that portion of Proposal 1 and Proposals 2 and 3.
(2) In finding the proposal to be negotiable, we make no judgment as
to its merits.
39 FLRA 1272
39 FLRA NO. 110
NFFE, Local 341 and Dept. of the Interior, Bureau of Indian Affairs,
Wapato Irrigation Project, Wapato, Washington, Case No. 0-NG-1861
(Decided March 18, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
REDUCTION-IN-FORCE
SEC. 9(b), PREVAILING RATE SYSTEMS ACT
SEC. 704(a), CSRA
DIGEST NOTES
The case concerned one proposal which would require that the Agency
not conduct a redution-in-force in order to convert certain employees
from full-time status to seasonal status. The Union asserted, without
contradiction, that the Agency is obligated to bargain on the proposal
under 9(d) of the Prevailing Rate Systems Act because it concerns a
matter which the parties negotiated prior to August 19, 1972. Section
704(a) of CSRA 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) applies.
The Authority found that the proposal concerns a term and condition
of employment, within the meaning of 704(a). The Agency has not
demonstrated or even argued that the requirements of section 704(a) are
not met and the Agency's assertion that the proposal conflicts with
7106(a)(2) is not relevant because 704(a) provides for negotiations
without regard to any provision of the Statute. Accordingly, the
proposal is negotiable.
Also rejected was the Agency contention that they are not obligated
to bargain on the proposal because it conflicts with a provision of the
Master Agreement. The Authority noted that it is well established that
where the conditions for review have been met, a union is entitled to a
decisin from the Authority, although additional issues may exist,
including whether an agency is obligated to bargain under the terms of a
master agreement, an issue that should be resolved in other appropriate
proceedings.
Case No. 0-NG-1861
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 341
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS WAPATO
IRRIGATION PROJECT WAPATO, WASHINGTON
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUE
March 18, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 one
proposal which would require that the Agency not conduct a
redution-in-force in order to convert certain employees from full-time
status to seasonal status.
For the following reasons, we conclude that the proposal is
negotiable.
II. Proposal
Management shall not conduct a Reduction in Force for the purpose of
converting the Wapato Irrigation Project employees from their present
fulltime status to seasonal status.
III. Positions of the Parties
The Agency did not file a statement of position. However, in its
response to the Union's request for an allegation of negotiability, the
Agency contended that the proposal was nonnegotiable because it
"conflicts with certain Management Rights as outlined in 5 U.S.C. 7106(
a)(2) and Article 4, Section 1 of the Master Agreement." Attachment 2 to
the Petition for Review at 1.
The Union contends that the parties "negotiate pay and pay practices"
under section 9(b) of the Prevailing Rate Systems Act, Pub. L. No.
92-392, codified at 5 U.S.C. Section 5343 (Amendments) and that "this
matter" was the subject of negotiation prior to August 19, 1972.
Petition for Review at 1-2. The Union also asserts that the proposal is
a pay practice because the employment status of an employee -- full-time
verses seasonal -- has a "direct effect on one's income(.)" Id. at 1.
IV. Analysis and Conclusions
The Union asserts, without contradiction by the Agency, that the
Agency is obligated to bargain on the proposal under section 9(b) of the
Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S. C.
Section 5343 (Amendments) because it concerns a matter which the parties
negotiated prior to August 19, 1972.
Section 704(a) of the Civil Service Reform Act (CSRA) 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). Section 704(b) provides that the "pay and pay
practices" of employees subject to section 704 and section 9(b) "shall
be negotiated in accordance with prevailing rates and pay practices . .
. ."
The Union asserts that the "length of time during a year when one is
employed and paid wages has a direct effect on one's income, and so (the
proposal concerns) a pay practice(,)" therefore, "it must be negotiated
in accordance with current prevailing practices." Petition for Review at
1-2. We disagree that the proposal concerns a pay practice within the
meaning of section 704(b). In VOA, we interpreted "'pay practice,'
within the context of section 704, to mean matters historically
considered part of an employee's compensation package, such as: (1)
adjustments to an employee's basic rate of pay; (2) matters concerning
the payment of differentials, overtime, and premiums; and (3) any other
general compensation policies that entered into and became a part of the
employee's total compensation package." VOA, 37 FLRA at 861.
This proposal, however, concerns a reduction-in-force designed to
convert certain employees from full-time to seasonal status. Although,
as the Union contends, the proposal may affect employees' pay, that
effect is not sufficient to make the proposal one that concerns pay
practices as we have interpreted them under section 704. Consequently,
we find that the proposal concerns a term and condition of employment,
within the meaning of section 704(a). Furthermore, we note that the
proposal need not be consistent with current prevailing practices to be
negotiable under section 704(a). See, for example, VOA, 37 FLRA at 869.
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); 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, 475 (1990). Here, the Agency has not demonstrated or
even argued that the requirements of section 704(a) of the CSRA are not
met. Rather, the Agency asserts merely that the proposal is
nonnegotiable because it conflicts with management's rights under
section 7106(a)(2) of the Statute and the parties' collective bargaining
agreement. The Agency's assertion that the proposal conflicts with
section 7106(a)(2) of the Statute is not relevant, however, because
section 704(a) provides for negotiations "without regard to any
provision of" the Statute. Accordingly, we conclude that the proposal
is negotiable.
Finally, we reject the Agency's contention that it is not obligated
to bargain on the proposal because the proposal "conflicts with . . .
Article 4, Section 1 of the Master Agreement." Attachment 2 to the
Petition for Review at 1. In this regard, 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 an issue exists regarding the Agency's duty to
bargain on this proposal, this issue should be resolved in other
appropriate proceedings. 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 Federation of
Federal Employees, Local 1900 and Department of Housing and Urban
Development, 33 FLRA 192, 195 (1988).
V. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning the proposal. /*/
FOOTNOTES
(*) In finding this proposal to be negotiable, we make no judgment as
to its merits.
39 FLRA 1261
39 FLRA NO. 109
Overseas Education Association and Dept. of Defense Dependents
Schools (Abernathy, Arbitrator), Case No. 0-AR-1868 (Decided March 15,
1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
ATTORNEY FEES
COST-PLUS FORMULA
PREVAILING MARKET
APPROPRIATE RATE FOR FEES
DIGEST NOTES
The Arbitrator found that attorney fees were warranted, but reduced
the amount of hours requested and denied certain fees. He awarded fees
based on the cost-plus formula. The Authority found that the
Arbitrator's reduction of the number of hours sought for its principle
attorney was deficient because the Arbitrator did not justify the
reduction with detailed findings concerning which of the hours spent by
the attorney were expended unreasonably. Accordingly, the award was set
aside on this portion of the award and remanded on the question of the
reasonableness of the request for attorney fees for this attorney.
The Authority further concluded that the award was deficient insofar
as it denied the requested attorney fees for a second attorney on the
basis that the hours expended concerned an issue the Arbitrator did not
consider or rule on, and the question of the reasonableness of the
requested fees was remanded. As to the third attorney, the Authority
concluded that the portion of the award denying fees was deficient,
finding that the fact that an attorney's participation was limited to
administrative or supervisory functions is not, by itself, a sufficient
basis for denying the fees. That portion of the award was remanded for
a fully articulated decision.
On the appropriate rate for fees, the Authority concluded that the
award granting fees using the cost-plus formular was deficient. The
prevailing rate should be used to determine the amount of compensation.
As the Arbitrator did not reach the issue of what the appropriate rate
should be for each of the attorneys, the Authority remanded this
question to the parties for futher proceedings on that issue.
Case No. 0-AR-1868
OVERSEAS EDUCATION ASSOCIATION
(Union)
and
U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
(Agency)
DECISION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of
attorney fees of Arbitrator John H. Abernathy 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 found that attorney fees were
warranted, but reduced the amount of hours requested and denied certain
fees. He awarded fees based on the cost-plus formula. The Union
contends that the Arbitrator improperly reduced the number of hours
sought and erred in not granting other attorney fees. It also contends
the Arbitrator erred in not awarding attorney fees based on the
prevailing market rate.
For the following reasons, we conclude that the Arbitrator's award is
deficient. We will remand the matter of the Union's request for
attorney fees to the parties for further proceedings consistent with
this decision.
II. Background
The grievance in this case concerned a 1-day suspension of a unit
employee because of a statement he made at a meeting. The grievant was
employed at the Pusan American School in Korea. The suspension was
grieved and arbitrated. The Arbitrator sustained the grievance, finding
that the grievant was not suspended for just cause, and awarded the
grievant backpay. The Agency moved for reconsideration of the
Arbitrator's award. The Arbitrator denied the request for
reconsideration.
The Union subsequently moved for attorney fees pursuant to the Back
Pay Act. The Union requested compensation for H.T. Nguyen, its
principal attorney assigned to the case, for 304.28 hours. It requested
compensation of 12.5 hours for staff attorney Gladys Hernandez, who had
drafted a section of the post-hearing brief that concerned
constitutional issues. The Union requested compensation of 22.6 hours
for its Pacific Region counsel, Ann Hurst, for her processing of the
grievane and preparing the motion for attorney fees. It also requested
compensation of 22.6 hours for its General Counsel, Ronald Austin, for
time spent supervising the work of his three staff counsels, advising
them on tactics and defenses that they should use in the case, and
reviewing their work.
The Union claimed fees at market rate for the four attorneys, Austin
at $165 an hour, Nguyen and Hurst at $120 an hour, and Hernandez at $95
an hour. The market rate for these fee requests was substantiated by
reference to prior fee awards to these counsel, which have ranged from
$90 to $140 an hour, and by citation to and analysis of published
surveys of attorney fees. Each of the four counsel's claim for fees was
accompanied by affidavits that described their experience and
qualifications and contained copies of the time records each kept in
this case detailing the work that they had done. Further, each
affidavit stated that the attorneys were not obligated by their
employment contract with the Union to return to the Union any fees
awarded to them that exceeded the equivalent to their hourly salary for
the time expended on the case. The Union also claimed reimbursement for
certain expenses.
III. The Arbitrator's Award on Attorney Fees
The Arbitrator found that the statutory requirements for an award of
attorney fees were met because the grievant was the prevailing party,
backpay was awarded, and a fee award would be in the interest justice.
The Arbitrator granted the Union's request for compensation for all
the hours spent by Hurst on the case and expenses claimed. However, he
reduced Nguyen's request for compensation from 304.28 hours to 200
hours. The Arbitrator found that "(a)n award based on 200 hours . . .
would be more reasonable(.)" Award at 25. He granted the total expenses
claimed by Nguyen. The Arbitrator denied the Union's request for
compensation for the 12.5 hours spent by Hernandez on research and
preparation of the Union's argument concerning the First Amendment
because the "constitutional issue had no part in my analysis or ruling
in the case." Id. at 23. The Arbitrator also denied compensation for
the 22.6 hours spent by Austin on the case. The Arbitrator found that
"Austin's participation in this case was more in the nature of
administrative and supervisory activities than legal services per se."
Id. He concluded that an attorney fee award with respect to Austin
would not be "consistent with the requirements of the statute." Id.
The Arbitrator further ruled that the Back Pay Act entitled the Union
attorneys only to fees on the basis of a "cost-plus" formula (twice
their reconstructed hourly salary) rather than at the prevailing market
rate. The Arbitrator analyzed the different cases with respect to this
issue. He found that the "case law also makes it clear that the (Union)
is not to receive a 'windfall' from payment at prevailing market
rates(.)" Id. at 22. In this regard, the Arbitrator stated:
The (Union), of course, is entitled to compensation in the form of
reimbursement for (Union) attorneys for the actual costs, because
the (Union) is acting through its attorneys on behalf of a
substantially innocent employee. It is not clear to me, though,
how making payment directly to the (Union) attorneys at prevailing
market rates furthers the interest of the statute to compensate
innocent persons, rather than punish the (A)gency. Therefore, I
believe that payment to the attorneys based on the same cost plus
formula as applied if payment were to be made directly to the
(Union) is the most appropriate course of action.
Id.
In reaching that conclusion, the Arbitrator noted that he might have
reached a different conclusion if the basis of the award were a finding
that the Agency acted in bad faith. In such a case, he reasoned, the
purpose of the attorney fee award would be more punitive than
compensatory. The Arbitrator also noted that, although it was not his
major reason for selecting the cost-plus formula, it would be difficult
to determine a prevailing rate for the attorneys involved in this case.
IV. Exceptions
The Union excepted to the amount of attorney fees granted by the
Arbitrator. The Union contends that the Arbitrator: (1) improperly
reduced the number of hours for which Nguyen sought compensation without
making detailed findings concerning which hours claimed were
unreasonably expended; (2) improperly denied fees requested for the
services provided by Hernandez and Austin; and (3) erred by awarding
fees based on the cost-plus formula rather than at the prevailing market
rate.
With regard to the reduction of hours for which Nguyen sought
compensation, the Union contends that the Arbitrator's award was
inconsistent with law because he reduced the number of hours sought
without making detailed findings concerning which of the hours Nguyen
spent on particular aspects of the preparation, trial, and briefing had
been unreasonably expended. It argues that it is settled Authority case
law that any reduction in the hourly rate or the number of hours awarded
must be justified by detailed findings, citing, in support of its
position, FAA, Washington Flight Service Station and National
Association of Air Traffic Specialists, 27 FLRA 901, 903 (1987); Naval
Air Development Center, Department of the Navy and American Federation
of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 139 (1986);
Department of the Air Force Headquarters, 832D Combat Support Group
DPCE, Luke Air Force Base, Arizona and American Federation of Government
Employees, AFL-CIO, Local 1547, 32 FLRA 1084, 1101 (1988) (Luke Air
Force Base). Further, citing to Crumbaker v. MSPB, 781 F.2d 191, 195
(Fed. Cir. 1986) (Crumbaker) and Northcross v. Board of Education, 611
F.2d 624, 637 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980)
(Northcross), the Union argues that a mere conclusory finding that the
amount of time spent on a case by counsel was unreasonable is inadequate
to support a reduction in the fees requested.
The Union contends that the hours sought by Nguyen were adequately,
even painstakingly, documented. It requests that the Authority modify
the award by directing the Agency to pay Nguyen for the full 304.28
hours that he spent on the case.
As to the Arbitrator's denial of the Union's request for
reimbursement of the 12.5 hours spent by Hernandez researching a
constitutional issue, the Union contends that the Arbitrator improperly
concluded that a fee award for that time was not appropriate because he
did not overturn the grievant's suspension on that ground. The Union
argues that successful litigants are entitled to a fee award for all
time reasonably spent by counsel on a case, regardless of whether the
fact finder reaches all the issues raised by the litigant. The Union
further argues that its counsel was ethically obligated to raise all
possible, nonfrivolous defenses on the grievant's behalf, and the fact
that the suspension was reversed on one particular ground does not
demonstrate that the time spent by counsel researching and advocating an
alternative legal theory was unreasonably spent. In support of its
contention, the Union quotes the Supreme Court's holding in Hensley v.
Eckerhart, 461 U.S. 424, 435 (1983) (Hensley), that when a prevailing
party "has obtained excellent results, his attorney should recover a
fully compensatory fee. . . . Litigants in good faith may raise
alternative legal grounds for a desired outcome, and the court's
rejection of or failure to reach certain grounds is not a sufficient
reason for reducing a fee. The result is what matters." The Union also
cites to Northcross in support of its position and notes that the Merit
System Protection Board (MSPB) has held that appellants are entitled to
a fee award encompassing the time their counsel spends advocating any
number of alternative theories or defenses against an adverse action,
even if the presiding official overturns the adverse action on the basis
of only one of the alternative defenses.
The Union further contends that the Arbitrator's decision to deny
compensation for the 22.6 hours expended by Austin was also in error;
that the Arbitrator incorrectly held that the Union was not entitled to
a fee award for Austin simply because his work was supervisory in
nature. It argues that fees should be awarded to multiple counsel on a
case even if one acts in a supervisory role. It contends that the time
spent by Austin constituted services provided to the grievant because
the trial attorney in this case, Nguyen, relied upon the advice and
guidance of Austin, an attorney with over 30 years of practice
experience. The Union further argues that it should not be penalized
for having a less senior counsel try the case by denying it fees for the
minimal amount of time the senior counsel spends giving the trial
counsel, and derivatively the grievant, the benefit of his experience.
Finally, with regard to the Arbitrator basing his award of attorney
fees on the cost-plus formula rather than at the prevailing market rate,
the Union contends that the Arbitrator erred by ignoring the Authority's
decision in Department of Defense Dependents Schools, Pacific Region and
Overseas Education Association Pacific Region, 32 FLRA 757, 759 (1988)
(DODDS, Pacific Region), which held that "attorneys employed by unions
may be awarded market or prevailing rates if the fees are awarded
directly to the attorneys" provided the attorney "demonstrate(s) that
the terms of his or her employment do not require that the union be
reimbursed from such (a) fee award for more than the actual costs the
union incurred in providing (the) legal representation." It notes that
this Authority decision is based on a clear line of authority contained
in several decisions of courts of appeals. The Union argues that all
four Union attorneys testified in their affidavits that they were not
obligated by virtue of their employment contract with the Union to
return to the Union attorney fees awarded in excess of their hourly
salary.
The Union also takes issue with the Arbitrator's remark that he would
have awarded fees at a prevailing market rate as a "punitive" measure if
the evidence indicated that the Agency had acted in bad faith in
suspending the grievant. It argues that there is no authority for the
proposition that the rate at which fees are awarded under the Back Pay
Act should be measured by the agency's good faith or bad faith.
The Union contends that the prevailing market rates for fees in the
Washington, D.C. area are appropriate to establish the rates for the
attorneys in this case. It further contends that the rates requested
are fully supported and are based on nationwide surveys. Accordingly,
the Union requests that the Arbitrator's fee award be modified to
increase the fee awards to the Union counsel based on the lodestar
computation at the hours and market rates it had requested.
V. Analysis and Conclusions
We conclude that the Arbitrator's award on attorney fees is
deficient. We will remand the matter of the Union's request for
attorney fees to the parties for further proceedings consistent with
this decision.
A. Attorney Fee Request for Nguyen
We conclude that the Arbitrator's reduction of the number of hours
sought for Nguyen from 304.28 to 200 is deficient because the Arbitrator
did not justify the reduction with detailed findings concerning which of
the hours spend by Nguyen were expended unreasonably.
In Crumbaker, the U.S. Court of Appeals for the Federal Circuit held
that there must be a clear explanation of fee awards. In reaching its
decision, the court applied the standard in Northcross, 611 F.2d at
636-37, concerning fee requests. Under that standard, "if a district
court decides to eliminate hours of service adequately documented by the
attorneys, it must identify those hours and articulate its reasons for
their elimination." Crumbaker, 781 F.2d at 195 (quoting Northcross, 611
F.2d at 636-37). "Conclusory remarks . . . are wholly inadequate(.)"
Id. The court remanded the case to the MSPB to make its determination
"supported by a concise but clear explanation of its reasons for any
reduction of the hours awarded from those claimed(.)" Id. (emphasis in
original). In Luke Air Force Base the Authority specifically adopted
this requirement in reviewing attorney fee requests. 32 FLRA at 1101.
The Union in this case provided adequate documentation in support of
its request for attorney fees for Nguyen. Nonetheless, the Arbitrator
found that "(a)n award based on 200 hours . . . would be more
reasonable(.)" Award at 25. He provided no clear, articulated
explanation for the reduction in hours. We find that the Arbitrator's
finding was conclusory and did not contain the required detailed
findings identifying those hours to be eliminated and reasons for their
elimination. See also Federal Aviation Administration, Washington
Flight Service Station and National Association of Air Traffic
Specialists, 27 FLRA 901, 903 (1987); Naval Air Development Center,
Department of the Navy and American Federation of Government Employees,
Local 1928, AFL-CIO, 21 FLRA 131, 139 (1986) (any reduction of the
hourly rate or the number of hours must be justified by detailed
findings). Accordingly, we will set aside this portion of the
Arbitrator's award and we will remand the question of the resonableness
of the request of attorney fees for Nguyen to the parties to obtain from
the Arbitrator a detailed and reasoned decision on this issue.
B. Attorney Fee Request for Hernandez
We conclude that the Arbitrator's award is deficient insofar as it
denies the requested attorney fees for Hernandez on the basis that the
hours expended by Hernandez concerned an issue the Arbitrator did not
consider or rule on. The Arbitrator did not find that Hernandez
expended that time on an issue that was frivolous or asserted in bad
faith. See Northcross, 611 F.2d at 636. Moreover, the results obtained
for the grievant in this case were completely successful with the
suspension reversed and the grievant receiving backpay.
As the Supreme Court stated in Hensley, "(l)itigants in good faith
may raise alternative legal grounds for a desired outcome, and the
court's rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee. The result is what matters." 461
U.S. at 435. Applying the Hensley standard, we conclude that Hernandez
"should recover a fully compensatory fee." Id. Accordingly, we will set
aside this portion of the Arbitrator's award and we will remand the
question of the reasonableness of the request of attorney fees for
Hernandez to the parties to obtain from the Arbitrator a detailed and
reasoned decision on this issue.
C. Attorney Fee Request for Austin
We conclude that the portion of the Arbitrator's award denying
attorney fees for Austin is deficient. We find the fact that an
attorney's participation in a case was limited to administrative or
supervisory functions is not, by itself, a sufficient basis for denying
attorney fees. Here, there was no finding that Austin's activities were
not related to the case.
In Wilson v. Department of Health and Human Services, 834 F.2d 1011
(Fed. Cir. 1987), the court held that the presiding official's deletion
of work-time of an associate on the grounds that his work was
duplicative of the principal attorney's own efforts must be supported by
substantial evidence. The court found that "(a)n associate's function
is usually to help his principal . . . (t)his is not at all duplication
but an aid to his principal's functioning(.)" 834 F.2d at 1013.
We find that the Arbitrator's determination that administrative and
supervisory activities were not compensable is not a sufficient basis
under the Back Pay Act for denying an award of attorney fees. In order
to deny fees for Austin, the Arbitrator must fully articulate and
specify the reasons why the functions performed by Austin were either
insufficiently related to the case or were duplicative of the work
performed by the principal counsel. Accordingly, we will remand this
portion of the Arbitrator's award to the parties for a fully articulated
decision. See United States Department of the Navy, Norfolk Naval
Shipyard and American Federation of Government Employees, Local 4015, 34
FLRA 725, 728 (1990) (5 U.S.C. Section 7701(g) requires a fully
articulated, reasoned decision setting forth the arbitrator's specific
findings supporting the determination on each pertinent statutory
requirement, including the basis on which the reasonableness of the
amount was determined when fees are awarded).
D. Appropriate Rate for Fees
We conclude that the Arbitrator's award granting fees using the
cost-plus formula is deficient.
In DODDS, Pacific Region, the Authority adopted and applied portions
of the courts' decisions in National Treasury Employees Union v. U.S.
Department of Treasury, 656 F.2d 848 (D.C. Cir. 1981) and Devine v.
National Treasury Employees Union, 805 F.2d 384 (Fed. Cir. 1986),
petition for cert. denied sub nom. NTEU v. Horner, 108 S. Ct. 67 (1987),
that attorneys employed by unions may be awarded market or prevailing
rates if the fees are awarded directly to the attorneys. The Authority
found in DODDS, Pacific Region, that:
In order for an award of fees at the prevailing rate to be made to
a union-salaried attorney, the attorney must present evidence that
the fee is to be awarded directly to the attorney. Furthermore,
the attorney must demonstrate that the terms of his or her
employment do not require that the union be reimbursed from such a
fee award for more than the actual costs the union incurred in
providing the legal representation.
32 FLRA at 759.
The Arbitrator rejected this standard and decided that the cost-plus
formula in determining payment was more appropriate. He noted that he
might have reached a different conclusion if the basis of the award were
a finding that the Agency acted in bad faith. We find the Arbitrator's
conclusions are contrary to law.
The Union has submitted affidavits from the four attorneys regarding
the disposition of fees obtained by them. The affidavits were also
provided to the Arbitrator. On the basis of the uncontradicted
assertions in the affidavits, we conclude that the Union has
demonstrated that the four attorneys are not required to turn over their
entire fee awards to the Union. Therefore, we conclude that the
prevailing market rate should be used to determine the amount of
compensation to be awarded to each attorney.
The Arbitrator did not reach the issue of what the appropriate
prevailing market rate should be for each of attorneys. Although the
Arbitrator noted that it would be difficult to determine a prevailing
market rate for the attorneys involved in this case, we take notice
under section 2429.26 of our Rules and Regulations of a subsequent award
of the Arbitrator involving the same parties and three of the four
attorneys involved in this case. That award was provided by the Union
and served on the Agency. In that case the Union requested the same
rate for each of the attorneys as it did in this case, relying on the
same supporting evidence. The Arbitrator granted an award of attorney
fees as requested.
As the Arbitrator did not reach the issue of what the appropriate
rate should be for each of the attorneys involved in this case, we will
remand this question to the parties for further proceedings on that
issue.
VI. Summary
We conclude that: (1) the Arbitrator's summary reduction of hours
requested by the Union for Nguyen is deficient and we remand the
question of the reasonableness of the attorney fees request fo Nguyen to
the parties to obtain from the Arbitrator a detailed and reasoned
decision; (2) the Arbitrator's denial of the Union's request for
attorney fees for Hernandez is deficient and we will remand the question
of the reasonableness of the attorney fees request for Hernandez to the
parties to obtain from the Arbitrator a detailed and reason decision;
(3) the Arbitrator's conclusory finding that Austin was not entitled to
attorney fees because his activities were administrative and supervisory
in nature is insufficient and we remand that portion of the award to the
parties to obtain a fully articulated decision; and (4) the
Arbitrator's granting of attorney fees using the cost-plus formula
rather than the prevailing market rate is deficient and we remand to the
parties for further proceedings the determination of the appropriate
prevailing market rate for fees.
VII. Decision
We conclude that the Arbitrator's award of attorney fees is
deficient. We remand the matter of the Union's request for attorney
fees to the parties for further proceedings consistent with this
decision.
39 FLRA 1250
39 FLRA NO. 108
Dept. of the Treasury, Internal Revenue Service, Cincinnati, Ohio and
NTEU, Chapter 9 (Archer, Arbitrator), Case No. 0-AR-1900 (Decided March
15, 1991)
STATUTE
7122(a)
7106(a)(2)(C)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
NONCOMPETITIVE REASSIGNMENT
CONFLICT WITH LAW
5 U.S.C. 3321
5 C.F.R. 315.907(a)
RIGHT TO SELECT
APPROPRIATE ARRANGEMENTS
DIGEST NOTES
The Arbitrator sustained a grievance alleging that the Agency had
violated the agreement when it noncompetitively reassigned a supervisor
to a unit position for which qualified unit employees had competed. As
his award, the Arbitrator directed the Agency to adhere to the contract
and agreed-upon procedures for placing returning supervisors into unit
positions without competition and ordere the Agency to provide the
grievant with priority consideration for the next appropriate vacancy.
The Authority concluded that the award did not conflict with 5 U.S.
C. 3321 because the selectee in the case was entitled to the disputed
position under that section and implementing regulations. Because the
selectee voluntarily requested reassignment to a lower grade, the Agency
has not established that she was entitled to reassignment under 3321.
The Authority also concluded that the award does not abrogate
management's right to select. In the Authority's view, the restriction
in the agreement constitutes an appropriate arrangement for employees
adversely affected by the exercise of management's right to select.
Case No. 0-AR-1900
U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE CINCINNATI,
OHIO
(Agency)
and
NATIONAL TREASURY EMPLOYEES UNION CHAPTER 9
(Union)
DECISION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Edward P. Archer 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 had
violated the parties' collective bargaining agreement when it
noncompetitively reassigned a supervisor to a bargaining unit position
for which qualified bargaining unit employees had competed. As his
award, the Arbitrator directed the Agency to adhere to the parties'
contract and the agreed-upon procedures for placing returning
supervisors into bargaining unit positions without competition and
ordered the Agency to provide the grievant with priority consideration
for the next appropriate vacancy.
For the following reasons, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The circumstances giving rise to the grievance were stipulated by the
parties at the arbitration hearing. The grievant was among three
bargaining unit employees who had applied and competed for a lead
clerk/typist, GS 322-5 position that had been announced by the Agency on
January 20, 1989. The applicants were rated and ranked. All three
applicants were placed on the best-qualified list; the grievant was
ranked highest. On February 23, 1989, after the closing date of the
vacancy announcement, the selecting official received a request by the
former incumbent of the posted position, who had been promoted to a
supervisory position and had not yet completed her probationary period
as a supervisor, that she be returned to a GS-5 position. On February
24, 1989, the selecting official reviewed the best-qualified list but
did not select from the list. Later that same day, the selecting
official noncompetitively reassigned the former incumbent from her
non-bargaining unit position to the vacant bargaining unit position.
A grievance was filed alleging that the Agency had violated the
competitive promotion procedures set forth in Article 13 of the parties'
collective bargaining agreement. /1/ The grievance was not resolved and
was submitted to arbitration.
The Arbitrator stated that there was no dispute that the job for
which the grievant had competed and which was given to the former
incumbent without competition was a "budgeted position" and at the time
the former incumbent was given the job she was not in the bargaining
unit. /2/ Accordingly, the Arbitrator concluded that under Article 13,
Section 2B.7 of the parties' agreement, the promotion procedures of
Article 13 were applicable unless they were "overridden by statute or
this job was an exception under either Article 13, Section 2A or a
binding past practice or unless the Agency's actions qualified as the
use of 'an alternative source' under Article 13, Section 2C.1." Award at
4.
Before the Arbitrator, the Union took the position that the exception
contained in Article 13, Section 2A.8 was not applicable and that
Section 2C.1 of that article did not permit the Agency to place the
former incumbent in the disputed job without the competition provided
for in Article 13. The Union also argued that there was no statute that
was inconsistent with or took precedence over the contractual
requirements of Article 13.
The Agency contended before the Arbitrator that, based upon
bargaining history and past practice, it was contractually permitted to
place the former incumbent in the position without following the
procedures otherwise required under Article 13, and that its placement
of the non-bargaining unit employee into the job was, in effect, a use
of an "alternative source" under Article 13, Section 2C.1. Award at 20,
25. Alternatively, the Agency argued that its action was taken pursuant
to statutory authority under 5 U.S.C. Section 3321 and the Federal
Personnel Manual which took precedence over the requirements of Article
13. /3/
The Arbitrator considered and analyzed testimony from both parties
regarding the bargaining history of Article 13, the past practice under
Article 13, and the meaning and applicability of 5 U.S.C. Section 3321.
With respect to bargaining history, the Arbitrator first noted that
Article 13, Section 2B.7 explicitly provides that the competition
procedures of Article 13 apply to filling bargaining unit positions with
non-bargaining unit applicants and that the selectee was a
non-bargaining unit applicant seeking a position in the bargaining unit.
The Arbitrator concluded that Section 2A.8, which excludes from Article
13 the filling of non-budgeted, bargaining unit positions with
management officials, had no application to the grievance because the
position in question was a budgeted position. Thus, the Arbitrator
found that the "clear meaning of the language of Article 13 supports the
Union's position that Article 13 was applicable to the filling of the
position in question." Id. at 22. The Arbitrator found no merit in the
Agency's contention that the bargaining history supported the Agency's
action in reassigning the selectee without competition. Rather, the
Arbitrator concluded that "the preponderance of the evidence in the
record supports the conclusion that . . . the parties agreed to exactly
what they stated in their agreement. The competition requirements of
Article 13 were to apply to the filling of bargaining unit positions
with non-bargaining unit applicants (Section (2)B.7) with the exception
of the filling of non-budgeted bargaining unit positions with managers
or management officials (Section (2)A.8)." Id. at 24.
In examining and analyzing the Agency's contention regarding past
practice, the Arbitrator noted that the evidence provided as to past
practice under Article 13 did not address the issue before him. Rather,
it related to the Agency's ability to place "managers into non-budgeted
unit positions with the right thereafter to non-competitively place such
managers into unit positions which become vacant subsequent to the
manager's placement into the non-budgeted position." Id. (emphasis in
original). The Arbitrator found that the evidence provided "no support
for (the Agency's) understanding that managers could be moved without
competition into unit positions of the grade they had been in when
promoted into management." The Arbitrator continued "it is, of course,
that understanding that the Agency is relying upon as support for its
action in this case." Id. at 25.
The Arbitrator also rejected the Agency's contention that Article 13,
Section 2C.1 permitted the selection of the non-bargaining unit
applicant because she was an "alternative source" that the Agency was
authorized to use after it had not selected any of the candidates on the
best-qualified list. The Arbitrator noted that the Agency had the right
not to select any of the competing candidates and to turn to alternative
sources. However, the Arbitrator concluded that Article 13, Section
2C.1 must be read together with Sections 2B.7 and 2A.8 of that same
article and that under the latter two sections the Agency had "agreed
that it could not place managers into bargaining unit positions without
competition except by first putting them into non-budgeted positions and
thereafter . . . placing into them unit positions which subsequently
became vacant." Id. at 25-26. The Arbitrator found that Sections 2B.7
and 2A.8 would be rendered "meaningless, (if) the Agency could bypass
the restrictions of 2A.8 by merely calling its desired supervisory
candidate an 'alternative source' under 2C.1." Id. at 26. Accordingly,
the Arbitrator concluded that "Section 2C.1 permits alternative sources
to be used for filling vacancies but not alternative sources which are
expressly disallowed under Sections 2B and 2A of Article 13." Id. The
Arbitrator stated that he was "persuaded that the Agency agreed not to
fill unit positions with supervisors returning to the unit without
competition except by the procedure agreed to under Article 13, Section
A.8. That was not done in this case and cannot be bypassed under
Article 13, Section C.1." Id. at 27.
Finally, the Arbitrator found no merit in the Agency's contention
that the action it took was mandated by 5 U.S.C. Section 3321 and the
Federal Personnel Manual (FPM) chapter 315, subchapter 9. The
Arbitrator noted that both 5 U.S.C. Section 3321 and the cited portion
of the FPM "provide that a supervisor who does not satisfactorily
complete the probationary period shall be returned to a position of no
lower grade and pay than the position from which the individual was
promoted." Id. at 28 (emphasis in original). The Arbitrator concluded
that under Article 13, Section 2A.8 the Agency had the authority to
place the selectee into a non-budgeted unit position and that was "all
that she was entitled to under either 5 U.S.C. Section 3321 or the
Federal Personnel Manual." Id. The Arbitrator found that 5 U.S.C.
Section 3321 ensured the affected employee's re-entry into a position in
the bargaining unit, but not necessarily precisely the same job the
employee had occupied prior to promotion. The Arbitrator found further
that Article 13 did not conflict with 5 U.S.C. Section 3321 because
Article 13 set forth procedures which management would observe in
implementing 5 U.S.C. 3321 and did not preclude an affected employee's
return to a position comparable to the job he or she held prior to being
promoted.
Based upon the foregoing, the Arbitrator concluded that the Agency
violated the collective bargaining agreement by placing the selectee in
the disputed position without her participation in competition. As his
award, the Arbitrator directed the Agency to adhere to Article 13 of the
parties' collective bargaining agreement and the agreed-upon procedures
in placing returning supervisors into bargaining unit jobs and ordered
the Agency to provide the grievant with priority consideration for the
next appropriate vacancy.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient because
it is contrary to law and regulation. Specifically, the Agency argues
that the award is contrary to 5 U.S.C. Section 3321 and denies the
Agency the authority to exercise its rights under section 7106(a) of the
Statute.
With respect to 5 U.S.C. Section 3321, the Agency maintains that its
"right to return a supervisor to a bargaining unit position at no higher
grade than held when the employee left the bargaining unit is a
statutory duty and is not subject to negotiated procedures." Memorandum
in Support of Exceptions at 4. The Agency argues that the FPM provides
that supervisors who do not complete their probationary periods are
entitled to be placed in a position of no lower grade and pay than the
one the employee left to accept the supervisory position and that "(t)
his guidance in conjunction with the mandatory 'shall' of (5 U.S.C.
Section 3321) must control . . . . The OPM regulations do not provide
for any procedural roadblock to the former supervisor's entitlement to a
bargaining unit position. The nondiscretionary language of (5 U.S.C.
Section 3321) and the regulations cogently illustrates the futility of a
negotiated procedure: (5 U.S.C. Section 3321) and the regulations
subsume procedures in their wake." Id. at 5. The Agency, therefore,
asserts that no limitation may be imposed on its duty to comply with 5
U.S.C. Section 3321.
The Agency maintains that the award conflicts with the Statute
because it interferes with its right to select under section 7106(a)(
2)(C) by "preventing the selecting official from going beyond the
candidates referred to him on the best qualified list of the internal
candidates." Id. at 9. The Agency argues that "the Arbitrator
impermissibly limited the source from which the Agency could make
selections," id. at 10, and "limited the (A)gency from making a
selection from an appropriate source by preventing the (A)gency from
reassigning a probationary manager to her former position," id. at 11.
B. The Union's Opposition
The Union maintains that the Arbitrator's decision is well-reasoned
and draws its essence from the parties' collective bargaining agreement.
The Union asserts that the Agency, in its exceptions, is merely
disagreeing with the Arbitrator's interpretation and application of
provisions of the agreement and that such disagreement provides no basis
for finding the award deficient.
The Union argues that the Agency has misunderstood the Arbitrator's
award and that the award does not require the Agency to select from
internal candidates or impermissibly limit the Agency's ability to
select from any other sources. The Union contends that the award
enforces the competitive promotion procedures set forth in the
collective bargaining agreement and does not restrict the Agency's
ability to fill positions from any source. The Union argues that the
award merely requires the Agency to use the competitive procedures set
forth in Article 13 of the parties' agreement when selecting supervisors
for budgeted, bargaining unit positions.
The Union also contends that the award is not inconsistent with 5 U.
S.C. Section 3321. The Union argues that 5 U.S.C. Section 3321 does not
require the Agency to return a probationary supervisor to any particular
position. The Union notes that the Arbitrator correctly stated that the
collective bargaining agreement provides that the Agency can
noncompetitively assign a supervisor to any non-budgeted position.
Therefore, the Union maintains that the Agency can comply both with the
Arbitrator's award and 5 U.S.C. Section 3321. Moreover, the Union
argues that the Agency has not established that the selectee in this
case was qualified for the protections of 5 U.S.C. Section 3321 because
the selectee voluntarily requested a reassignment to a lower grade and
the Agency had not established that she did not "satisfactorily
complete" her probationary period as required by 5 U.S. C. Section
3321.
IV. Analysis and Conclusions
A. The Award Does Not Conflict with 5 U.S.C. Section 3321
We reject the Agency's claim that the award is deficient because,
contrary to the determination of the Arbitrator, the selectee in this
case was entitled to the disputed position under 5 U.S.C. Section 3321
and implementing regulations. We find in agreement with the Union that
because the selectee voluntarily requested reassignment to a lower
grade, the Agency has not established that she was entitled to
reassignment under section 3321.
Under section 3321(b)(2), an individual who does not "satisfactorily
complete" the probationary period served as a supervisor or manager is
entitled to be returned to a position of no lower grade and pay than the
position from which the individual was promoted to supervisor or
manager. With respect to the failure to complete the probationary
period, 5 C.F.R. Section 315.907(a) provides that the supervisor or
manager is entitled to reassignment under section 3321(b)(2) when the
individual does not satisfactorily complete the probationary period "for
reasons of supervisory or managerial performance." FPM chapter 315,
subchapter 9-6(b) similarly provides that a supervisor or manager is
entitled to reassignment under section 3221(b)(2) "only for reasons
related to the employee's performance as a supervisor or manager."
In this case, the Agency has failed to demonstrate that the selectee
did not satisfactorily complete the probationary period of her
supervisory position "for reasons directly related to the employee's
performance as a supervisor." Consequently, we conclude that the Agency
fails to establish that the selectee was entitled to reassignment under
section 3321(b)(2). Accordingly, we find no basis for finding the award
deficient, and we will deny this exception. In denying the exception,
we find it unnecessary for us to address the Arbitrator's different
reasoning in correctly concluding that the action the Agency took was
not mandated by section 3321.
B. The Award Does Not Abrogate Management's Right to Select Under
Section 7106(a)(2)(C) of the Statute
In Department of the Treasury, U.S. Customs Service and National
Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we
reexamined our approach to cases in which an agency contends that an
arbitrator's award, enforcing a provision of the parties' collective
bargaining agreement, is contrary to management's rights under section
7106(a) of the Statute. We held that when an agency makes such a
contention we will examine, as appropriate, the provision enforced by
the arbitrator to determine: (1) if it constitutes an arrangement for
employees adversely affected by the exercise of management's rights;
and (2) if, as interpreted by the arbitrator, it abrogates the exercise
of a management right. We explained that if it is evident that the
provision constitutes an arrangement and, as interpreted by the
arbitrator, does not abrogate management's rights, the provision is
within the range of matters that can be bargained under the Statute. We
also held that if the arbitrator's interpretation does result in an
abrogation of management's rights under section 7106(a), the award will
be found deficient as contrary to law, but the contractual provision,
susceptible to a different and sustainable interpretation by a different
arbitrator, will not be affected.
We also noted in U.S. Customs Service, that an arbitrator's award is
deficient if it fails to draw its essence from the parties' agreement.
We encouraged the parties to set forth plainly and precisely the
arrangements to which they have agreed for employees adversely affected
by the exercise of management's rights. We held that when a party
establishes that the arbitrator's enforcement of the agreement does not
represent a plausible interpretation of the agreement, we will find the
award deficient. In such a circumstance, however, the award will be
found deficient because it fails to draw its essence from the agreement,
not because it conflicts with management's rights. Id. at 317-18.
Applying that approach in this case, we find that the Agency has not
established that the award is contrary to management's right to select
under section 7106(a)(2)(C) of the Statute. Instead, the Arbitrator has
enforced a provision of the parties' collective bargaining agreement
which constitutes an arrangement for employees adversely affected by the
exercise of management's right to select applicants for bargaining unit
positions by other than competitive promotion.
As interpreted by the Arbitrator, Article 13 precludes the Agency
from placing supervisors or managers into certain bargaining unit
positions without competition except by first putting them into
non-budgeted positions. As noted by the Agency, such a restriction on
the solicitation and consideration of applicants for vacant positions
directly interferes with management's right to select under section
7106(a)(2)(C) of the Statute. See American Federation of Government
Employees, Local 3296 and National Guard Bureau, Alaska National Guard,
33 FLRA 99 (1988).
In our view, however, such a restriction constitutes an arrangement
for employees adversely affected by the exercise of management's right
to select under section 7106(a)(2)(C) of the Statute. To the extent
that supervisors and managers are reassigned to bargaining unit
vacancies without competition, opportunities of bargaining unit
employees for advancement and promotion to desirable positions are
reduced. Indeed, the Arbitrator, in his analysis of the bargaining
history, concluded that the pertinent provisions of Article 13 were
negotiated to meet the Union's concerns over these specific effects on
employees. Consequently, we find that the Arbitrator enforced a
provision of the parties' collective bargaining agreement that
constitutes an arrangement for employees adversely affected by the
exercise of management's right to select.
Further, we find that Article 13, as interpreted and applied by the
Arbitrator, does not abrogate the Agency's right to select from any
appropriate source. In U.S. Customs Service, the Authority held that an
award "abrogates" a management right when the award "precludes an agency
from exercising" that right. U.S. Customs Service, 37 FLRA at 314. The
Arbitrator's award does not preclude the Agency from exercising its
right to solicit and consider applicants for vacant positions from any
appropriate source. Rather, the award only requires the Agency to
comply with Article 13 of the parties' agreement by not reassigning a
supervisor to a budgeted, bargaining unit position without competition.
Based on the above, we reject the Agency's contention that the award
is deficient because it is contrary to management's right to select
under section 7106(a)(2)(C) of the Statute and we will deny this
exception.
V. Decision
The Agency's exceptions are denied.
FOOTNOTES
(1) The provisions of Article 13 deemed pertinent by the Arbitrator
are set forth in the Appendix to this decision.
(2) It is not clear from the record before us how a "budgeted
position" under Article 13 is defined by the parties.
(3) 5 U.S.C. Section 3321 provides, in pertinent part:
(a) The President may take such action, including the issuance
of rules, regulations, and directives, as shall provide as nearly
as conditions of good administration warrant for a period of
probation -- . . .
(2) before initial appointment as a supervisor or manager
becomes final.
(b) An individual --
(1) who has been . . . promoted from a position to a
supervisory or managerial position, and
(2) who does not satisfactorily complete the probationary
period under subsection (a)(2) of this section,
shall be returned to a position of no lower grade and pay than the
position from which the individual was . . . promoted . . . .
APPENDIX
ARTICLE 13
Promotion/Other Competitive Actions
Section 1A. The purpose of this article is to ensure that all
competitive promotions to bargaining unit positions . . . are made on a
merit basis by means of systematic and equitable procedures so that
employees are given the opportunity to develop and advance to their full
potential.
Section 1B. The purpose of this article is also to provide that
Internal Revenue Service employees receive first consideration for all
actions set forth in Section 2.B. below.
Section 2A. The terms of this article . . . will not apply to:
. . .
8. the filling of non-budgeted bargaining unit positions with
managers or management officials(.)
Section 2B. The terms of this article will apply to all placement
actions within the bargaining unit. The following are examples of such
actions: . . .
7. filling bargaining unit positions with non-bargaining unit
applicants.
Section 2C.1 After the consideration process provided for in the
article has been completed, the Employee (sic) may use any other
alternative source to fill the vacancies involved (e.g. OPM certificate,
etc.) (.)
39 FLRA 1241
39 FLRA NO. 107
AFGE, Dept. of Education Council of AFGE Locals and Dept. of
Education, Washington, D.C., Case No. 0-NG-1595 (38 FLRA 1068) (Decided
March 15, 1991)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
DECISION ON RECONSIDERATION
DRUG TESTING
IN ACCORDANCE WITH APPLICABLE LAW, RULE AND REGULATION
URINE SAMPLES
TAKEN IN SANITARY AREAS WHICH ACCORD PRIVACY
DIGEST NOTES
The case was before the Authority on reconsideration granted because
the record did not show that the Agency was properly served with an
order granting it an opportunity to file a supplemental statement of
position.
Proposal 1 provided that the employer agrees that the establishment
and administration of its drug testing program will be done in strict
compliance with the Constitution and all applicable laws, rules and
regulations and the agreement. The Authority reaffirmed its conclusion
that the Statute (1) does not require management to exercise its rights
under 7106(a)(1) in accordance with external legal limitations; and (2)
provides that management's rights under 7106(a)(1) are "subject to"
section 7106(b). The Authority reaffirmed its conclusion that the
proposal does not excessively interfere with the Agency's right to
determine internal security practices and is a negotiable appropriate
arrangement.
Proposal 2 provides that the Employer agrees that drug tests will be
given in a sanitary, secluded area, which provides the employee with
privacy. The Authority concluded that the limitation imposed would be
negotiable as an appropriate arrangement under 7106(b)(3).
Case No. 0-NG-1595 (38 FLRA 1068 (1990))
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES DEPARTMENT OF EDUCATION
COUNCIL OF AFGE LOCALS
(Union)
and
U.S. DEPARTMENT OF EDUCATION WASHINGTON, D.C.
(Agency)
DECISION ON RECONSIDERATION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on reconsideration of the
Authority's decision in 38 FLRA 1068 that Proposal 1 and Proposal 5,
section B constituted "appropriate arrangements" under section 7106(b)(
3) of the Federal Service Labor-Management Relations Statute (the
Statute).
In 38 FLRA 1068, the Authority determined the negotiability of
several Union proposals concerning the implementation of the Agency's
drug testing program. The Authority found, among other things, that
Proposal 1, which requires the Agency to establish and administer a drug
testing program in accordance with the United States Constitution,
applicable law, rules and regulations and the parties' agreement
constituted an "appropriate arrangement" for employees adversely
affected by the exercise of the Agency's rights under the Statute and,
therefore, was negotiable.
The Authority also found that Proposal 5, section B, which provides
that urine samples will be taken in a sanitary area which accords
employees privacy, constituted an "appropriate arrangement" for
employees adversely affected by the exercise of the Agency's rights
under the Statute.
The Agency filed a motion for reconsideration of the Authority's
decision as to Proposal 1 and Proposal 5, section B. The Agency claimed
that it was unaware of the Authority's Order granting the Agency an
opportunity to file a supplemental statement of position addressing the
Union's contention that the proposals were "appropriate arrangements"
within the meaning of section 7106(b)(3) of the Statute. The Agency
asserted that the request for reconsideration should be granted because
it had been unable to address the "appropriate arrangements" arguments
made by the Union in its response to the Agency's original statement of
position.
Because the Authority's records did not show that the Agency was
properly served with the Authority's Order, we granted the Agency's
motion on January 25, 1991 to reconsider our conclusions in 38 FLRA 1068
that Proposal 1 and Proposal 5, section B constituted appropriate
arrangements. We granted the Agency the opportunity to file a
supplemental statement of position addressing whether Proposal 1 and
Proposal 5, section B are "appropriate arrangements" for employees
adversely affected by the Agency's drug testing program. The Union was
granted the opportunity to respond to the Agency's supplemental
submission. The Agency submitted a supplemental brief. The Union did
not respond to the Agency's supplemental submission.
For the reasons stated below, we find that Proposal 1 is negotiable
as an appropriate arrangement under section 7106(b)(3) of the Statute.
Further, we find that Proposal 5, section B constitutes an appropriate
arrangement under section 7106(b)(3) and is negotiable.
II. Proposal 1
Section 44.01 General
The employer agrees that the establishment and administration of its
drug abuse testing program will be done in strict compliance with the
U.S. Constitution and all applicable laws, rules and regulations and
this agreement.
A. Agency Contentions
The Agency contends that the Authority's conclusion in 38 FLRA 1068
that Proposal 1 constitutes an "appropriate arrangement" under section
7106(b)(3) of the Statute is inconsistent with the wording of the
Statute and its legislative history. The Agency also contends that the
Authority's decision circumvents the Supreme Court's decision in
Department of the Treasury, Internal Revenue Service v. FLRA, 110 S.
Ct. 1623 (1990) (IRS v. FLRA). The Agency argues that because there are
no external limitations on the exercise of management's rights under
section 7106(a)(1) that are enforceable by a union under the Statute,
"the 'procedures' and 'arrangements' described in Section 7106(b) cannot
be written simply to enforce compliance with applicable laws, rules and
regulations, or merely to incorporate them into a collective bargaining
agreement." Agency's Supplemental Statement of Position (Agency's
Statement) at 6.
According to the Agency, "(t)he question is not whether agencies of
the Government must uphold the law or whether it is appropriate to do
so, but rather who is empowered to enforce law against them." Id. The
Agency argues that Congress "mandated that unions could not, through the
grievance procedure, enforce requirements of any kind, whether or not
they were contained in applicable law, pertaining to those management
rights set forth in Section 7106(a)(1)." Id. at 6-7 (emphasis in
original, footnote omitted). The Agency asserts that if a union could
enforce compliance with law "merely by calling it an 'appropriate
arrangement,' a union could easily accomplish precisely what Congress
prohibited." Id. at 7. The Agency maintains that "compliance with laws
and regulations cannot constitute 'procedures' and 'arrangements' within
the meaning of (section) 7106(b)(3)." Id. at 8.
The Agency states that in IRS v. FLRA, the Supreme Court held the
proposal in that case to be nonnegotiable "for the simple reason that
'it would enable the grievance examiner to . . . dictat(e) the
substantive criteria for the contracting out decision.'" Id. at 8
(citing 110 S. Ct. at 1627 n.3). The Agency asserts "(t)hat is
precisely what the union's proposal would do in the present case. The
proposal simply would authorize the grievance examiner to identify any
law he or she considers appropriate and impose that law as the criteria
by which the agency must exercise its management rights." Id. (footnote
omitted). The Agency argues that "(s)ince the Authority's . . .
decision in this matter is inconsistent with the Supreme Court's
reasoning, as expressed in footnote 3, of the (IRS v. FLRA) opinion,
that decision should be reversed." Id.
Finally, the Agency contends that Proposal 1 is not an appropriate
arrangement under section 7106(b)(3) because "it describes an attempt to
preclude adverse impact in the first place." Id. at 10. The Agency
states that under the Statute, an employee has not been adversely
affected by the exercise of a management right until the right has been
exercised. The Agency argues that an employee would be adversely
affected with regard to drug testing "only when his urine tested
positive, that is, after the testing was complete and the positive
result obtained." Id. The Agency asserts that Proposal 1 "is designed
not to deal with the aftermath of the exercise of the management right,
but to prevent adverse impact from occurring at all." Id. According to
the Agency, "(t)his broad brush approach does not provide arrangements
specifically for adversely affected employees, but for all employees,
tested or not, and adversely affected or not." Id. at 11. The Agency
states that "(s)ection 7106(b)(3) was not designed to achieve that
purpose." Id.
B. Analysis and Conclusions
We find that the Agency's arguments concerning our application of IRS
v. FLRA and our interpretation of section 7106(b)(3) of the Statute
provide no basis for us to change our decision in this case. Our
conclusions in 38 FLRA 1068 are based on the literal wording and
structure of section 7106 of the Statute. Section 7106 unequivocally
establishes that management's rights under section 7106 are "subject to"
the Union's right to negotiate "appropriate arrangements" under section
7106(b)(3). See American Federation of Government Employees, Local 2782
v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (opinion by then-Judge Scalia).
The Agency claims that Congress, by the wording of section 7106(b)(3),
intended management's rights under section 7106 to be subject to
"appropriate arrangements" only to the extent that an "arrangement" does
not enforce requirements in law. However, the limitation asserted by
the Agency appears nowhere in the wording of section 7106. Therefore,
we find that the Agency's interpretation of section 7106 is not
consistent with the wording of that section.
On reconsideration, we reaffirm our conclusions in 38 FLRA 1068 that
the Statute: (1) does not require management to exercise its rights
under section 7106(a)(1) in accordance with external legal limitations;
and (2) provides that management's rights under section 7106(a)(1) are
"subject to" section 7106(b) of the Statute. 38 FLRA at 1076-77. Our
conclusions are based on the literal wording of section 7106 and are
consistent with the Supreme Court's decision in IRS v. FLRA.
The Agency contends that Proposal 1 does not constitute an
appropriate arrangement because it is not designed to deal with the
adverse effect of the exercise of management's right to determine
internal security practices. According to the Agency, the proposal
attempts to prevent an adverse impact on employees of the exercise of
that right from occurring at all. The Agency argues that an employee is
adversely affected by the Agency's drug testing program only when the
employee's urine tests positive for illegal drug use, not by the
imposition of the program itself.
In National Federation of Federal Employees, Local 2096 and U.S.
Department of the Navy, Naval Facilities Engineering Command, Western
Division, 36 FLRA 834, 840-41 (1990) (NFEC, Western Division), we found
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. We stated that in future
cases, we would analyze a proposal seeking to ameliorate the adverse
effects resulting from the exercise of a management right consistent
with the framework discussed in West Point Elementary School Teachers
Association, NEA and United States Military Academy, West Point
Elementary School, 34 FLRA 1008 (1990). Under that framework, we first
determine whether the proposal is an "arrangement" for employees
adversely affected by the exercise of management rights by examining the
effects or foreseeable effects on employees which flow from the exercise
of those rights. 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 a management right.
See NFEC, Western Division, 36 FLRA at 841.
In 38 FLRA 1068, we found that there are reasonably foreseeable
adverse effects on employees of the exercise of the Agency's right to
determine its internal security practices by implementing a drug testing
program. We determined that Proposal 1 is intended as an "arrangement"
for employees adversely affected by the exercise of the Agency's right.
Because there were reasonably foreseeable adverse effects on employees
of the exercise of the Agency's right to implement a drug testing
program and Proposal 1 was intended to be an "arrangement" for employees
adversely affected, we examined the proposal to determine whether it
excessively interfered with management's rights. We found that, on
balance, the benefits of Proposal 1 to employees outweighed the adverse
impact of having to comply with applicable law, rules and regulations on
the Agency's right. Therefore, we concluded that Proposal 1 did not
excessively interfere with the Agency's right and was a negotiable
appropriate arrangement under section 7106(b)(3). Id. at 1078.
The Agency's argument on reconsideration that Proposal 1 cannot
constitute an appropriate arrangement because it addresses effects on
employees of the Agency's drug testing program that are unrelated to a
positive drug test result provides no basis for changing our conclusion
that Proposal 1 constitutes an appropriate arrangement. Therefore, on
reconsideration, consistent with NFEC, Western Division, we reaffirm our
findings that: (1) there are reasonably foreseeable adverse effects on
employees of the exercise of the Agency's right to determine its
internal security practices by establishing a drug testing program; and
(2) Proposal 1 is intended as and constitutes an "arrangement," within
the meaning of section 7106(b)(3), for employees adversely affected by
the exercise of the Agency's right to establish a drug testing program.
Because the Agency has presented no arguments that would change the
balance of the benefits to employees as weighed against the interference
with the Agency's rights, we reaffirm our conclusion in 38 FLRA 1068
that Proposal 1 does not excessively interfere with the Agency's right
to determine internal security practices under section 7106(a)(1) of the
Statute. Consequently, we conclude that Proposal 1 is a negotiable
"appropriate arrangement" under section 7106(b)(3) of the Statute.
III. Proposal 5, Section B
Section 44.05 Methods and Procedures for Testing
. . . .
The employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
. . . .
B. Tests will be given in a sanitary, secluded area, which provides
the employee with privacy.
A. Agency Contentions
The Agency states that "(e)ven if we accept the Authority's
representation that the proposal imposes the same requirements as
applicable laws, executive orders, regulations and guidelines, the
proposal cannot be negotiable." Agency's Statement at 12. The Agency
states that section 7106(a)(1) provides that, subject to section 7106(
b), nothing in the Statute shall affect management's right to determine
internal security practices. The Agency contends that application of
the Supreme Court's decision in IRS v. FLRA "mandates that a proposal is
non-negotiable if it would permit enforcement through the negotiated
grievance procedure of a requirement imposed by external law, rule,
regulation, executive order or other authority." Id. The Agency argues
that because section B of Proposal 5 "implicates internal security
practices" and "parrots applicable external authorities" section B is
nonnegotiable. Id. at 12-13. The Agency also contends that section B
does not constitute an appropriate arrangement for adversely affected
employees because "this proposal's effects are not directed toward
adversely affected employees, but to all those who are tested, whether
or not they are adversely affected." Id. at 13.
B. Analysis and Conclusions
In 38 FLRA 1068, the Agency contended that section B of Proposal 5
was inconsistent with Executive Order No. 12564. We found that section
B was consistent with the Executive Order and the final Guidelines, 53
Fed. Reg. 11, 970-89. Therefore, we concluded that "(i)f the decision
to assign an observer to monitor an employee urine sample does not
constitute the exercise of management's right under section 7106(a)(1),
section B is negotiable because it would not directly interfere with the
exercise of a management right." 38 FLRA at 1098-99. We also stated:
On the other hand, if the decision to assign an observer
constitutes the exercise of management's right under section
7106(a)(1), the limitation imposed on the exercise by the
incorporation of the Executive Order standard in section B would .
. . directly interfere with that right.
However, section B would nevertheless be negotiable as an
appropriate arrangement under section 7106(b)(3) of the Statute.
Id. at 1099. On reconsideration, the Agency argues that our conclusion
that section B would nevertheless be negotiable as an appropriate
arrangement is incorrect.
The Agency repeats the arguments made with regard to Proposal 1 that
the Authority misapplied IRS v. FLRA and misinterpreted section 7106(
b)(3) to "permit enforcement through the negotiated grievance procedure
of a requirement imposed by external law, rule, regulation, executive
order or other authority." Agency's Statement at 12. Inasmuch as we have
rejected those arguments, we will not address those arguments in our
analysis of section B.
Also, we considered and rejected the Agency's contention that
employees are adversely affected by the Agency's drug testing program
only when an employee is determined to have tested positive for illegal
drug use after drug testing has occurred. Therefore, we reject the
Agency's contention that, "for the reasons more fully discussed with
respect to Proposal 1," section B of Proposal 5 cannot constitute an
"appropriate arrangement" because the "proposal's effects are not
directed toward adversely affected employees, but to all those who are
tested, whether or not they are adversely affected." Id. at 13.
As we found above, there are reasonably foreseeable adverse effects
on employees resulting from the exercise of the Agency's right to
implement a drug testing program apart from a positive drug test result.
Section B of Proposal 5 is intended to alleviate adverse effects on
employees which are associated with the urine collection procedures of
the Agency's drug testing program. Thus, section B is intended as an
arrangement for employees adversely affected by the urine collection
requirements of the Agency's drug testing program. The limitation
imposed on the exercise of the Agency's right by section B is imposed on
the Agency by law. We conclude, therefore, consistent with our
reaffirmation of our holding as to Proposal 1, that section B of
Proposal 5 would not excessively interfere with the exercise of the
Agency's right. 38 FLRA at 1099.
Because the Agency has provided no basis for us to change our
decision in 38 FLRA 1068 as to section B of Proposal 5, we conclude that
if the decision to assign an observer constitutes the exercise of
management's right under section 7106(a)(1), the limitation imposed on
the exercise of that right by section B of Proposal 5, nevertheless,
would be negotiable as an appropriate arrangement under section 7106(
b)(3) of the Statute.
IV. Order
The Agency shall, upon request, or as otherwise agreed to by the
parties, bargain on Proposal 1 and section B of Proposal 5. /*/
FOOTNOTES
(*) In finding the proposals to be negotiable, we make no judgment as
to their merits.
39 FLRA 1238
39 FLRA NO. 106
Dept. of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and
NAGE, Local R4-19, Case No. 0-AR-1982 (39 FLRA No. 56) (Decided March
15, 1991)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
MOTION FOR RECONSIDERATION
EXTRAORDINARY CIRCUMSTANCES
DIGEST NOTES
The Authority denied the motion for reconsideration of its earlier
decision in which it set aside the Arbitrator's amended award that
reduced the grievant's suspension to a written warning and awarded
backpay, concluding that the Union had not established extraordinary
circumstances within the meaning of the regulations. In the Authority's
view, the Union's arguments constituted nothing more than disagreement
with and an attempt to relitigate the merits of the earlier decision.
Case No. 0-AR-1982 (39 FLRA No. 56 (199))
U.S. DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD PORTSMOUTH,
VIRGINIA
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R4-19
(Union)
ORDER DENYING MOTION FOR RECONSIDERATION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on the Union's motion for
reconsideration of the Authority's decision in 39 FLRA No. 56 (1991).
The Activity 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 request.
II. The Decision in 39 FLRA No. 56
In 39 FLRA No. 56, we set aside the Arbitrator's amended award that
reduced the grievant's suspension to a written warning and awarded
backpay. In his original award in U.S. Department of the Navy, Norfolk
Naval Shipyard, Portsmouth, Virginia and National Association of
Government Employees, Local R4-19, 36 FLRA 304 (1990) (Norfolk Naval
Shipyard), the Arbitrator sustained the grievance over a 14-day
suspension and awarded backpay to the grievant only if the grievant met
certain conditions. After we set aside the award, the Union
unilaterally requested the Arbitrator to issue a new decision in Norfolk
Naval Shipyard. The Arbitrator issued an amended award that reduced the
grievant's suspension to a written warning and awarded backpay.
In 39 FLRA No. 56, we found that the Arbitrator exceeded his
authority because he had no jurisdiction to amend the award. We
concluded, based on our decisions in Social Security Administration and
American Federation of Government Employees, AFL-CIO, 32 FLRA 806, 808
(1988) and Health Care Financing Administration, Department of Health
and Human Services and American Federation of Government Employees,
Local 1923, 35 FLRA 274, 281-82 (1990), that, unless both parties
request an arbitrator to reopen the matter, an arbitrator is precluded
from reopening and modifying an award which the Authority has set aside.
Therefore, we concluded that the Arbitrator exceeded his authority by
issuing an amended award, and we set aside the amended award.
III. The Union's Motion fo Reconsideration
The Union contends that there are extraordinary circumstances
warranting reconsideration. The Union maintains that the Authority's
decision to set aside the Arbitrator's award appears to leave the
grievant without a decision on the merits or a remedy. The Union states
that "(s)uch a consequence could not be intended by the Authority, and
would clearly be inequitable." Motion for reconsideration at 1.
The Union also maintains that it has "unilateral authority pursuant
to Article 20, Section 1 of the (n)egotiated (a)greement to proceed to
arbitration without the (A)gency's concurrence." Id. Therefore, the
Union argues that, once the Agency refused to jointly request
arbitration, it was permissible for the Union to unilaterally proceed to
arbitration in this case.
IV. Analysis and Conclusion
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 2419.17 to warrant reconsideration of our
decision in 39 FLRA No. 56.
The Union's arguments constitute nothing more than disagreement with
and an attempt to relitigate the merits of our decision in 39 FLRA No.
56 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
arguments were fully addressed in our decision in 39 FLRA No. 56.
Accordingly, we will deny the request.
V. Order
The Union's motion for reconsideration is denied.
39 FLRA 1225
39 FLRA NO. 105
Dept. of Defense, Delaware National Guard, Wilmington, Deleware and
Association of Civilian Technicians (Quinn, Arbitrator), Case No.
0-AR-1895 (Decided March 15, 1991)
STATUTE
7122(a)
7106(a)(2)(C)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
EXCEPTIONS PROPERLY FILED
STANDING TO FILE -- DEPARTMENTAL FILING
EXCEEDING AUTHORITY
RIGHT TO SELECT
AGENCY REGULATIONS
INCONSISTENT WITH THE AGREEMENT
DIGEST NOTES
The grievance claimed that the Agency violated the agreement when it
published and distributed an Active Guard/Reserve (AGR) vacancy
announcement simultaneously with a civilian technicians vacancy
announcement. The Arbitrator sustained the grievance and ordered the
Agency to honor the agreement by: (1) publishing only civilian job
announcements for each vacancy; (2) complying with the negotiated areas
of consideration described in the agreement; (3) rescinding all
promotion selections made as a result of improperly published job
vacancy announcements; (4) reannouncing each job vacancy correctly;
and (5) making selections properly in accordance with the agreement.
The Arbitrator also retained jurisdiction over implementation of the
award.
On an procedural issue, the Authority rejected the Union's claim that
the Department of Defense does not have standing to file exceptions
because it is not the employer, as defined in the agreement, and because
it was not a party to the arbitration proceeding. The Authority noted
in this regard that there is nothing in the record that indicates the
exceptions were not authorized by the Agency and that although the
exceptions were filed on behalf of DoD, the exceptions were filed by the
Director of Personnel of the appropriate National Guard Bureau Office.
Additionally, the Authority noted that nothing in its regulations
requires exceptions to be filed solely by a party's representative at an
arbitration hearing.
On the merits, the Authority found that the Arbitrator did not exceed
his authority by ruling on matters not before him, concluding that the
award is directly responsive to the issues as the Arbitrator framed
them. The Authority also found that the award does not abrogate the
Agency's section 7106(a)(2)(C) right to select. Instead, the Arbitrator
enforced a provision of the agreement which constitutes an arrangement
for employees adversely affected by the exercise of management's right
to select applicants from a source outside the unit.
The Authority found that the award is not deficient because it is
inconsistent with an Agency regulation. Although the Authority found
that the award did conflict with the regulation cited, that regulation
is inconsistent with the agreement which governs the same matter. The
Authority noted its precedent holding that where an award conflicts with
agency rules or regulations, such conflict will provide a basis for
finding the award deficient when such rules or regulations govern the
disposition of the matter resolved by the award and the rules or
regulations do not conflict with provisions of the agreement. However,
a provision that has become part of an agreement takes precedent over
agency rules and regulations with respect to the matters to which they
both apply.
Finally, the Authority found that the portion of the award requiring
the Agency to rescind all promotion selections is inconsistent with
government-wide regulations, particularly FPM Chapter 335, appendix A,
section A-4b, noting the absence of the required showing that the
selections were defective. Accordingly, the award was modified to
strike the clause requiring the rescinding of the promotions made as a
result of improperly published job vacancy announcement.
Case No. 0-AR-1895
U.S. DEPARTMENT OF DEFENSE DELAWARE NATIONAL GUARD WILMINGTON,
DELAWARE
(Agency)
and
ASSOCIATION OF CIVILIAN TECHNICIANS
(Union)
DECISION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Francis X. Quinn 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 Union filed a grievance claiming that the Agency violated the
parties' collective bargaining agreement when it published and
distributed an Active Guard/Reserve (AGR) vacancy announcement
simultaneously with a civilian technician vacancy announcement for the
position of Fabric Worker WG-3105-09. The Arbitrator sustained the
grievance and ordered the Agency to honor the terms of the parties'
collective bargaining agreement by: (1) publishing only civilian job
announcements for each vacancy; (2) complying with the negotiated areas
of consideration described in the parties' agreement; (3) rescinding
all promotion selections made as a result of improperly published job
vacancy announcements; (4) reannouncing each job vacancy correctly;
and (5) making selections properly in accordance with the provisions of
the parties' agreement. Award at 11-12. The Arbitrator also retained
jurisdiction over implementation of the award.
For the following reasons, we conclude that the portion of the
Arbitrator's award directing the Agency to rescind all promotion actions
is deficient. Accordingly, we will modify that portion of the award.
We deny the Agency's exceptions as to the balance of the award.
II. Background and Arbitrator's Award
The Union filed a grievance claiming that the Agency violated Article
XXI, Section 10 of the parties' collective bargaining agreement by
publishing and distributing an AGR vacancy announcement simultaneously
with a civilian technician vacancy announcement for the same position.
According to the Arbitrator, the result of the Agency's simultaneous
publication and distribution of an AGR and civilian technician vacancy
announcements was that AGR personnel, who are not members of the
bargaining unit, were provided equal standing with bargaining unit
members for immediate consideration and possible selection for the
vacancy.
In its grievance, the Union also claimed that the Agency violated
Article XXI, Section 5 of the parties' agreement by failing to require
the same minimum job qualifications and experience requirements for AGR
personnel as required for civilian employees in the bargaining unit.
Finally, the Union amended its grievance to include a number of
additional alleged violations claiming that the violations were ongoing
and cumulative because the Agency continued to unilaterally publish AGR
and civilian technician job announcements simultaneously.
The Arbitrator stated the issues as follows:
1. Was the Agency obligated by Contract and Federal Labor Law
to notify and discuss with the Union, the initiation of AGR job
vacancy announcements?
2. Does the Agency violate the Collective Bargaining Agreement
by simultaneously publishing civilian and AGR job vacancy
announcements?
Award at 4.
Before the Arbitrator, the Agency contended that Air National Guard
Regulation (ANGR) 35-03 mandated the simultaneous publication of a
separate job vacancy announcement for AGR personnel in order to give AGR
personnel equal treatment with bargaining unit members in consideration
for existing vacancies and in order to ensure that the upward mobility
of AGR personnel was not blocked.
The Arbitrator rejected the Agency's argument. According to the
Arbitrator, "(t)he record indicates that the Agency has turned its back
on the Collective Bargaining Agreement" by attempting to "implement
under the umbrella of a military regulation()" a matter it could not
expect to accomplish through negotiations. Id. at 8. The Arbitrator
further found that although the Agency contended that it must follow the
mandate of ANGR 35-03, the Agency failed to "adequately justify its
implementation only in the Air Guard program." Id.
The Arbitrator noted that under the Statute and Authority precedent,
rules and regulations issued after a collective bargaining agreement
becomes effective, except for Government-wide rules and regulations
concerning prohibited personnel practices, cannot nullify or supersede
the terms of that agreement. The Arbitrator also noted that the Agency
presented no testimony or evidence to rebut the Union's contention that,
contrary to the procedures contained in the parties' agreement, Agency
officials were considering AGR applicants simultaneously with bargaining
unit applicants. Further, the Arbitrator found that as three
consecutive collective bargaining agreements addressed technician
vacancy announcements and established specific procedures for
considering nonbargaining unit applicants, "(t)here is a ripened past
practice affecting conditions of employment" of bargaining unit members
which "cannot be unilaterally changed." Id. at 10.
According to the Arbitrator, the Agency was attempting to "use a
military regulation with no previously determined compelling need or
status as a governmentwide rule, to alter the intent of the Collective
Bargaining Agreement and to circumvent federal labor law." Id. at 10-11.
The Arbitrator found that nothing in ANGR 35-03 suggested "disregard
for existing lawful agreements or, as in this case, the complete
abandonment for a history of three separate contracts addressing
competitive area language." Id. at 11.
Consequently, the Arbitrator concluded that the issuance of dual
announcements violated "the Merit Promotion and Placement article in the
Contract" and that the unilateral issuance of dual announcements
"abrogated the bargaining rights of the exclusive representative." Id.
Accordingly, the Arbitrator sustained the grievance and ordered the
Agency to:
honor the terms of the Agreement by publishing only civilian job
announcements for every job vacancy; comport with the negotiated
areas of consideration described in the Contract; rescind all
promotion selections made as a result of improperly published job
vacancy announcements; and order each job reannounced correctly
and selections properly made in accordance with the provisions of
the Contract.
Id. at 11-12. The Arbitrator also retained jurisdiction over
implementation of the award.
III. Agency's Exceptions
The Agency contends that the award violates law and existing
regulations.
First, the Agency contends that it "has the unilateral right to issue
job vacancy announcements to recruit AGR (military personnel) for
vacancies and to select military personnel for vacancies under" section
7106(a)(2)(C)(ii) of the Statute. Exceptions at 2 (emphasis in
original). In support, the Agency relies on Department of the Treasury,
Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 857 F.2d 819 (D.C. Cir. 1988) (Department of the Treasury).
Further, the Agency notes that the parties' collective bargaining
agreement does not apply to military personnel, who are excluded from
coverage of the Statute by section 7103(a)(2)(B)(ii) of the Statute.
The Agency asserts, therefore, that "(i)t is perfectly proper that AGR
announcements be issued concurrently with technician announcements as
required by ANGR 35-03 as such a procedure neither violates law nor the
collective bargaining agreement." Exceptions at 2. The Agency concludes
that "the arbitrator's decision that management violated the contract
and abrogated the bargaining rights of the exclusive representative must
be reversed since military matters are neither negotiated under the law
nor does the arbitrator have authority to rule on them." Id.
Second, the Agency claims that the Arbitrator's award "is in direct
conflict with ANGR 35-03(.)" Id. According to the Agency, ANGR 35-03
requires that vacant jobs be advertised to both technicians and AGR
personnel and that both groups be considered concurrently. The Agency
argues that as the Arbitrator's award directs that only civilian job
announcements be issued, the award is inconsistent with ANGR 35-03. The
Agency asserts that section 7122 of the Statute requires arbitration
awards to be consistent with all applicable laws, rules and regulations.
Consequently, the Agency contends that the award is deficient under
section 7122 of the Statute.
Third, the Agency argues that, insofar as the award requires the
Agency to rescind all promotion selections made as a result of
improperly published vacancy announcements, the award violates its right
to select under section 7106(a)(2)(C) of the Statute. In this regard,
the Agency claims that the Arbitrator's award lacks any findings or
conclusions that the incumbents of the positions involved were
unqualified for their positions or could not have been selected. The
Agency contends that Authority precedent establishes that in order to
direct the promotion of a grievant, an arbitrator must reconstruct a
promotion action to show that, absent the unwarranted actions, the
grievant would have been selected. According to the Agency, "it follows
that the arbitrator would also have to reconstruct the promotion action
to show that specific individuals would not have been selected, absent
the 'unwarranted actions', to order those selectees removed from the
disputed positions." Id. at 3 (emphasis in original). The Agency
concludes, therefore, that as the Arbitrator "totally failed" to make
the appropriate findings, the award conflicts with section 7106(a)(2)(C)
of the Statute.
Finally, the Agency contends that "(b)y ordering the rescission of
all promotion selections, the arbitrator further exceeded his authority
and scope of jurisdiction by ruling on matters not before him." Id.
According to the Agency, although the grievance submitted to the
Arbitrator concerned only the Fabric Worker WG-3105-09 vacancy, the
Arbitrator ordered the rescission of other personnel selections which
are not encompassed by the grievance. Therefore, the Agency claims that
the award must be reversed because the Arbitrator ruled on matters not
within his jurisdiction.
IV. Union's Opposition
As a preliminary matter, the Union notes that although the parties to
the collective bargaining agreement are the Union and the Adjutant
General of Delaware, the Agency's exceptions were filed with the
approval of and on behalf of the Department of Defense. The Union
argues that as the Adjutant General of Delaware is the employer, as
defined by the parties' collective bargaining agreement, the Adjutant
General is the appropriate party to file exceptions under section 7122
of the Statute. In addition, the Union contends that the Delaware
National Guard, not the Department of Defense, was a party to the
arbitration. Consequently, the Union claims that the Department of
Defense is "not a 'party to arbitration' entitled" to file exceptions
under section 7122 of the Statute. Opposition at 4-5 n.1.
As to the merits of the Agency's exceptions, the Union claims that
the Agency's arguments are "practically identical to arguments (the)
Authority has already rejected in previous cases." Id. at 1. According
to the Union, the Authority has found that provisions similar to the
provision in dispute in this case, which merely entitles bargaining unit
employees to be considered for vacancies before nonbargaining unit
employees, are negotiable procedures under the Statute. The Union cites
Association of Civilian Technicians, Inc., Pennsylvania State Council
and Adjutant General, Department of Military Affairs, Pennsylvania, 4
FLRA 77 (1980) and Association of Civilian Technicians Delaware Chapter
and National Guard Bureau, Delaware National Guard, 3 FLRA 57 (1980).
As to the Agency's claim that the award violates section 7106 of the
Statute, the Union argues that a similar argument was raised and
rejected in Association of Civilian Technicians and Pennsylvania
National Guard, 29 FLRA 1318 (1987) (Pennsylvania National Guard).
According to the Union, in Pennsylvania National Guard, the same
arbitrator involved in the instant case directed the agency to rerun a
selection action in circumstances where the agency filled a vacancy with
an AGR employee without complying with the announcement procedures
contained in the parties' collective bargaining agreement. The Union
contends that the award in Pennsylvania National Guard was upheld by the
Authority because it was found to preserve management's discretion,
among other things, to make selections. The Union asserts that the
Arbitrator's award in this case also "preserves management's prerogative
to make its selection" and does "not order management to select any
specific individual or type of employee(.)" Opposition at 3.
Consequently, the Union argues that the Agency's position "represents
nothing more than a disagreement with the merits it already argued
before the arbitrator(.)" Id.
The Union also disputes the Agency's claim that the award is
inconsistent with ANGR 35-03. First, the Union notes that the amended
regulation, requiring the simultaneous posting of civilian technician
and AGR vacancy announcements and the simultaneous consideration of
civilian technician and AGR personnel for vacancies, was promulgated
after the parties' collective bargaining agreement became effective.
The Union contends that the Arbitrator "properly concluded that this .
. . regulation could not retroactively vitiate any contrary procedures
contained in the parties' collective bargaining agreement." Id. at 4.
Second, the Union argues that nothing in ANGR 35-03 expressly
"empowers management to ignore existing provisions of a collective
bargaining agreement when implementing the regulation." Id. According
to the Union, express provisions of the regulation provide that the
Adjutant General is responsible for implementing the regulation
consistent with any arguably inconsistent terms of a collective
bargaining agreement.
Third, the Union argues that ANGR 35-03 applies only to Air National
Guard members serving in a full-time military duty status. The Union
contends, therefore, that "(a)s this regulation governs only 'full-time
military duty status' personnel, not civilian technicians who do not
serve in full-time military status, the regulation cannot supersede or
impair provisions of the collective bargaining agreement . . .
applicable to technicians." Id. at 5 (emphasis in original).
Finally, the Union argues that the Arbitrator's award only compels
"the Agency to honor its contractual commitments regarding the
procedures to be followed in making promotions. . . . (without)
impair(ing) management's right to select employees from any source and
(without) dictat(ing) to the employer who must be selected." Id. at 6.
The Union concludes that "(b)y rescinding the selections made under the
defective procedure employed by management, and ordering management to
rerun the process in compliance with the contract's procedures, the (A)
rbitrator was acting well within his remedial authority." Id.
V. Analysis and Conclusions
A. The Exceptions Were Properly Filed
We reject the Union's claim that the Department of Defense does not
have standing to file exceptions because it is not the employer, as
defined in the parties' collective bargaining agreement, and because it
was not a party to the arbitration proceeding. First, there is nothing
in the record before us that indicates the exceptions were not
authorized by the Agency. Second, although the exceptions were filed on
behalf of the Department of Defense, the exceptions were filed by the
Director of Personnel, Office of Technician Personnel, Departments of
the Army and the Air Force, National Guard Bureau. Exceptions at 1.
The Authority has long held that national headquarters of agencies may
file exceptions on behalf of their organizational elements. See, for
example, Puget Sound Naval Shipyard and Bremerton Metal Trades Council,
33 FLRA 56, 58 (1988). Finally, nothing in our Rules and Regulations
requires exceptions to be filed solely by a party's representative at an
arbitration hearing. Accordingly, a party is free to designate
different representatives fo different purposes. See, for example, U.
S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia
and National Association of Government Employees, Local R4-19, 36 FLRA
304, 308-9 (1990). Accordingly, the Agency's exceptions properly are
before us.
B. The Arbitrator Did Not Exceed His Authority
Contrary to the Agency's claim, the Arbitrator did not exceed his
authority by ruling on matters not before him. 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 or awards
relief to persons who did not file a grievance on their own behalf and
did not have the union file a grievance for them. See, for example,
General Services Administration, Region VII, Fort Worth, Texas and
American Federation of Government Employees, Council 236, 35 FLRA 1259,
1265-66 (1990). The grievance filed in this case originally concerned
one Fabric Worker WG-3105-09 position. The Union, however, amended its
original grievance to allege a number of additional violations.
In addition, the Arbitrator stated that one of the issues before him
was whether the Agency violated the parties' collective bargaining
agreement by simultaneously publishing civilian and AGR vacancy
announcements. There is no indication in the record that the parties
stipulated the issues to be resolved by the Arbitrator. In the absence
of such a stipulation, an arbitrator's formulation of the issues is
accorded substantial deference. For example, Department of Health and
Human Services, Social Security Administration, Birmingham, Alabama and
American Federation of Government Employees, Local 2206, 35 FLRA 830,
832 (1990). The award is directly responsive to the issues as the
Arbitrator framed them. Consequently, we find that the Agency has not
demonstrated that the Arbitrator's award relates to matters which were
not submitted to arbitration or encompasses persons who were not
included in the grievance. Accordingly, the Agency's assertion that the
Arbitrator exceeded his authority provides no basis for finding the
award deficient.
C. The Award Does Not Abrogate Section 7106(a)(2)(C) of the Statute
In Department of the Treasury, U.S. Customs Service and National
Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we
reexamined our approach to cases in which an agency contends that an
arbitrator's award, enforcing a provision of the parties' collective
bargaining agreement, is contrary to management's rights under section
7106(a). We held that when an agency makes such a contention we will
examine, as appropriate, the provision enforced by the arbitrator to
determine: (1) if it constitutes an arrangement for employees adversely
affected by the exercise of management's rights; and (2) if, as
interpreted by the arbitrator, it abrogates the exercise of a management
right. We explained that if it is evident that the provision
constitutes an arrangement and, as interpreted by the arbitrator does
not abrogate management's rights, the provision is within the range of
matters that can be bargained under the Statute. We also held that if
the arbitrator's interpretation does result in an abrogation of
management's rights under section 7106(a), the award will be found
deficient as contrary to law, but the contractual provision, susceptible
to a different and sustainable interpretation by a different arbitrator,
will not be affected.
We also noted in U.S. Customs Service, that an arbitrator's award is
deficient if it fails to draw its essence from the parties' agreement.
We encouraged the parties to set forth plainly and precisely the
arrangements to which they have agreed for employees adversely affected
by the exercise of management's rights. We held that when a party
establishes that the arbitrator's enforcement of the agreement does not
represent a plausible interpretation of the agreement, we will find the
award deficient. In such a circumstance, however, the award will be
found deficient because it fails to draw its essence from the agreement,
not because it conflicts with management's rights. Id. at 317-18.
Applying that approach in this case, we find that the Agency has not
established that the award is contrary to management's right to select
under section 7106(a)(2)(C) of the Statute. Instead, the Arbitrator has
enforced a provision of the parties' collective bargaining agreement
which constitutes an arrangement for employees adversely affected by the
exercise of management's right to select applicants from a source
outside the bargaining unit.
Although neither party submitted a copy of Article XXI, Section 10,
it appears from the record before us that Article XXI, Section 10
precludes the Agency from soliciting and considering for selection
applicants from outside the bargaining unit before bargaining unit
applicants are solicited and considered. As noted by the Agency, such a
restriction on the solicitation and consideration of applicants for
vacant positions directly interferes with management's right to select
under section 7106(a)(2)(C) of the Statute. See Department of the
Treasury. See also National Association of Government Employees, Local
R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990).
In our view, however, such a restriction constitutes an arrangement
for employees adversely affected by the exercise of management's right
to select under section 7106(a)(2)(C)(ii) of the Statute. As noted by
the Agency, AGR personnel are military personnel. Thus, to the extent
that AGR personnel are selected for bargaining unit vacancies, the
positions in question change from civilian to military, thereby reducing
opportunities for advancement and promotion for bargaining unit
employees. Consequently, we find that the Arbitrator enforced a
provision of the parties' collective bargaining agreement that
constitutes an arrangement for employees adversely affected by the
exercise of management's right to select.
Further, we find that Article XXI, Section 10, as interpreted and
applied by the Arbitrator, does not abrogate the Agency's right to
select from any appropriate source. In U.S. Customs Service, the
Authority held that an award "abrogates" a management right when the
award "precludes an agency from exercising" that right. U.S. Customs
Service, 37 FLRA at 314. The Arbitrator's award does not preclude the
Agency from exercising its right to solicit and consider applicants for
vacant positions from any appropriate source. Rather, the award only
requires the Agency to comply with Article XXI, Section 10 of the
parties' agreement by first soliciting and considering bargaining unit
applicants before soliciting and considering nonbargaining unit
applicants.
Based on the above, we reject the Agency's contention that the award
is deficient because it interferes with management's right to select
under section 7106(a)(2)(C) of the Statute.
D. The Award Is Not Deficient Because It Is Inconsistent with ANGR
35-03
In our decision in U.S. Department of the Army, Fort Campbell
District, Third Region, Fort Campbell, Kentucky and American Federation
of Government Employees, Local 2022, 37 FLRA 186 (1990) (Fort Campbell),
we held that where an arbitrator's award conflicts with agency rules or
regulations, such conflict will provide a basis for finding the award
deficient under section 7122(a)(1) of the Statute when such 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. In so
holding, however, we noted that a provision that has become part of a
collective bargaining agreement takes precedence over agency rules and
regulations with respect to matters to which they both apply.
According to the Agency, the Agency regulation involved in this case,
ANGR 35-03, requires concurrent solicitation and consideration of
civilian technician and AGR applicants for vacant bargaining unit
positions. The Arbitrator found, however, that Article XXI, Section 10
of the parties' collective bargaining agreement requires that bargaining
unit applicants be solicited and considered for selection for vacant
bargaining unit position before AGR or other nonbargaining unit
applicants are solicited and considered. Although we find that the
Arbitrator's award conflicts with ANGR 35-03, ANGR 35-03 is inconsistent
with a provision of the parties' collective bargaining agreement which
governs the same matter. Consequently, consistent with Fort Campbell,
we conclude that Article XXI, Section 10 takes precedence over the
conflicting requirements of ANGR 35-03. Therefore, we reject the
Agency's claim that the award is deficient because it is inconsistent
with ANGR 35-03.
E. The Portion of the Award Requiring the Agency To Rescind All
Promotion Selections Is Inconsistent With Government-Wide Regulations
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 Federal Personnel Manual (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. See, for example, American Federation of
Government Employees, Local 1960 and Department of the Navy, Development
Center, 26 FLRA 250 (1987). In this case, the Arbitrator made no
findings that the individuals selected for the positions in question
could not have been selected if the Agency had followed the procedures
set out in Article XXI, Section 10 of the parties' collective bargaining
agreement. The Arbitrator found only that the Agency had violated
Article XXI, Section 10 by simultaneously soliciting and considering AGR
personnel with bargaining unit employees for vacant bargaining unit
positions. Therefore, in the absence of the required showing that the
selections were defective, the award is deficient to this extent as
contrary to FPM Chapter 335, appendix A, section A-4. Compare U.S.
Department of Health and Human Services, Social Security Administration,
San Francisco Region and American Federation of Government Employees,
Council 147, 38 FLRA 1183, 1189 (1990) (award denying union's request
that incumbent be removed from a disputed position was not inconsistent
with FPM chapter 335, appendix A, section A-4b). We note, however, that
the Agency is obligated to comply with the balance of the award
requiring the Agency to (1) publish only civilian job announcements for
each vacancy; (2) comply with the negotiated areas of consideration
described in the parties' agreement; (3) reannounce each job vacancy
correctly; and (4) make selections properly in accordance with the
provisions of the parties' agreement.
F. Summary
In sum, we find that the Agency's exceptions are properly filed. We
reject the Agency's exceptions that the award is deficient because: (1)
the Arbitrator exceeded his authority; (2) the award is inconsistent
with section 7106(a)(2)(C) of the Statute; and (3) the award is
inconsistent with an applicable Agency regulation. However, we conclude
that insofar as the award requires the Agency to rescind all promotion
selections made as a result of improperly published job vacancy
announcements, the award is inconsistent with applicable Government-wide
regulations. Accordingly, we will modify the award by striking the
clause requiring the Agency to rescind all promotion selections made as
a result of improperly published job vacancy announcements.
VI. Order
The award is modified by striking the clause requiring the Agency to
rescind all promotion selections made as a result of improperly
published job vacancy announcements. The balance of the award is
sustained.
39 FLRA 1215
39 FLRA NO. 104
Dept. of the Army, Red River Army Depot, Texarkana, Texas and NAGE,
Local R14-52 (Woolf, Arbitrator), Case No. 0-AR-1837 (Decided March 15,
1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
ATTORNEY FEES
BACK PAY ACT
ALLEN CRITERIA
AUTHORITY OF THE ARBITRATOR
DIGEST NOTES
In a supplemental award, the Arbitrator denied the Union's motion for
attorney fees in connection with his original award. The Arbitrator
concluded that attorney fees were incurred; they were incurred by the
prevailing party; the award of fees in this instance would not be "in
the interest of justice" within the meaning of the Allen criteria; and
reasonableness of the fee charged is in question because of disparate
rulings and because of the Authority's ruling in NADC. The Arbitrator
further concluded that even if all Allen criteria were fully satisfied,
the overriding factor is the intent of the Parties in the agreement
between them, which the Arbitrator is bound by, along with the record
and the submission agreement. The Arbitrator concluded that the Agency
was not required by the Agreement to pay attorney fees and expenses
incurred by the Union. Accordingly, he denied the request.
The Authority found that the Arbitrator erred in concluding that
unless the provisions of the agreement specifically provided for the
granting of attorney fees he lacked jurisdiction to grant them. The
Authority had concluded that the Back Pay Act confers jurisdiction on an
arbitrator to consider a request for attorney fees either during the
arbitration or within a reasonable time after the arbitrator's decision
awarding backpay becomes final and binding. On the issue of entitlement
to backpay, the Authority found the award deficient because the
Arbitrator failed to address the Union's contention that an award of
fees is warranted because, by maintaining the action, a service was
rendered to the Federal work force, an additional criteria set forth in
NADC. Accordingly, the Authority remanded the matter to the parties to
request the Arbitrator to consider the Union's motion under the
criterion set forth in NADC concerning instances where there is either a
service rendered to the Federal work force or there is a benefit to the
public derived from maintaining the action.
Case No. 0-AR-1837
U.S. DEPARTMENT OF THE ARMY RED RIVER ARMY DEPOT TEXARKANA, TEXAS
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R14-52
(Union)
DECISION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on excepetions to the
supplemental award of Arbitrator Donald Austin Woolf filed on behalf of
the Union under section 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the Authority's Rules
and Regulations. The Agency did not file an opposition to the Union's
exceptions.
In his supplemental award, the Arbitrator denied the Union's motion
for attorney fees in connection with his original award. The Union
contends that the Arbitrator's denial of its request for attorney fees
is erroneous and contrary to law.
For the reasons discussed below, we conclude that the Arbitrator's
supplemental award is deficient. We will remand the matter of the
Union's request for attorney fees to the parties for further proceedings
consistent with this decision.
II. Background
The grievance in this case alleged that the Agency violated the
parties' collective bargaining agreement by not granting the grievant a
cash award for the exceptional/outstanding performance rating she
received on her annual performance evaluation. The dispute centered on
whether the recently executed agreement providing for such cash awards
applied to the grievant's performance evaluation. The Arbitrator
sustained the grievance, finding that because the Agency had acted on
the grievant's performance evaluation after the effective date of the
new agreement, the language of the new agreement was controlling. The
Arbitrator directed the granting of the cash award, citing the Back Pay
Act as the statutory authority for the Agency to provide such relief.
Original Award at 14.
The Union then filed with the Arbitrator a motion for an award of
attorney fees pursuant to the Back Pay Act. The Union, citing Allen v.
U.S. Postal Service, 2 MSPR 420 (1980) (Allen); O'Donnell v.
Department of the Interior, 2 MSPR 445 (1980) (O'Donnell); and other
cases, argued that: (1) the grievant had incurred attorney fees; (2)
the grievant was the prevailing party; and (3) an award of attorney
fees was warranted in the "interest of justice." With regard to the
interest-of-justice standard, the Union contended that the Agency's
action was clearly without merit, wholly unfounded and made in bad faith
and that the Agency knew or should have known it would not prevail.
The Union also contended, citing to Naval Air Development Center,
Department of the Navy and American Federation of Government Employees,
Local 1928, AFL-CIO, 21 FLRA 131 (1986) (NADC), that "(n)ot only was the
(A)gency's position without merit, by maintaining this action an
important service was rendered to the (F)ederal work force at the Red
River Army Depot, that is, uniformity in treatment." Motion for Attorney
Fees at 4.
The Union sought an award of attorney fees based on a lodestar
calculation. The Union submitted an affidavit attesting to the
qualifications of counsel, the hours worked, and the types of work
performed by counsel during the representation of the grievant. It also
provided a similar affidavit of his law clerk. The Union requested that
the attorney be compensated at the prevailing market rate and for
expenses.
The Agency opposed the award of attorney fees. It contended that the
parties' agreement does not provide for the award of fees. It further
contended that even if the agreement provided for such awards, the
criteria for an award of attorney fees found in the relevant authorities
were not met.
III. Arbitrator's Supplemental Award
The Arbitrator framed the issue before him as:
Is the Agency required by the Agreement between the Parties to pay
attorney's fees and expenses incurred by the Union in the
arbitration of grievances where the Union prevails, and, if so, in
what amount?
Supplemental Award at 3.
The Arbitrator noted that this case involves a violation of the
collective bargaining agreement. He found that "(w)hile arbitrators
have applied 'external law' in some instances, the practice is
controversial and not encouraged; moreover, there is little to suggest
that it is needed in the disposition of the issue herein." Id. at 12.
The Arbitrator ruled that the Agency was not required by the
agreement to pay attorney fees and expenses incurred by the Union in the
arbitration of grievances where the Union prevails. In support of this
ruling, the Arbitrator found that the collective bargaining agreement
makes no mention of legal fees or other expenses incurred by either
party and contains only the relatively uncommon provision that the
losing party pay the fee and expenses, if any, of the Arbitrator.
Further, he found that no evidence was provided by the Union, in the
form of past practice or bargaining history, to show that the payment of
attorney fees was intended or contemplated by the parties.
The Arbitrator also made findings as to whether attorney fees were
warranted under the Back Pay Act. In this regard, the Arbitrator found
that the tenor of statutory provisions and decisions of the Merit
Systems Protection Board (MSPB) and the Authority imply that attorney
fees should be awarded where there appears to be malice, gross
negligence, or serious procedural error on the part of an agency and
that the Back Pay Act specifically authorizes such awards in grievance
proceedings. He concluded that the record before him did not show
malicious intent or gross negligence on the part of the Agency. He also
found that it neither had been charged nor supported that the apparent
intent or the effect of the Agency's actions was to harass the Union, so
as to exhaust its scarce resources.
Further, the Arbitrator found that the Union's case failed to meet
the criterion of the award of fees being in the interest of justice.
The Arbitrator noted that the Union had the burden of proof to shw that
the personnel practice was prohibited, that the action was clearly
without merit or was wholly unfounded, that the action was in bad faith,
and that the Agency should have known it would not prevail.
The Arbitrator further concluded that his ruling that the Agency's
action was prohibited by the agreement did not lead to a finding that
"the requirements of the (Civil Service) Reform Act, the Back Pay Act,
(and the cases cited,) have automatically been met." Id. at 14. He
found that "(t)o so rule using external law as a basis rather than the
contract, the record, and the submission agreement would appear to
require that attorney fees of Union Counsel be paid in all instances
where the Union prevailed under all contracts between (agencies and
unions)." Id. The Arbitrator found that no effort has been made to show
that this was the intent of Congress, the Merit Systems Protection
Board, or the Authority. The Arbitrator found that the action of the
Agency was not a prohibited personnel practice within the meaning of
either the Civil Service Reform Act or the Back Pay Act.
In addition, the Arbitrator concluded that because the issue on the
merits involved a differing interpretation of the agreement by the
parties, the matter involved a good faith difference of opinion.
Further, the Arbitrator found that as the matter involved entitlement to
a benefit, no guilt or innocence, as in the Allen criteria, was at issue
and that the criterion concerning bad faith had not been met. As there
had been a substantial history of past practice and this was the first
time the Agency's conduct had been challenged in this regard, the
Arbitrator found the same reasoning applied to the criterion of
foreknowledge of the outcome of the case.
As to the reasonableness of the fee, the Arbitrator did not come to a
conclusion. However, he noted the difference between a case granting
actual expenses and one allowing market rates as a basis. The
Arbitrator noted that the case allowing market rates involved "clear
foreknowledge" by the agency of the likely outcome, in contrast to this
case, which did not. Id. at 11. He also stated that in this case NADC
requires a determination based on actual expenses. Id. at 12.
In summary, the Arbitrator made the following conclusions:
1. Attorney's fees were incurred;
2. They were incurred by the prevailing party;
3. The award of fees in this instance would not be "in the
interest of justice" within the meaning of the Allen criteria;
4. Reasonableness of the fee charged is in question because of
disparate rulings and because of the (Authority) ruling in (NADC).
Id. at 15. The Arbitrator further concluded that:
Even if all Allen criteria were fully satisfied, the overriding
factor is the intent of the Parties in the Agreement between them.
The Arbitrator is bound by that Agreement, the record, and the
submission agreement.
Id.
As the Arbitrator ruled that the Agency was not required by the
Agreement to pay attorney fees and expenses incurred by the Union, he
denied the Union's motion.
IV. Union Exceptions
The Union excepts to the Arbitrator's finding that the Agency was not
required by the agreement to pay attorney fees and expenses incurred by
the Union in connection with the arbitration, contending that the award
is contrary to law. The Union also excepts to the Arbitrator's other
findings that attorney fees were not warranted and that counsel was not
entitled to market rates for his fee.
The Union argues that in Philadelphia Naval Shipyard and Philadelphia
Metal Trades Council, 32 FLRA 417 (1988) (Philadelphia Naval Shipyard),
the Authority addressed the same issues as presented here and determined
that the Back Pay Act confers jurisdiction on an arbitrator to consider
an attorney fee request. In addition, it argues that Article II,
Section 1 of the parties' agreement makes all laws, including the Back
Pay Act, applicable to the agreement. The Union contends that the
Arbitrator's award must be reversed because it hinged on his erroneous
opinion that the Agency would not be required to pay attorney fees
unless such a provision was specifically provided for in the agreement.
Further, the Union disputes the Arbitrator's finding that fees were
not warranted in the interest of justice. It argues that the Agency's
action constituted an "unjustified and unwarranted" action which the
Union was forced to correct at its expenses. The Union claims that the
Arbitrator specifically found that the Agency's action in making cash
awards to some employees of the same grade receiving the same
performance rating but not to others was "arbitrary and capricious" on
its face. It argues that such a finding would warrant fees. In
addition, it contends, the Agency's refusal to make a cash award to the
grievant was in direct violation of the clear language of the current
agreement and was unreasonable and unwarranted. The Union argues that
the new agreement imposed a measure of consistency on the Agency and
that it was clearly without merit for the Agency to attempt to impose
the prior practice beyond the effective date of the new agreement. In
this regard, it contends that the Agency's refusal to follow the plain
language of the agreement was in bad faith and wholly unfounded. It
also contends that the Agency should have known it would not prevail.
The Union also reiterated its position that under NADC it is entitled
to attorney fees where there is a service rendered to the Federal work
force or there is a benefit to the public derived from maintaining an
action. It contends that not only was the Agency's position without
merit, but that by maintaining the action in this case and obtaining
uniformity in treatment, the Union rendered an important service to the
Federal work force at the Agency.
The Union also contends that its counsel was entitled to the
prevailing market rate for his fees. In this regard, it maintains that
the counsel is in private practice and that no fees are to be reimbursed
to the Union.
V. Analysis and Conclusions
We conclude that the Arbitrator's denial of the Union's request for
an award of attorney fees is deficient.
A. Arbitrator's Authority to Rule on Attorney Fees
We find that the Arbitrator erred in concluding that unless the
provisions of the agreement specifically provided for the granting of
attoney fees he lacked authorization to grant attorney fees.
In Philadelphia Naval Shipyard, the Authority discussed whether the
Back Pay Act and its implementing regulations, 5 C.F.R. part 550,
authorize the filing of a request for an award of attorney fees after an
arbitrator has issued an award of backpay. The Authority concluded that
the Back Pay Act confers jurisdiction on an arbitrator to consider a
request for attorney fees either during the arbitration or within a
reasonable time after the arbitrator's decision awarding backpay becomes
final and binding. 32 FLRA at 420-21.
Consequently, the Arbitrator had jurisdiction under the Back Pay Act
to consider and rule on the Union's request for an award of attorney
fees. The Arbitrator erred in concluding that he also needed to be
specifically authorized by the parties' collective bargaining agreement
to award attorney fees because such authority is conferred to him by the
Back Pay Act. We note, as stated in Philadelphia Naval Shipyard, that
the parties can negotiate into their agreement time limits for filing a
request for attorney fees. 32 FLRA at 421. Further, a union may also
agree to language that clearly and unmistakably waives its statutory
right to attorney fees. In the absence of such contractual limitations
in this case, however, we conclude that the Arbitrator had full
authority to award attorney fees if such an award complied with the
requirements of the Back Pay Act. Accordingly, the Arbitrator's denial
of the Union's request on the basis that the parties' collective
bargaining agreement does not specifically authorize the granting of
attorney fees is contrary to the Back Pay Act.
As the Arbitrator did make findings regarding whether the Union's
request for attorney fees was warranted under the Back Pay Act, however,
we will review those findings.
B. Entitlement to Attorney Fees Under the Back Pay Act
We find that the Arbitrator's award articulates specific findings
supporting the determination that an award of attorney fees was not
warranted in the interest of justice under the criteria set forth in
Allen. However, we find that the Arbitrator's award is deficient
because he failed to address the Union's contention that an award of
attorney fees was warranted because, by maintaining the action, a
service was rendered to the Federal work force, an additional criterion
set forth in NADC.
Under the Back Pay Act, an arbitrator's resolution of a request for
attorney fees must be in accordance with the standards established under
5 U.S.C. Section 7701(g). Section 7701(g) prescribes that for an
employee to be eligible for an award of attorney fees, the employee must
be the prevailing party. Section 7701(g)(1), which applies to all cases
except those involving allegations of discrimination, requires that an
award of attorney fees must be warranted in the interest of justice,
that the amount must be reasonable, and that the fees must have been
incurred by the employee. The standards established under section
7701(g) further require a fully articulated, reasoned decision setting
forth the specific findings supporting the determination on each
pertinent statutory requirement, including the basis on which the
reasonableness of the amount was determined when fees are awarded. See
NADC, 21 FLRA at 136-40.
The Arbitrator concluded that attorney fees were incurred and that
the grievant was the prevailing party. These two conclusions are not at
issue, and, therefore, are not before us. He also found that the "award
of fees in this instance would not be 'in the interest of justice'
within the meaning of the Allen criteria(.)" Supplemental Award at 15.
The MSPB in Allen held that an award of fees is warranted under the
interest of justice standard in cases: involving prohibited personnel
practices; where agency actions are clearly without merit or wholly
unfounded, or where the employee is substantially innocent of charges
brought by the agency; when agency actions are taken in bad faith to
harass or exert improper pressure on an employee; when gross procedural
error by an agency prolonged the proceeding or severely prejudiced the
employee; or where the agency knew or should have known it would not
prevail on the merits when it brought the proceeding. United States
Department of the Navy, Norfolk Naval Shipyard and American Federation
of Government Employees, Local 4015, 34 FLRA 725, 730 (1990). An award
of fees is warranted in the interest of justice if any of the Allen
criteria are met. Id.
In this case, the Union contended that the Agency's action was
clearly without merit, wholly unfounded, and made in bad faith and that
the Agency knew or should have known it would not prevail. We have
examined the award and we find that the Arbitrator fully articulated his
reasons for determining that an award of fees was not warranted in the
interest of justice under the criteria set forth in Allen.
In this regard, we disagree with the Union that the Arbitrator found
that the Agency's practice of rewarding some but not other similarly
situated employees was arbitrary and capricious and that this finding is
tantamount to a finding of "without merit" or "wholly unfounded" under
the Allen criteria. Contrary to the Union's argument, the Arbitrator
was referring to the Agency's prior practice; at no time did he find
that the Agency's refusal to grant the grievant a cash award under the
current agreement was arbitrary or capricious. Indeed, the Arbitrator
specifically found that this dispute involved a good-faith difference of
opinion.
The Union also takes issue with the Arbitrator's award on the basis
that the Agency's action was in direct violation of the clear language
of the agreement. As noted, the Arbitrator found that there was a
good-faith difference of opinion on the matter. Therefore, we find that
the Union merely is disagreeing with the Arbitrator's conclusion. The
Union's exception in this regard provides no basis for finding the award
deficient. See, for example, U.S. Patent and Trademark Office and
Patent Office Professional Association, 32 FLRA 375 (1988).
In NADC the Authority reiterated the criteria set forth in Allen for
determining whether an award of attorney fees is warranted as being in
the interest of justice and added to that list instances where there is
either a service rendered to the Federal work force or there is a
benefit to the public derived from maintaining the action. 21 FLRA at
139. The Arbitrator failed to address the Union's claim that by
maintaining this action, the Union rendered an important service to the
Federal work force at the Agency, and thus was entitled to an award of
attorney fees.
5 U.S.C. Section 7701(g) requires a fully articulated, reasoned
decision. National Association of Government Employees, Local R4-106
and Department of the Air Force, Langley Air Force Base, Virginia, 32
FLRA 1159, 1165 (1988). Because there is no fully articulated, reasoned
decision as to whether there has been a service rendered to the Federal
work force, we find the award deficient. We will remand the matter of
the Union's motion for attorney fees to the parties to request the
Arbitrator to consider this issue. If the Arbitrator grants attorney
fees under this criterion, he should determine the reasonableness of the
amount in accordance with decisions of the Authority and case law
established under section 7701(g)(1) for attorneys involved in private
practice. For example, NADC, 21 FLRA at 139-40; Kling v. Department of
Justice, 2 MSPR 464, 470-72 (1980); Mitchell v. Department of Health
and Human Service, 19 MSPR 206, 210 (1984). /*/
VI. Decision
We find that the supplemental award is deficient. The matter is
remanded to the parties to request the Arbitrator to consider the
Union's motion for an award of attorney fees under the criterion set
forth in NADC concerning instances where there is either a service
rendered to the Federal work force or there is a benefit to the public
derived from maintaining the action.
FOOTNOTES
(*) In view of this disposition, we need not address the Union's
exception relating to entitlement to the prevailing market rate.
39 FLRA 1207
39 FLRA NO. 103
Dept. of the Navy, Naval Mine Warfare engineering Activity, Yorktown,
Virginia and NAGE, Local R4-97 (Sergent, Arbitrator), Case No. 0-AR-1833
(Decided March 15, 1991)
STATUTE
7122(a)
7114(a)(1)
7131(d)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
USE OF OFFICIAL TIME
FAILURE TO DRAW ESSENCE
VIOLATION OF LAW
REPRESENTATION RIGHTS
OFFICIAL TIME
DIGEST NOTES
A grievance was filed over the Agency's refusal to permit the Union's
vice president to use official time allocated to the use of the Union's
president. The Arbitrator ruled that under the agreement, Union
officers other than the president are not entitled to use any of the
official time hours allocated to the president.
Construing the Union's first exception that the Arbitrator erred by
determining that the Union representative could not use the official
time allocated to the president as a claim that the award failed to draw
its essence from the agreement, the Authority found that the Union
failed to establish that the award was deficient on this ground. In its
second exception, the Union claimed that the award is contrary to law,
maintaining that section 7114(a)(1) imposes an affirmative obligation on
it to represent all unit employees and that the parties' official time
agreement improperly restricts the time that may be needed to carry out
this representational duty. The Authority concluded that the exception
provides no basis for finding the award deficient.
Case No. 0-AR-1833
U.S. DEPARTMENT OF THE NAVY NAVAL MINE WARFARE ENGINEERING ACTIVITY
YORKTOWN, VIRGINIA
(Agency)
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R4-97
(Union)
DECISION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Stanley H. Sergent. A grievance was filed over the Agency's
refusal to permit the Union's vice president to use official time
allocated to the use of the Union's president. The Arbitrator ruled
that under the parties' agreement, Union officers other than the
president are not entitled to use any of the official time hours
allocated to the president.
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 exceptions.
We conclude that the Union has failed to establish that the award is
deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On July 14, 1989, the Agency denied official time to the Union vice
president because she had exceeded the official time allocated to her
position and denied her request to use official time allocated to the
Union president under the parties' official time agreement. The Union
filed a grievance claiming that the official time agreement allows other
Union officials to use the official time allocated to the Union
president. The grievance was not resolved and was submitted to
arbitration.
The Arbitrator stated the issue to be "the meaning and intent of an
agreement governing the use of official time by Union representatives
which was entered into by the parties on April 12, 1988." Arbitrator's
Award at 16-17. More specifically, the Arbitrator stated that the
question raised is "whether, under the terms of that agreement, Union
officers other than the Union President are entitled to use any of the
official time hours that are allocated to the President." Id. at 17.
The Arbitrator focused on Section 4, Part 2 of the agreement, which
provides as follows:
Section 4. Amounts of Official Time
Official time is authorized for those functions authorized in
Section 3, Part I above as follows:
(1) Union President - 36 hours per pay period
(2) Vice President, - a bank of twenty hours per pay period
Secretary/
Treasurer,
(2) Stewards
It is agreed that the Union President may not use any of the 20
hour bank of hours allocated for the other representatives. . . .
Id. at 18 (quoting the official time agreement).
The Arbitrator denied the grievance. He concluded that under the
parties' official time agreement, Union officers other than the
president are not entitled to use any of the 36 hours of official time
allocated to the president.
The Arbitrator was persuaded by the fact that "nothing in the
language of Section 4, Part 2, of the Official Time Agreement either
expressly states or by reasonable implication suggests that other Union
officials can use any of the official time allocated to the Union
President." Id. at 19. Furthermore, the Arbitrator found that it was
reasonable to assume that the parties would have inserted appropriate
language in the official time agreement to provide for the use by other
Union officers of the official time allocated to the Union president if
an agreement to that effect had in fact been reached in negotiations.
In the Arbitrator's view, the Union was "asking the arbitrator to
legislate new language under the guise of interpretation, thus giving
the Union a benefit it failed to achieve through negotiations." Id. at
20. The Arbitrator also found that the Union's argument was "undermined
by the fact that the language of Section 4, Part 2, sets up separate
'banks' of official time for the Union President and other officials."
Id.
In addition, the Arbitrator rejected the Union's contention that the
Agency tacitly agreed that other representatives could use official time
allocated to the president. The Arbitrator explained that the Union
relied on a comment made by the Agency's chief negotiator Marilyn
Teplitz and that Teplitz readily conceded that she had made the comment
attributed to her to the effect that management did not care if others
used the Union president's official time, provided that the president
did not exceed the 36 hours he was allocated. However, the Arbitrator
stated that the Union failed to mention that Teplitz proceeded to
explain that another officer could use the official time allocated to
the president only if that person was delegated to act in the
president's behalf. The Arbitrator found that Teplitz' testimony
concerning her comment and clarification was corroborated by other
Agency witnesses and that their testimony and understanding of the
official time agreement was fully supported by the Agency's official
notes taken during the negotiations.
The Arbitrator also rejected the Union's reliance on notes prepared
by Teplitz prior to negotiations concerning her "fallback" position.
The Arbitrator found, contrary to the Union's argument, that nothing in
the notes indicated that other representatives could use the president's
official time unless the president has delegated his authority to
another officer.
The Arbitrator further found that the Agency's position was fully
supported by the Navy Mine Warfare Engineering Activity Instruction No.
12711.1, which was prepared and implemented soon after the official time
agreement was executed. The purpose of the instruction was to outline
procedures for granting, using, and accounting for official time
pursuant to the official time agreement. The Arbitrator found that the
instruction was persuasive becuase it had been prepared with the
participation of the Union president, who acknowledged that he had
authorized the language in the instruction which requires that "leave be
charged to the appropriate Union representative when the caps authorized
under Section 4, Part 2 of the Official Time Agreement are exceeded."
Id. at 24.
Finally, the Arbitrator rejected the Union's contention that to
preclude other representatives from using the official time allocated to
the Union president denies the Union sufficient time to adequately
represent unit employees. The Arbitrator primarily found that because
the 56 hours allocated to the Union for official time is the product of
collective bargaining, any increase or change in the allocation of those
hours must be achieved through collective bargaining and not
arbitration.
III. First Exception
A. Contentions
The Union contends that the award is deficient because the Arbitrator
reached an erroneous conclusion in deciding that the Union
representatives could not be delegated any of the Union president's
official time.
The Union argues that although the parties had agreed that a
reasonable amount of official time under the agreement for the type of
activities involved in this case would total 56 hours, the Arbitrator's
interpretation could result in the Union receiving only 20 hours of
official time simply because the Union president is unavailable because
of his work load. The Union also argues that in view of the language of
the agreement, the Arbitrator's conclusion that other Union
representatives could not use the president's official time is
erroneous. The Union maintains that although there is a prohibition
preventing the Union president from using other representatives' time,
there is absolutely no prohibition against other representatives using
the president's time. The Union further argues that the Arbitrator
erroneously accepted the testimony of the Agency's chief negotiator,
which was that her comments and notes all indicated that another officer
could use the official time allocated to the Union president only if
that person was delegated to act in the president's behalf. The Union
claims that this distinction is "artificial," "ill-conceived, and
ridiculous." Exceptions at 6.
In sum, the Union asserts that the award deprives the Union of the
reasonable amount of official time to represent employees guaranteed by
the official time agreement.
B. analysis and Conclusions
We construe the Union's contention that the Arbitrator erred by
determining that Union representatives could not use the official time
allocated to the Union president as a claim that the award fails to draw
its essence from the agreement, and we conclude that the Union fails to
establish that the award is deficient. In order for an award to be
found deficient on the basis that it does not draw its essence from the
agreement, it must be established 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.
United States Department of Labor (OSHA) and National Council of Field
Labor Locals, 34 FLRA 573, 575-77 (1990) (OSHA).
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. OSHA, 34 FLRA at 575. 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 have bargained. Id.
at 576; Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987) (Misco) (as
long as an arbitrator is even arguably construing the collective
bargaining agreement, a court's conviction that the arbitrator committed
serious error does not suffice to find the award deficient).
The Arbitrator's conclusion that Section 4, Part 2 of the parties'
official time agreement prohibited other Union officials from using the
official time allocated to the president constituted his interpretation
and application of the agreement. The Union's argument that the
Arbitrator imposed a prohibition not provided by the agreement does not
establish that the award fails to draw its essence from the collective
bargaining agreement under any of the tests recognized by the Authority.
Unlike the awards which the Authority has found deficient because
they failed to draw their essence from the collective bargaining
agreement, the Union fails to establish that the Arbitrator's
interpretation of Section 4,, Part 2 conflicts with express provisions
of the agreement. See American Federation of Government Employees,
Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725
(1985); Overseas Education Association and Office of Dependents
Schools, Department of Defense, 4 FLRA 98 (1980). The Union further
fails to establish that the Arbitrator's interpretation is irrational,
unfounded, or implausible. Instead, the Union's argument constitutes
mere disagreement with the Arbitrator's interpretation and application
of the agreement and an attempt to have its interpretation of the
agreement substituted for that of the Arbitrator. Disagreement with an
arbitrator's interpretation and application of a collective bargaining
agreement provides no basis for finding that the award does not draw its
essence from the agreement or for finding that the award is otherwise
deficient under the Statute. See, for example, OSHA, 34 FLRA at 576;
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); Misco, 484 U.S. at 37-38.
Accordingly, we will deny this exception.
IV. Second Exception
A. Contentions
The Union contends that the award is contrary to law. The Union
maintains that section 7114(a)(1) of the Statute imposes an affirmative
obligation on the Union to represent all bargaining unit employees and
that the parties' official time agreement improperly restricts the time
that may be needed to carry out this representational duty. The Union
claims that by quantifying the number of hours the Union can use to
represent employees, the agreement encroaches on the statutorily imposed
duty to represent. Alternatively, the Union argues that, assuming the
Union's right to a reasonable amount of official time to represent unit
employees can be restricted, the official time agreement unlawfully
infringes on the Union's internal management and its right to decide how
it is going to delegate the 56 hours of representation.
B. Analysis and Conclusions
We conclude that the Union's exception provides no basis for finding
the award to be deficient. We reject the Union's claim that the
parties' official time agreement encroaches on the Union's statutory
duty to represent employees by restricting the amount of time for
representational duties, and we find that the Union fails to establish
that the award enforcing that agreement is contrary to the Statute. In
our view, the Union's claims evidence a misunderstanding of the
provisions of the Statute providing for official time and the obligation
of the exclusive representative to represent all employees in the unit.
The parties negotiated an official time agreement allocating
specified amounts of official time for the performance of
representational activities encompassed by section 7131(d) of the
Statute. Under section 7131(d) of the Statute, parties may negotiate
amounts of official time that are reasonable, necessary, and in the
public interest. For example, U.S. Department of the Navy, Naval
Aviation Depot, Norfolk, Virginia and International Association of
Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221 (1990)
(Naval Aviation Depot). The Arbitrator found that under the terms of
the parties' agreement on official time, the official time allocated to
the Union president cannot be used by other Union officials.
Consequently, the Union fails to establish that either the official time
agreement or the Arbitrator's award that merely enforces his
interpretation and application of that agreement is contrary to section
7131(d) of the Statute. See Naval Aviation Depot, 36 FLRA at 221 (union
failed to establish that either the provision of parties' agreement
relating to official time or the arbitrator's award based on his
interpretation of the provision was inconsistent with section 7131( d)).
We also find that the Union fails to establish that either the
official time agreement or the award is contrary to section 7114 of the
Statute because it encroaches on the Union's duty to represent unit
employees. Simply stated, neither the agreement nor the award restricts
the time that may be needed to carry out those representational duties.
Instead, the official time provisions of the contract constitute the
parties' agreement on the amount of time during which those
representational duties may be performed on official time, and the award
simply enforces that agreement. As the Arbitrator stated in rejecting
the Union's argument that the agreement denied it sufficient time to
represent unit employees, the 56 hours allocated to the Union was a
product of collective bargaining and any increase or change must be
achieved through collective bargaining and not through arbitration.
Moreover, we reject the essence of the Union's exception, which is
that section 7114 of the Statute entitles an exclusive representative to
perform representational activities of the type covered by section
7131(d) on official time. In our view, section 7114 provides no such
right or entitlement. As we noted, the Statute provides quite the
opposite: section 7131(d) provides that unions and agencies may
negotiate an amount of official time for representational duties that is
reasonable, necessary, and in the public interest. The parties
negotiated such an agreement and the Arbitrator has applied that
agreement. For the Union to now argue that enforcement of the parties'
official time agreement is contrary to the Statute is totally without
merit. As the court indicated in AFGE Council of Locals No. 214 v.
FLRA, 798 F.2d 1525, 1530 (D.C. Cir. 1986), Congress in section 7131(d)
committed the determination of the amount of official time to the union
and the agency together, not to either party alone. Furthermore, the U.
S. Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464
U.S. 89, 104 (1983), specifically rejected an argument that provisions
of the Statute "aimed at equalizing the positions of management and
labor suggest that Congress intended employee representatives to be
treated as though they were 'on the job' for all purposes. Indeed, the
(Statute's) provision of a number of specific subsidies for union
activities supports precisely the opposite conclusion."
Accordingly, we will deny this exception.
V. Decision
The Union's exceptions are denied.
39 FLRA 1197
39 FLRA NO. 102
AFGE, Local 1923 and Dept. of Health and Human Services, Health Care
Financing Administration, Baltimore, Md., Case No. 0-NG-1815 (Decided
March 15, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
DRUG TESTING
COMPLETION OF REHABILITATION PROGRAM
VOLUNTARY ADMISSION
EMPLOYEE ASSISTANCE PROGRAM
SECURITY CLEARANCES
DIGEST NOTES
Proposal 1, which provides that former illegal drug users, who
successfully complete rehabilitation and thereafter test negative for
drug use, will not be eliminated from competition for sensitive
positions within the bargaining unit, if they are otherwise qualified
for such positions, was found to not interfere with any management right
and to be negotiable.
The disputed sentence of Proposal 2, requires the Agency to make
efforts to continue an employee, who voluntarily admits to drug abuse
and demonstrates continuing successful participation in a rehabilitation
program, in a position consistent with the protection of public health
and safety and with national security. The proposal was found to not
interfere with management's right to determine its internal security
practices under 7106 and to not conflict with the Court's decision in
the Egan case. The Authority noted that nothing in the plain wording of
the proposal addresses the Agency's right to deny or revoke security
clearances.
Case No. 0-NG-1815
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1923
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH CARE FINANCING
ADMINISTRATION BALTIMORE, MARYLAND
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed
under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of two
proposals addressing the implementation of the Agency's drug testing
program.
Proposal 1 provides that former illegal drug users, who successfully
complete rehabilitation and thereafter test negative for drug use, will
not be eliminated from competition for sensitive positions within the
bargaining unit, if they are otherwise qualified for such positions.
The disputed sentence of Proposal 2 would require the Agency to make
efforts to continue an employee, who voluntarily admits to drug abuse
and demonstrates continuing successful participation in a rehabilitation
program, in a position consistent with the protection of public health
and safety and with national security. For the following reasons we
find both proposals to be negotiable.
II. Proposal 1
Section 7.I. When a record exists of illegal drug use and an
employee has successfully completed rehabilitation and thereafter
refrains from drug use and tests negative, that employee will not be
eliminated as an otherwise qualified candidate for a sensitive unit
position.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 1 would prevent the Agency from
considering an employees drug usage as an "in-or-out factor" in
evaluating the employee's suitability for a sensitive position.
Statement of Position at 3. The Agency states that the proposal
interferes with its "right to determine its internal security by
directly limiting the Agency's right to assess a candidate's
trustworthiness, as it relates to a history of drug usage." Id. The
Agency argues that an employee's history of drug use may be an
appropriate basis for determining that the employee may not occupy a
sensitive position and that such determinations cannot be "placed in the
hands of an arbitrator." Id. at 4.
2. The Union
The Union contends that Proposal 1 does not prevent the Agency from
taking appropriate personnel actions under Executive Order 12564 (the
Executive Order). The Union asserts that the proposal "allows the
employing Agency to consider the employee's record of successful
rehabilitation but does not require that the employing Agency select the
employee for any position, sensitive or non-sensitive." Reply Brief at
4-5. The Union states that Proposal 1 only requires the Agency to
consider a rehabilitated former drug user with other candidates.
According to the Union, the former drug user "will not be automatically
disqualified from consideration due to the pre-rehabilitation drug use."
Id. at 5 (emphasis in original) (footnote omitted). The Union contends
that as the Executive Order authorizes an agency to reassign a
successfully rehabilitated employee to a sensitive position when the
agency determines that such reassignment does not threaten public
health, safety, or national security, "it would be illogical to conclude
that the Executive Order bars considering an employee for (re)
assignment in those circumstances." Id. at 7 (emphasis in original).
The Union also asserts that Proposal 1 does not interfere with the
Agency's right to determine its internal security practices. According
to the Union, the proposal "would not preclude the (Agency) from
considering the employee's history of drug use and rehabilitation in
assessing whether or not to select the employee for reassignment (to
another sensitive position), to return the employee to active duty
status in the employee's original sensitive position, or to take other
'appropriate personnel action.'" Id. at 7-8. The Union contends that
Proposal 1 "does not mandate determining any individual is suitable for
a sensitive position, and does not prescribe the criteria for
considering otherwise qualified employees who have successfully
completed drug abuse rehabilitation . . . ." Id. at 8-9. The Union also
contends, in the alternative, that Proposal 1 constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute. The Union asserts
that the requirement to consider recovered drug abusers for promotions
helps both the employee and the Agency "because it provides a visible,
discrete example that the Executive Order's emphasis on rehabilitation
is more than mere lip service." Id. at 12.
B. Analysis and Conclusions
Proposal 1 provides that an employee who successfully completes a
rehabilitation program, subsequently refrains from using illegal drugs,
and continues to test negative for illegal drug usage, will not be
eliminated from competing for a sensitive unit vacancy, if the employee
is otherwise qualified for the position. The Union argues that the
proposal "allows the employing Agency to consider the employee's record
of successful rehabilitation but does not require that the employing
Agency select the employee for any position, sensitive or
non-sensitive." Reply Brief at 4-5. The Agency, however, argues that
the proposal limits its ability to weigh the trustworthiness of a
rehabilitated drug user in deciding whether to assign the employee to a
sensitive position.
In its petition for review, the Union states that "it is
well-established that an Agency selecting official has extensive
discretion to select from among a properly ranked and certified group of
eligibles; nothing in Proposal 1 would conflict with any
independently-existing right to select, because Proposal 1 addresses
only procedures for considering employees and does not mandate that any
particular applicant for promotion be selected." Id. at 8. In light of
the Union's explanation, which is consistent with the proposal's
wording, we conclude that Proposal 1 would not require a selecting
official to disregard a rehabilitated candidate's history of drug abuse
in weighing that employee's relative standing among applicants for a
vacancy in a sensitive position. Rather, as the Union points out, "if
an employee referred for promotion or reassignment to a sensitive
position were unsuitable for any reason, then Proposal 1 would not
require the (Agency) to select the employee in violation of its right to
select employees for promotion or of its right to determine its internal
security practices." Id.
Construed consistent with the proposal's plain wording and the
Union's statement of intent, Proposal 1 would merely require the Agency
to consider rehabilitated drug users for vacancies if they possess the
requisite qualifications for those positions. The proposal would not
require the selection of such employees for sensitive positions, and
would not prohibit a selecting official from considering prior drug use
when making a selection. Moreover, the proposal would not affect the
Agency's discretion to establish qualifications for positions and assess
applicants' qualifications for positions. The proposal requires only
that the Agency consider rehabilitated drug users who are otherwise
qualified for the vacancy together with other qualified applicants.
Consequently, we find no basis on which to conclude that the proposal
directly interferes with management's rights under section 7106 of the
Statute. We note, in this regard, that the Agency's concern that an
arbitrator's judgment may be substituted for its own is not a basis for
precluding negotiation over Proposal 1. See Newark Air Force Station
and American Federation of Government Employees, Local 2221, 30 FLRA
616, 636 (1987) (Newark Air Force Station) ("questions of any
impermissible arbitral interference with management's rights must be
directed to the merits, including remedy of an arbitration decision").
Proposal 1 does not directly interfere with management's rights under
section 7106 of the Statute. As no other basis for finding the proposal
nonnegotiable is asserted or is otherwise apparent, we conclude that the
proposal is negotiable.
III. Proposal 2
Section 10.A. If an employee makes a voluntary admission and
demonstrates continued successful participation in a rehabilitation
program, his/her return to duty in a sensitive position may be
considered as not endangering public health, safety, or national
security. Every effort will be made to continue the employee in a
position consistent with the protection of public health, safety and
national security.
(Only the underscored portion of the proposal is in dispute.)
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 2 prevents it from removing an
employee, who has voluntarily admitted to illegal drug usage, from a
sensitive position while the employee is continuing to participate in a
rehabilitation program. The Agency asserts that Proposal 2 "taken as a
whole, has the effect of making retention in the sensitive position the
norm. Variations would then be subject to arbitral review." Statement
of Position at 4.
The Agency states that the assignment of a security clearance level
is a prerequisite to an employee's occupation of a sensitive position
and asserts that court decisions, including Department of the Navy v.
Egan, 484 U.S. 518 (1988) (Egan), limit review of an agency's security
clearance determinations to whether the affected employees received
minimal due process. According to the Agency, "agencies alone have the
right to determine who will receive what level of security clearances,"
and the criteria used in reaching those decisions "are also exclusively
agency choices." Id. at 8.
The Agency rejects the Union's view that assignment to, or retention
in, a sensitive position should be considered as part of a former drug
user's rehabilitation process. The Agency argues that it "cannot be
placed in the position of compromising security in order to accommodate
an individual's desire to remain in a sensitive position as a part of
his or her personal drug rehabilitation program." Id. at 9. The Agency
also disputes the Union's characterization of Proposal 2 as an
appropriate arrangement under section 7106(b)(3) of the Statute,
contending that the proposal interferes with management's right to
determine its internal security practices "to an excessive degree." Id.
at 10.
2. The Union
The Union states that Proposal 2 "means an employee who successfully
completes rehabilitation, after making a voluntary admission concerning
drug use, will not be automatically deemed unsuitable to continue in a
sensitive position, which could be either the employee's position of
record or another sensitive position." Reply Brief at 9. The Union
contends that Proposal 2 is consistent with the Executive Order.
According to the Union, the proposal does not prevent the Agency from
taking appropriate personnel actions in accordance with the Executive
Order. The proposal, the Union states, "requires only that the (Agency)
consider whether the employee can be returned to a sensitive position,
based on criteria external to the proposal, i.e., those stated in
section 5(c) (of the Executive Order)." Id. at 10. According to the
Union, the proposal:
doesn't interfere with the Executive Order's range of appropriate
personnel actions in cases of drug abuse, either in terms of the
employer's ability to "act at all" or in determining the
"appropriate" personnel action for employees (including but not
limited to reassignment out of the sensitive position the employee
most recently encumbered, reassignment to another sensitive
position, reassignment to a non-sensitive position, or other
personnel action).
Id.
The Union further contends that the proposal is an appropriate
arrangement, within the meaning of section 7106(b)(3) of the Statute for
employees adversely affected by the exercise of management's right to
make selections for appointments. The Union identifies the adverse
effect on employees as "consideration of the employee's drug abuse and
rehabilitation in (Agency) decisions to take specific personnel actions,
which, as is evidenced by the Agency's statement of position, would
carry generally negative connotations for persons who are 'known drug
abusers,' and would reduce promotional prospects despite the employee's
other qualifications." Id.
With regard to the balancing of employee benefits against the
interference with management's rights, the Union contends that the
extent of the interference, if any, "is extremely slight" because the
Agency retains the right not to place a successfully rehabilitated drug
user in a sensitive position. Id. The Union asserts that the
proposal's only interference with management's rights "is the
requirement to continue considering an otherwise qualified employee for
a desired position, subject to the (Agency's) right to make selections
for appointments." Id. at 11-12. The Union argues that the continued
consideration of rehabilitated drug users for assignments to sensitive
positions "is a significant aid in the rehabilitation process by
providing credibility and improved moral in what is a difficult personal
problem area, drug abuse." Id. at 12.
B. Analysis and Conclusions
As noted, the Agency interprets Proposal 2 as establishing, as a
norm, the retention of a confessed drug user in the sensitive position
he or she occupied at the time the employee admitted to using illegal
drugs. The Agency's construction is based on the use of the word
"continue" in the proposal's disputed sentence. The Agency states that
the inclusion of that word in the proposal "limits the interpretation of
the phrase 'in a position consistent with the protection of public
health, safety and national security' to the position that the employee
occupies . . . since the employee would not 'continue' in a position
that he or she was not already occupying." Statement of Position at 4.
The Agency notes, in this regard that section 5(c) of the Executive
Order provides that "(a)gencies shall not allow any employee to remain
on duty in a sensitive position who is found to use illegal drugs, prior
to the successful completion of rehabilitation through an Employee
Assistance Program." Id. at 5.
If the Agency's interpretation of Proposal 2 were correct, the
proposal would conflict with section 5(c) of the Executive Order.
However, we reject that interpretation of the proposal. In our view,
the proposal's first sentence, which is not in dispute, acknowledges the
Executive Order's mandate to remove an identified drug user from the
sensitive position he or she occupies. In fact, that sentence
specifically refers to an employees "return to duty in a sensitive
position . . . ." Further, the first sentence provides only that an
affected employee "may be considered as not endangering public health,
safety, or national security."
The disputed second sentence of Proposal 2 would require the Agency
to make "(e)very effort" to "continue the employee in a position
consistent with the protection of public health, safety and national
security." When the two sentences of the proposal are read together, it
is clear that the employees referred to in the second sentence are those
described in the first sentence. That is, the second sentence refers to
employees who are returning to duty after successful participation in a
rehabilitation program. It is clear also that unlike the first
sentence, which refers to a sensitive position, the disputed second
sentence refers to "a position consistent with the protection of public
health, safety and national security."
The Union states, in this regard, that the proposal means that an
employee who voluntarily admits to drug use "will not be automatically
deemed unsuitable to continue in a sensitive position, which could be
either the employee's position of record or another sensitive position."
Reply Brief at 9. The Union's explanation is consistent with the
proposal's wording and, therefore, we adopt it for purposes of this
analysis. Accordingly, based on the plain wording of the two sentences,
and the Union's statement, we conclude that the disputed second sentence
requires the Agency to make efforts to continue to employ an affected
employee in a position which, consistent with the Agency's
determination, is consistent with public health, safety, and national
security. That is, the proposal would require the Agency to attempt to
locate a position for which, in its judgment, the employee is qualified
and to which the employee can be assigned without compromise to public
health, safety, and national security and to consider the affected
employee for placement in that position.
Although the Agency may determine that the affected employee may
continue in the sensitive position he or she encumbered prior to
removal, the proposal would not require the Agency to do so. Moreover,
the proposal would not require the Agency to place an employee returning
from a rehabilitation program in a sensitive position. The Union
specifically states, in this regard, that the Agency would be free under
the proposal to reassign the employee out of his/her previous sensitive
position to another sensitive position or nonsensitive position, or to
take other appropriate personnel action. Reply Brief at 10. For the
reasons discussed in more detail in connection with Proposal 1,
therefore, we conclude that the disputed portion of Proposal 2 does not
directly interfere with management's rights under section 7106 of the
Statute. For the reasons also discussed in connection with Proposal 1,
we reject the Agency's arguments regarding the effect of arbitral review
on the negotiability of Proposal 2.
We reject also the Agency's contention that the proposal would give
arbitrators subject matter jurisdiction over security matters in
violation of the Egan decision. In Egan, the Supreme Court held that
agencies have exclusive discretion under law to grant or deny security
clearances and that the exercise of such discretion is not reviewable by
the Merit Systems Protection Board (MSPB). The limitations imposed by
Egan apply also to arbitration under a negotiated grievance procedure.
United States Information Agency and American Federation of Government
Employees, Local 1812, 32 FLRA 739, 745-46 (1988).
Nothing in the plain wording of Proposal 2 addresses the Agency's
right to deny or revoke security clearances. Accordingly, the Agency
would be free under the proposal to exercise the full range of its
discretion regarding security clearances for affected employees.
Moreover, if an affected employee's security clearance were revoked, the
employee would be ineligible for consideration for assignment to
positions requiring such clearances. There is, therefore, no basis on
which to conclude that the proposal would grant arbitrators authority to
review the substance of Agency decisions regarding security clearances.
Moreover, even if the Agency's decision to deny or revoke a security
clearance were indirectly involved in a grievance under Proposal 2, such
limited review is not inconsistent with Egan. In fact, as the Court
stated in Egan, review of an agency's decision concerning a security
clearance properly may extend to, among other things, whether "transfer
to a nonsensitive position was feasible." 484 U.S. at 530. In this
regard, as noted previously, the Agency is free to determine whether the
position in which an employee may be placed under the disputed second
sentence of Proposal 2 is "consistent with the protection of public
health, safety and national security." Consistent with the Union's
statement of intent, the position need not be a sensitive position.
Accordingly, although an agency's decision to grant deny or revoke a
security clearance is not subject to review under a negotiated grievance
procedure, the Egan decision does not foreclose examination of other
issues not related to the merits of an agency's clearance determination,
including the feasibility of an affected employee's reassignment.
Therefore, we reject the Agency's argument that the proposal is
nonnegotiable because it might subject security issues to arbitration in
violation of the Egan holding.
Consequently, we conclude that Proposal 2 does not directly interfere
with the Agency's right to determine its internal security practices
under section 7106 of the Statute and does not conflict with the Court's
decision in Egan. With regard to the proposal's possible interference
with other management rights, we note that the proposal enables the
Agency to decide whether to fill a position, to establish the
qualifications necessary to perform the work of a position, and to
determine whether an affected employee qualifies for a position.
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, 1060-61 (1990) (proposal
directly interfered with agency's right to assign employees by requiring
selection of nominee to rating and ranking panel without regard to
qualifications necessary to serve on panel). Because we find that
Proposal 2 does not directly interfere with a management right under
section 7106 of the Statute, and is not otherwise nonnegotiable, we
conclude that Proposal 2 is negotiable.
IV. Order
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain on Proposals 1 and 2. /*/
FOOTNOTES
(*) In finding that Proposals 1 and 2 are negotiable, we make no
judgment as to their merits.
39 FLRA 1169
39 FLRA NO. 101
NFFE, Local 1482 and Dept. of Defense, Defense Mapping Agency,
Louisville, Kentucky, Case No. 0-NG-1780 (Decided March 15, 1991)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A) & (B)
7106(b)(3)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
QUALITY CONTROL DUTIES
DIRECT EMPLOYEES AND ASSIGN WORK
APPROPRIATE ARRANGEMENTS
SUPERVISORY BACKUP
CONDITIONS OF EMPLOYMENT
NONUNIT EMPLOYEES
"VITALLY AFFECTS" TEST
ORGANIZATIONAL SUBDIVISION, WORK PROJECT OR TOUR OF DUTY
DIGEST NOTES
Proposal 1, which was entitled "quality control duties," provided,
"The purpose of the quality control program is to ensure acceptable
quality of the map sheet being produced. The form used in quality
control will be the following enclosed form. The form designates that a
sheet is of an acceptable quality or is not acceptable. Individual
quality ratings of production or quality inspection employees should
only be performed by supervisory personnel." The Authority analyzed the
meaning and effect of the proposal and found that it would affect who
did certain evaluations and assignments and the use of rating levels.
The Authority concluded that all four sentences of the proposal directly
interfere with management's right to direct employees and assign work,
and that the proposal did not constitute an appropriate arrangement.
Proposal 2 concerned the selection of the unit employee who may be
designated as "supervisory backup" in the absence of the supervisor.
The proposal does not involve the detail of an employee to a supervisory
position, as the backup continues to perform the work of his or her
position, while assuming additional responsibilities regarding, for
example, approval of leave requests and assignment of work. The
Authority found that the proposal concerns a matter that "vitally
affects" the conditions of employment of unit employees and that it does
not directly interfere with management's right to assign employees, to
assign work, or to determine the types of employees assigned to any
organizational subdivision, work project, or tour of duty. The proposal
was found to be a negotiable procedure under section 7106(b)(2).
Case No. 0-NG-1780
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 1482
(Union)
and
U.S. DEPARTMENT OF DEFENSE DEFENSE MAPPING AGENCY LOUISVILLE,
KENTUCKY
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a petition for review filed by
the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of two proposals relating to quality control and
supervisory backups.
We find that Proposal 1 is nonnegotiable because it directly and
excessively interferes with management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute. We find
that Proposal 2 constitutes a negotiable procedure under section
7106(b)(2) governing management's right to assign work.
II. Proposal 1
54-1 Quality Control Duties
The purpose of the quality control program is to ensure acceptable
quality of the map sheet being produced. The form used in quality
control will be the following enclosed form. The form designates that a
sheet is of an acceptable quality or not acceptable. Individual quality
ratings of production or quality inspection employees should only be
performed by supervisory personnel.
A. Positions of the Parties
1. Agency
The Agency claims that Proposal 1 is nonnegotiable because it
directly interferes with management's rights: (1) to assign employees
under sectin 7106(a)(2)(A) of the Statute; (2) to assign work and
determine the personnel by which Agency operations will be conducted
under section 7106(a)(2)(B); and (3) to determine the methods, means,
and technology of performing work under section 7106(b)(1). The Agency
also contends that the last sentence of the proposal is nonnegotiable
because it does not involve a condition of employment affecting unit
employees.
The Agency contends that the first sentence of Proposal 1 concerns
the definition, purpose, scope and content of the Quality Control
Program, matters about which the Agency may elect, but is not required,
to bargain under section 7106(b)(1) of the Statute. The Agency states
that it chooses not to bargain on these matters because they concern the
methods, means and technology of performing work.
The Agency contends that because the form provided for in the
proposal prescribes "the scope, procedures and uses of the quality
control processes and results," the proposal directly interferes with
management's rights to assign work and direct employees and to determine
the methods, means and technology of performing work. Agency's
Statement of Position at 2. (The form provided for in the proposal is
set forth in Appendix A to this decision.) The Agency also contends that
the form which the Agency currently utilizes "specifies the scope of the
program and includes guidelines and procedure for conducting quality
control and specific work product reviews." Id. (The Agency form is set
forth in Appendix B to this decision.) According to the Agency, the
proposed form would establish "quality review and rating guidelines,
procedures and processes for quality control review, types of jobs to be
reviewed, the functions and purpose of the quality review reports," and
would determine the levels at which the work product will be evaluated.
Id. The Agency concludes that the proposal does not concern "the form
on which quality control data an evaluations would be recorded but the
substance of those records." Id.
The Agency contends that the third and last sentences of the proposal
are nonnegotiable because the third sentence would "specify improperly
the criteria for evaluating the quality of work products and bargaining
unit employees" and because the last sentence would "impermissibly
specify" the employees who "may not be assigned quality control program
responsibilities" and would specify the "responsibilities of supervisory
employees who are not included in the bargaining unit." Id. at 3.
The Agency notes that "(q)uality control is a vitally important part
of DMA (Defense Mapping Agency) production operations." Id. According
to the Agency, DMA is a "Combat Support Agency" which has a "compelling
requirement" to provide military users with "complete, credible,
effective, accurate, and usable mapping, charting and geodetic products,
services and training, at the right place, in the right quantity and at
the right time." Id. The Agency concludes, therefore, that it is
"imperative that effective quality control of DMA work products be used
in accomplishing the performance of its work and conducting its
operations." Id.
The Agency notes that the term "means" as used in section 7106(b)(1)
has been defined to mean "anything used to attain, or make more likely
the attainment of, a desired end." Id., citing National Treasury
Employees Union and U.S. Customs Service, Region VIII, San Francisco,
California, 2 FLRA 255 (1979). The Agency also notes that management
may elect not to bargain over such matters. The Agency argues that the
DMA "Quality Control Program is an integral part of the methods, means
and technology of performing its work and the efficient accomplishment
of its mission to provide quality, timely topographic, aeronautical, and
planimetric products, imagery and extract feature analysis data and
special topographic products of terrain data to support special military
activities/operations." Id.
The Agency argues that the proposal is intended "to prevent
bargaining unit employees from being assigned quality control duties
and/or to preclude the use of quality control evaluations performed by
non-supervisory unit employees from being used as a basis for evaluating
the work of production employees in the bargaining unit." Id. The
Agency also argues that the proposal would determine "how employees will
be rated." Id. The Agency concludes that, to the extent the proposal
"would require the (A)gency to review employees' work and conduct
quality control reviews in (a) particular manner" and would "prescribe
work product and related performance rating levels," the proposal
violates management's rights to assign and direct employees under
section 7106(a)(2)(A) and to assign work under section 7106(a)( 2)(B) of
the Statute. Id. at 5 and 6.
The Agency maintains that the last sentence of the proposal "directs
that supervisory personnel . . . outside the bargainng unit will perform
individual quality ratings of production or quality inspection
employees." Id. at 6. The Agency concludes that the proposal is outside
the duty to bargain because it does not concern a condition of
employment of unit employees and that the proposal directly interferes
with management's right to assign employees and assign work.
Finally, the Agency contends that the proposal does not constitute an
appropriate arrangement for employees adversely affected by the exercise
of a management right "because the establishment of performance
standards (does) not by itself adversely affect employees." Id. at 7.
2. Union
The Union claims that the subject matter of the proposal is "the
Project Directors who perform the Quality Control Process known as Staff
Review" in the Production Support Office (PSO), which is "the second
phase of quality checks of maps." Union's Response at 2. The Union
explains that the Project Directors are currently "assigning rating
levels on the maps they do quality checks on" and that "(t)he rating
levels . . . that can be assigned are above average . . . , average . .
. , below average . . . , and unsatisfactory." Id. at 3. The Union
notes that "(t)hese rating levels are used to directly rate the Project
Leaders . . . (and) Operational Support Assistants" and that the levels
are "used directly in the performance appraisals of the (Project Leaders
and Operational Support Assistants.)" Id. The Union also notes that, as
a result of the decision of a Regional Director of the Authority in Case
No. 4-CU-80021, Project Directors and Project Leaders were included in
the bargaining unit.
The Union explains that the intent of the proposal is to preclude
bargaining unit employees from rating other bargaining unit employees
and from performing "rating level functions" that will directly affect
the performance appraisal of those other employees. The Union notes
that the "only change in the work Project Directors do ( ) will be not
checking the rating level" and concludes that "(i)f management wants the
rating level assigned, then it should be performed by supervisory
management," because the Project Director position is not a supervisory
position. Id.
The Union argues that the proposal does not dictate to management to
whom it will assign work, but only requires "that bargaining unit
employees do not perform supervisory functions." Id. at 5. The Union
contends that the proposal "makes no restrictions on which employees
will perform quality control functions" and provides that "the only
change in the duties of unit employees will be to not check one of the
rating levels." Id.
As to the Agency's claim that the proposal directly interferes with
management's right to determine the methods, means and technology of
performing work because it prescribes the rating form, the Union argues
that it has proposed a form that it believed "would be acceptable to
management for a quality control procedure." Id. at 6. The Union
explains that "(t)he rating levels have been changed to acceptable or
not acceptable" as an appropriate arrangement for the adverse effect of
having "bargaining unit employees . . . rate the quality of and/or the
proficiency of the (Project Leaders/Operational Support Assistants)."
Id. The Union also explains it has substituted on the form "the name of
the Branch Chief as the person who is responsible for the quality and
timely completion of the product, not the Project Leaders or
(Operational Support Assistants)." Id.
The Union notes further that the proposed form provides that "the
staff review form rate the quality of the sheet, not the Project Leader
or (Operational Support Assistant) and that "instead of having four
rating levels rating the employee, there are two levels to determine the
acceptability of the sheet(')s quality." Id. In addition, the form does
not provide for the Project Director to "complete the report or assign
the evaluation." Id. Rather, the Union states, the proposed form would
replace the "two procedures" of the current "staff review form" with
"one procedure" in which the "Division (and) Branch Chief" will review
all sheets. Id. Finally, the Union notes, the proposed form deletes
the sentence that indicates that the rating level will be used in the
Project Leader's or Operational Support Assistant's performance
appraisal.
According to the Union, the proposal constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute for employees
adversely affected by the exercise of a management right. The Union
claims that "(t)he adverse (e)ffect is first level quality checkers
(Project Leaders) being rated on a numerical scale by other bargaining
unit employees." Id. at 7. The Union argues that "(t)his is a right
reserved only for supervisory employees" and that "Project Directors do
not have the training, authority or responsibility to make such a
determination." Id. The Union also argues that management is
"attempting to proliferate the ranks of non-unit employees by delegating
out functions normally performed by supervisors (and) to deny these
employees exercising their rights related to the Union." Id.
B. Analysis and Conclusions
We find that Proposal 1 directly and excessively interferes with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. Consequently, we conclude that
Proposal 1 is nonnegotiable.
1. The Meaning and Effect of Proposal 1
As presently constituted, the quality control process currently being
employed by the Agency is implemented by a "staff review" form. See
Appendix B. As described by the Union, and based on the "staff review"
form used by the Agency, the quality control process begins when a map
sheet, or other similar work product, is submitted by a Project Leader
for "staff review" and is placed in the Quality Inspection folder.
Project Leaders perform an initial review of the map sheet and are
responsible for the quality of the map sheets to which they have been
assigned. Union's Response at 2; Appendix B, "Staff Review Rating
Guidelines," Paragraph 1.
The "Staff Review Report" form is routed to the office chief, as an
indication that the map sheet is ready for review, and the Project
Director responsible for reviewing the sheet completes the report,
assigns the evaluation, and initials the form. Appendix B, "Staff
Review Rating Guidelines," Paragraph 3. In evaluating the map sheet,
the Project Director applies the criteria set forth in the form and
assigns one of four possible ratings to the sheet: "Above Average,"
"Average," "Below Average," and "Unsatisfactory." Id. Union's Response
at 2. The office chief also initials the report.
Reports on map sheets that are rated "Above Average" and "Average"
are returned to the Quality Inspection folder and returned with the job.
Reports on map sheets that are rated "Below Average" and
"Unsatisfactory" are forwarded to the division chief, who signs the
report, and transmits it to the branch chief, who also signs. The
Project Leader responsible for the sheet also signs the report to
acknowledge receipt of the evaluation.
Finally, the Staff Review Report form indicates that the report is
intended to be used "to serve many functions." Appendix B, "Staff Review
Rating Guidelines," Paragraph 4. Among the purposes to be served by the
report is that it is used as "documentation for the Project Leader's
performance appraisal." Id.
However, as revised by Proposal 1 -- in particular, by the "Staff
Review" form set forth in Appendix A and incorporated by reference in
the proposal -- the quality control process proposed by the Union begins
when the "Staff Review Report" is removed from the Quality Inspection
folder and forwarded to the office chief to indicate that the
accompanying map sheet is ready for review. The office chief completes
the report, assigns the evaluation, and initials the form. As set forth
in the form and required by the third sentence of Proposal 1, the office
chief evaluates the quality of the map sheet in accordance with the
prescribed criteria and assigns one of two possible ratings:
"Acceptable" and "Not Acceptable." Appendix A, "Staff Review Rating
Guidelines," Paragraphs 2 and 3.
After the "Staff Review Report" is completed by the office chief, it
is forwarded to the division chief, who signs the form, and then to the
branch chief, who also signs. The branch chief is responsible for the
quality of the map sheets and the "type and number of errors" found in
the sheet reflect the "extent and effectiveness of prior checking,
particularly that accomplished by the branch chief(.)" Appendix A,
"Staff Review Rating Guidelines," Paragraphs 2 and 3. See also Union's
Response at 6.
Finally, as revised by the proposal, the "Staff Review Reports"
employed in the quality control process would serve functions related to
the quality of the map sheets, but would no longer be used to evaluate
the performance of Project Leaders and Operational Support Assistants.
The "Staff Review Report" form designed by the Union eliminates the
provision requiring the form to be used as documentation for the
performance appraisals of Project Leaders and Operational Support
Assistants. Appendix A, "Staff Review Rating Guidelines," Paragraph 4.
In sum, as revised by Proposal 1, the quality control process, and
particularly the "Staff Review Report," would be confined to evaluating
the quality of the map sheets. Under the proposal, the evaluation of
the map sheet and the assignment of the rating for the sheet will no
longer be performed by a Project Director, but by the office chief.
Moreover, the Agency would no longer use four rating levels, but would
be required to use only the two levels prescribed by the proposal. The
Agency would also be required to use evaluation criteria in rating the
map sheets that are different from the criteria currently in use.
Compare Appendix A, "Staff Review Rating Guidelines," Paragraph 2 with
Appendix B, "Staff Review Rating Guidelines," Paragraph 2. Finally,
under the proposal, the branch chief rather than the Project Leader is
responsible for the quality of the map sheet.
The Union ackowledges that the proposed form deletes the sentence
that indicates that the rating level will be used in the Project
Leader's or Operational Support Assistant's performance appraisal.
Union's Response at 6. As explained by the Union, the "Staff Review
Report" is intended to be used to "rate the quality of the sheet, not
the Project Leader or (Operational Support Assistant)." Id. In other
words, the proposal would preclude management from using the results of
the evaluation of individual map sheets in the performance appraisals of
the Project Leaders or Operational Support Assistants who produced the
sheets.
The Union also explains that the intent of the proposal is to
preclude bargaining unit employees, that is, Project Directors, from
rating other bargaining unit employees, that is, Project Leaders and
Operational Support Assistants. The Union contends that the "only
change" in the duties of Project Directors that would result from the
proposal is that Project Directors would no longer be "checking the
rating level." Union's Response at 3. The Union argues that the
proposal does not prescribe to whom management will assign that
supervisory function.
In this connection, we find the proposal to be ambiguous. While the
quality conrol process as restructured by the proposal clearly would
preclude Project Directors from rating map sheets, the functions
previously performed in that process by the Project Directors are
reassigned to a specific official; that is, whereas the process
established by the Agency requires Project Directors to "complete the
report" and "assign the evaluation," the revised process assigns those
duties to the office chief. Compare Appendix B, "Staff Review Rating
Guidelines," Paragraph 3 with Appendix A, "Staff Review Rating
Guideline," Paragraph 3. On the other hand, the fourth sentence of the
proposal simply requires that "supervisory personnel" perform the rating
function. For purposes of determining the negotiability of the
proposal, however, it is unnecessary to resolve this ambiguity;
whatever the Union's intent as to who will perform that function, it is
clear that the proposal would preclude the Agency from assigning the
task to Project Directors.
2. The First Sentence of the Proposal Directly Interferes with
Management's Rights to Direct Employees and Assign Work
The first sentence of Proposal 1 provides that "the purpose of the
quality control program is to ensure the acceptable quality of the map
sheet being produced." Based on the record, we conclude that the intent
of the first sentence is to restrict the uses to which the results of
the quality conrol review process can be put. Put differently, the
first sentence of Proposal 1 is designed to preclude the Agency from
using the quality control evaluations of individual map sheets as part
of the performance appraisals of Project Leaders and Operational Support
Assistants. We noted above that, as revised by Proposal 1, and
implemented by the "staff review" form set forth at Appendix A, the
quality control process would "rate the quality of the sheet, not the
Project Leader or (Operational Support Assistant)." Union's Response at
6.
In our view, the first sentence of Proposal 1 would revise the
quality control process to limit the purposes for which the results of
that process may be used. In other words, the effect of the first
sentence is to preclude the Agency from using the evaluations of the
work product of employees as a basis for the performance appraisals of
those employees. Under the proposal, the quality control process is
confined to ensuring only the quality of the work product.
Proposals which limit the manner in which, or the method by which,
management evaluates the performance of employees directly interfere
with management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute. 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, 247-48 (1990) (Chula Vista District).
Because the first sentence of Proposal 1 would confine the Agency's
quality control process to ensuring only the quality of the map sheets,
and would preclude the use of the results of that process for appraising
the performance of the Project Leaders or Operational Support Assistants
who produced the map sheets, we find, consistent with Chula Vista
District, that the first sentence of the proposal directly interferes
with management's rights to direct employees and assign work. We will
address the question of whether the first sentence of the proposal
constitutes an "appropriate arrangement" within the meaning of section
7106(b)(3) of the Statute in Section II. B.4 of this decision, below.
We note that it is irrelevant that the Agency might be able to assess
the quality of the work performance of Project Leaders and Operational
Support Assistants in some manner other than by use of the results of
the quality control process. Management has the right to determine the
methods it will use to evaluate employee performance and the fact that
it might have used some other method to appraise the quality of the work
of Project Leaders and Operational Support Assistants does not prevent
it from deciding to use the results of the quality control process for
that purpose. See Chula Vista District, 38 FLRA at 248.
3. The Second, Third, and Fourth Sentences of the Proposal Directly
Interfere with Management's Rights to Direct Employees and Assign Work
The second sentence of Proposal 1 requires the Agency to use the form
designed by the Union to implement the quality control process. The
third sentence specifies the ratings that the Agency will use to
evaluate map sheets. The fourth sentence requires the Agency to assign
only supervisory personnel to evaluate map sheets. As outlined above,
the form required by the second sentence of the proposal not only
implements but also revises the Agency's quality control process. The
major revisions effected by the form prescribed in the proposal are
reflected in the third and fourth sentences, namely, the reduction in
number of rating levels, the determination of the content of those
rating levels, and the limitation on the personnel who can be assigned
the task of rating map sheets.
Proposals that prescribe the number of rating levels whereby
management will evaluate an employee's performance, and the criteria by
which employees' performance will be evaluated, directly interfere with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. See Service and Hospital
Employees International Union and Veterans Administration Medical
Center, Milwaukee, Wisconsin, 35 FLRA 521, 533 (1990) (VA Medical
Center, Milwaukee). Because the second and third sentences require
management to use two rating levels in evaluating the quality of
employees' work product, and to use the criteria for evaluating the
quality of employees' work product that are set forth in Appendix A,
"Staff Review Rating Guidelines," Paragraph 2, we find, consistent with
VA Medical Center, Milwaukee, that those sentences directly interfere
with management's right to direct employees and assign work. See also
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, 473
(1991), petition for review as to other matters filed sub nom. U.S.
Department of the Navy, Naval Underwater Systems Center, Newport, Rhode
Island v. FLRA, No. 91-1045 (D.C. Cir. Jan. 24, 1991); Philadelphia
Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval
Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 61-2 (1991).
Finally, proposals that require an agency to assign particular tasks
to particular individuals, or preclude management from assigning
particular functions to particular individuals, directly interfere with
management's right to assign work. See National Treasury Employees
Union, Chapter 12 and U.S. Department of the Treasury, Internal Revenue
Service, Birmingham, Alabama, 36 FLRA 70, 73-4 (1990) (Internal Revenue
Service, Birmingham). Because the fourth sentence of Proposal 1 would
require supervisory personnel to evaluate map sheets, and would preclude
management from assigning that function to Project Directors, we find,
consistent with Internal Revenue Service, Birmingham, that the fourth
sentence of the provision directly interferes 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 No. 110 (1991);
Department of Defense, Office of Dependents Schools and Overseas
Education Association, 28 FLRA 871, 874-75 (1987).
Moreover, we conclude that Proposal 1 in this case is distinguishable
from the proposal at issue in 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 (1990) (Northeastern Program Service Center). The proposal in
Northeastern Program Service Center concerned the particular form that
unit employees would use to apply for a vacant position. We found the
proposal to be a negotiable procedure under section 7106(b)(2) because
it did not preclude the agency from obtaining the information that it
needed to assess employees' qualifications.
Proposal 1, however, concerns more than just the form that will be
used to evaluate the quality of map sheets. As indicated by the record,
the form involved in this case requires a complete restructuring of the
performance appraisal process: reassigning responsibility for
evaluating the map sheets, changing the criteria used in that
evaluation, and precluding the use of the results of the evaluation in
the performance appraisals of Project Leaders and Operational Support
Assistants. See, in particular, Appendix A. The effect of Proposal 1,
therefore, is substantive, not procedural.
4. Proposal 1 Does Not Constitute an Appropriate Arrangement Within
the Meaning of Section 7106(b)(3) of the Statute
The Union also claims that Proposal 1 constitutes an "appropriate
arrangement" under section 7106(b)(3) of the Statute. To determine
whether Proposal 1 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." Kansas
Army National Guard at 31. The Union claims that, by precluding Project
Directors from evaluating the quality of map sheets, the proposal is
intended to mitigate the adverse effect on "first level quality checkers
(Project Leaders)" of "being rated on a numerical scale by other
bargaining unit employees." Union's Response at 7. The Union does not
explain, however, how unit employees are adversely affected by having
other unit employees evaluate their work product on a numerical scale.
We think it is reasonably foreseeable, nevertheless, that such a system
of "peer review" could have an adverse effect on the working
relationships of unit employees and on those unit employees, namely,
Project Directors, who are assigned "supervisory" duties. Consequently,
by precluding unit employees from evaluating the quality of map sheets,
the proposal would mitigate against those results and would constitute
an "arrangement" within the meaning of section 7106(b)(3).
Because we find that the prohibition against unit employees
evaluating the work of other unit employees as set forth in Proposal 1
constitutes an "arrangement," it is necessary to determine whether it is
an "appropriate" arrangement. An "arrangement" is "appropriate" if it
does not excessively interfere with the exercise of a management right.
In order to determine whether Proposal 1 excessively interferes with
management's rights to direct employees and assign work, we must
determine whether the burden on management's rights is disproportionate
to the benefits to employees conferred by the proposal. See Kansas Army
National Guard at 33.
In the absence of any evidence in the record concerning the effect on
unit employees, particularly Project Directors, of the existing system
of "peer review," it is difficult to determine how much weight to give
to the benefit afforded employees by the proposed "arrangement." The
burden imposed by Proposal 1 on management's ability to assign work,
however, is that management is precluded from assigning unit employees
the task of evaluating the quality of map sheets produced by other unit
employees. As explained by the Union, the proposal would not allow
management to assign the task of evaluating the quality of map sheets to
Project Directors or any other unit employees. In our opinion, such a
complete prohibition on the assignment of work is disproportionate to
the benefits that might result from the proposal for unit employees.
Consequently, we find that the restriction on work assignment in
Proposal 1 excessively interferes with management's right to assign work
under section 7106( a)(2)(B) and conclude that, in this respect,
Proposal 1 does not constitute an "appropriate arrangement" within the
meaning of section 7106(b)(3) of the Statute. See Overseas Education
Association and Department of Defense Dependents Schools, 39 FLRA No. 10
(1991), slip op. at 8-9 (DODDS) (proposal absolutely prohibiting
management action without exception held to excessively interfere with
management's right).
The Union also indicates that the two rating levels provided in the
proposal, as opposed to the four levels in the existing system,
constitute an "appropriate arrangement" for employees whose work is
being evaluated by other unit employees. The Union does not explain,
however, why this aspect of the proposal constitutes an "arrangement"
for employees adversely affected by the exercise of a management right.
In particular, the Union does not explain how employees are adversely
affected as a result of having their work evaluated on the basis of four
rating levels, ranging from "Unsatisfactory" to "Above Average," or how
they are adversely affected as a result of being rated by other unit
employees using those rating levels.
We are also unable to determine that there are any "reasonably
foreseeable" adverse effects on employees that would result from the
Agency's decision to use four rating levels or to have unit employees
evaluate other unit employees using those four levels. Consequently, we
are unable to determine that the two rating levels provided by the
proposal afford unit employees any particular benefit mitigating the
adverse effects of the exercise of a management right. We conclude,
therefore, that the two rating levels required by the proposal do not
constitute an "arrangement" for employees adversely affected by the
exercise of a management right within the meaning of section 7106(b)(3)
of the Statute.
The Union does not specifically claim that the first sentence of the
proposal constitutes an "appropriate arrangement." We assume, for
purposes of this decision, that by precluding management from using the
results of the quality control program to evaluate unit employees the
first sentence constitutes an "arrangement" for employees adversely
affected by the "peer review" system. However, because the proposal
would confine the use of quality review results to ensuring the quality
of the map sheets, and eliminate the use of those results for appraisal
purposes, we find that the first sentence excessively interferes with
management's rights to direct employees and assign work. In our
opinion, the complete prohibition established in the first sentence is
disproportionate to the benefit to employees afforded by that sentence.
We conclude, therefore, that the first sentence of Proposal 1 is not an
"appropriate arrangement" under section 7106(b)(3). See DODDS, slip op.
at 8-9.
Finally, because we conclude that Proposal 1 directly and excessively
interferes with management's rights to direct employees and assign work,
we do not reach the Agency's argument that the proposal directly
interferes with management's rights under section 7106(b)(1) of the
Statute.
Accordingly, we conclude that Proposal 1 is nonnegotiable because it
directly and excessively interferes with management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute.
III. Proposal 2
53-1 Supervisory Backups
The following procedure will be followed in assigning backups to the
supervisor in his/her absence:
The supervisor will ask each of the employees they directly
supervise if they wish to be a supervisory backup. The supervisor
will compile a list indicating the employees interested in serving
as a backup. The list of backups will be posted in the work area
so that any employee wishing to follow the chain of command can
contact the correct person.
A supervisor will give written objective job related reasons
for not assigning an employee as his/her backup. This
documentation will be made available to the Union for review upon
request. The documentation will be locally maintained for a
period of one (1) year.
A. Positions of the Parties
1. Agency
The Agency contends, as a threshhold issue, that the proposal
"concerns the filling of positions outside the bargaining unit" and,
therefore, that the proposal does not concern "a codition of employment
affecting bargaining unit employees." Agency's Statement of Position at
7. The Agency also contends that the proposal "prescribes procedures
for assigning supervisory responsibilities on a temporary basis and
prescribes certain supervisory duties" and concludes that the proposal
directly interferes with management's right to assign employees under
section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B).
Id.
As to the "threshhold issue," the Agency contends, citing the test
set forth in Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA 235 (1986), that Proposal 2 does not
pertain to bargaining unit employees because it concerns nonbargaining
unit positions, that is, supervisory positions. The Agency also
contends that the proposal has no effect on working conditions because
"there is no direct connection between the proposal and the work
situation or employment relationship of bargaining unit employees, since
the proposal deals with positions outside the bargaining unit(.)" Id. at
9. The Agency claims that proposals concerning the filling of
supervisory positions do not concern the conditions of employment of
bargaining unit employees.
The Agency also contends that the test established by the Authority
to determine "questions involving the duty to bargain over proposals
concerning conditions of employment o unit employees which also affect
employees or positions outside the unit . . . is not applicable(.)" Id.
at 10. The Agency argues that the "vitally affects" test applies in
cases where a proposal would affect both bargaining unit and
nonbargaining unit employees. The Agency notes that Proposal 2 "deals
exclusively with supervisory positions outside the bargaining unit" and
concludes that the "vitally affects" test "is not applicable in this
case(.)" Id.
The Agency claims that the proposal "would require management to
justify not selecting an employee as an acting supervisor." Id. at 8.
The Agency interprets this aspect of the proposal as being intended to
permit employees "to challenge such decisions under the negotiated
grievance procedure." Id. The Agency argues that disputes concerning
the filling of supervisory positions "may not be resolved under
negotiated grievance/arbitration procedures absent a specific stated
intent on the part of management to have those procedures encompass such
issues." Id.
As to the effect of Proposal 2 on management's rights, the Agency
claims that the proposal "requires (management to) assign work only to
certain 'volunteer' employees" and that, by limiting work assignments to
volunteers, the proposal directly interferes with management's right to
assign work. Id. The Agency also claims that the proposal directly
interferes with management's right to assign employees because it
prescribes the qualifications of employees assigned to be backup
supervisors, namely, that they must be volunteers.
The Agency contends that the proposal "conflicts with (management's)
right to determine the type of employees who could be used as acting
supervisors under section 7106(b)(1) of the Statute." Id. The Agency
argues that by prescribing that "employees must volunteer for such
assignment," the proposal determines the "types" of employees "who could
fill acting supervisor positions(.)" Id. at 9. The Agency concludes
that the proposal is therefore negotiable only at the election of the
Agency under section 7106(b)(1).
Finally, the Agency argues that the proposal would "preclude
management from assinging employees as acting supervisors who object to
such assignments" and concludes that the proposal therefore excessively
interferes with management's rights to assign employees, direct
employees, and assign work under section 7106(a)(2)(A) and (B). Id. at
7.
2. Union
The Union describes Proposal 2 as being designed "to improve
communication between the supervisor and employee." Union's Response at
7. The Union explains that the proposal "requires the supervisor to ask
each employee they supervise if they are interested in serving as
backup," to maintain a list documenting the responses of each employee,
and to post a "list which documents the employees the supervisor has
picked for backup(.)" Id. The Union notes that the posting of the list
addresses "a significant problem" concerning "communication between
supervisor and employees" by enabling "the employee who needs to contact
an employee designated by their supervisor" for "leave usage" or "job
assignment(.)" Id. at 8.
The Union also states that the proposal is not intended "to restrict
who the supervisor can pick as their backup" or to tell "the supervisor
that they can not pick any individual for their backup from any source,"
for example, from "employees who don't volunteer" or who "are not under
the direct supervision of the supervisor(.)" Id. The Union maintains
that the "selection of an employee as a supervisory backup does not
entail the filling of a position" because the supervisory backup is an
"unofficial position" that would not require "documentation" or
"standard forms." Id. (emphasis in original) According to the Union, the
selection of a backup supervisor does not involve an assignment of work
"because the employee usually continues to perform their own work and
only serves as a point of contact for fellow employees." Id.
The Union explains that the requirement that the supervisor "give
objective (job-related) reasons for choosing an employee as a backup" is
intended to deal with favoritism and "lack of merit in promotions." Id.
The Union claims that management makes "staffing decisions" based on
unjustified criteria and that because of "pre-selection" the Union needs
to see "the rationale behind personnel decisions." Id. According to the
Union, because "consideration of the selection of backup" is "the first
step in pre-selecting an employee for a (higher-graded) position," the
"only reason that management would object to the union proposal is that
they have no reason (whatsoever) for making decisions (and) they feel it
is wholly within management's discretion." Id. (emphasis in original).
The Union states that, in view of its explanation of the intent of
the proposal, the proposal "in no way restricts management from picking
any employee as backup" and that, therefore, the proposal does not
directly interfere with management's right to assign employees or to
assign work. Id. at 9. The Union also contends that the proposal
concerns the conditions of employment of bargaining unit employees
because the proposal concerns communication between supervisor and
employees and the elimination of "pre-selection" and favoritism. Id.
The Union argues that the proposal does not concern a "non-unit
position" because the backup "is of extremely short duration" and "does
not have the authority of a supervisor(.)" Id. The Union concludes that
the supervisory backup is not a position.
The Union also argues that the proposal is an appropriate arrangement
for employees adversely affected by the exercise of a management right.
The Union asserts that the adverse effect "is poor communication, the
lack of a uniform(,) fair procedure, the employer constantly changing
working conditions by continuously using different procedures to select
backups, the first step in (favoritism) and pre-selection, and numerous
potential problems for employees needing to contact an individual
designated as supervisor and not knowing who that person is." Id.
B. Analysis and Conclusions
Proposal 2 concerns the selection of the unit employees who may be
designated as "supervisory backup" in the absence of the supervisor.
While the record is not clear, based on statements by the Union that are
not contradicted by the Agency, it appears that the term "supervisory
backup" does not involve the detail of an employee to a supervisory
position. Rather, the employee designated as "supervisory backup"
continues to perform the work of his or her position, while assuming
additional responsibilities regarding, for example, approval of leave
requests and assignment of work. It also appears that employees would
be designated as "supervisory backup" for only short periods of time.
See Union's Response at 8-9. Interpreted in this manner, we find that
Proposal 2 constitutes a negotiable procedure under section 7106(b)(2)
of the Staute for selecting those unit employees who may be designated
as "supervisory backup."
1. Proposal 2 Concerns a Matter That "Vitally Affects" the
Conditions of Employment of Bargaining Unit Employees
The Agency contends that Proposal 2 is outside the duty to bargain
because it pertains to the filling of nonunit positions and thus does
not concern the conditions of employment of unit employees. We
disagree.
The fact that a proposal pertains to or has an effect on nonunit
employees or positions is not in and of itself determinative of the
negotiability of the proposal. See 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, 1454-55 (1991) (Naval Aviation Depot). 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 sectin 7106 of the
Statute, and regulations. Id. A proposal having an effect on nonunit
employees or positins 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., slip op. at 5.
We find that Proposal 2 "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. As explained
above, the proposal concerns the conditions under which unit employees
will be assigned supervisory responsibilities in addition to the duties
of their positions and the proposal concerns the conditions under which
unit employees will be afforded the opportunity to gain supervisory
experience. It is clear that in either or both of these respects the
proposal has a direct effect on the work relationship of unit employees
so as to constitute a matter pertaining to thei conditions of
employment. See National Association of Government Employees, Local
R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center,
Newport, Rhode Island, 38 FLRA 589, 594 (1990). Moreover, it is equally
clear that the subject matter of the proposal -- the assignment of
additional duties and job experience related to promotional potential --
has a significant and material effect on unit employees' conditions of
employment.
Consequently, we conclude that although Proposal 2 concerns the work
of nonunit positions, the proposal "vitally affects" the conditions of
employment of unit employees and, unless otherwise precluded, is within
the duty to bargain under the Statute. We turn, therefore, to the
question of whether the proposal is otherwise negotiable under the
Statute.
2. Proposal 2 Does Not Directly Interfere with Management's Rights
to Assign Employees, to Assign Work, or to Determine the Types of
Employees Assigned to Any Organizational Subdivsion, Work Project, or
Tour of Duty
As to the Agency's contention that Proposal 2 directly interferes
with management's right to assign employees under section 7106(a)(2)(A)
of the Statute, because the proposal does not concern details of unit
employees to supervisory positions, we find that the proposal does not
involve the exercise of that right. Management's right to assign
employees under section 7106(a)(2)(A) is the right to assign employees
to positions. See American Federation of Government Employees, AFL-CIO,
Local 987 and U.S. Department of the Air Force, Warner Robins Air Force
Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269
(1990). As we explained above, the proposal concerns the assignment of
additional responsibilities to unit employees who remain in their
assigned positions. Consequently, we conclude that Proposal 2 does not
involve the exercise of management's right to assign employees under
section 7106(a)(2)(A).
The Agency also contends that Proposal 2 is nonnegotiable under
section 7106(b)(1) of the Statute because, by requiring that management
designate "supervisory backup" from among "volunteers," the proposal
concerns the "type" of employee assigned to a work project or tour of
duty. We disagree. We have defined the term "types" as used in section
7106 to encompass "the right to make determinations based on job-related
differences between employees." See National Association of Government
Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical
Center, Newington, Connecticut, 38 FLRA 211, 215-20 (1990). For
example, the right to determine the "types" of employees to be assigned
to a tour of duty extends to the decision to assign "entry level"
employees, to assign "journeyman" employees or "trainees." Id. at
216-17.
The difference between "volunteers" and "non-volunteers" is not such
a job-related difference. The difference between "volunteers" and
"non-volunteers" relates to the willingness of employees to undertake a
given task, not to "the necessary qualifications, including training and
experience, for employees to perform certain work." Id. at 216. We
conclude, therefore, that by requiring management to select from among
volunteers when deciding which unit employees may serve as "supervisory
backup," the proposal does not concern management's decision as to the
"type" of employee to be assigned to a work project within the meaning
of section 7106(b)(1).
Finally, the Agency claims that Proposal 2 directly interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute because it limits the assignment of "supervisory backup"
responsibility to volunteers. We disagree.
Proposals that require management to assign work to particular
employees and preclude management from assigning that work to other
employees directly interfere with management's right to assign work
under section 7106(a)(2)(B) of the Statute. 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). Proposal 2 in this case would not require the
assignment of "supervisory backup" duties to any particular volunteer,
nor would the proposal preclude the assignment of those duties to
personnel other than volunteers.
The proposal requires supervisors to solicit volunteers for
"supervisory backup" responsibility from the employees under their
supervision, to prepare and maintain a list of the employees who
volunteer, to prepare and post a list of those employees whom they
select, and to notify those whom they do not select with an explanation
of the reasons for the nonselection. As worded, therefore, the proposal
preserves the discretion of the supervisors to determine the
qualifications they believe necessary for a potential "supervisory
backup," to determine whether any of the volunteers possess those
qualifications, and to select the employees whom they will designate as
possible "supervisory backup."
Moreover, as worded, the proposal does not preclude supervisors from
designating any other personnel as "supervisory backup." The Union also
explains that the proposal is not intended to prevent supervisors from
designating their "supervisory backup" from some other source, including
"employees who don't volunteer" and employees who are not under their
supervision. Union Response at 8. Because we find that the Union's
explanation is consistent with the wording of the proposal, we will
adopt that interpretation for purposes of our decision. We conclude,
therefore, that Proposal 2 prescribes the steps supervisors will follow
in creating a list of unit employees who are possible "supervisory
backups," from which list supervisors may, but are not required to,
designate the employees who will be their "backup."
Interpreted in this manner, Proposal 2 does not directly interefere
with management's right to assign work. Rather, the proposal merely
establishes the procedures management will follow in assigning
"supervisory backup" responsibilities. Consequently, we find that
Proposal 2 is negotiable under section 7106(b)(2) of the Statute.
We specifically note the Agency's argument that the proposal would
preclude management from assigning as acting supervisors employees who
object to such assignments. Because we interpret the proposal as
permitting supervisors to designate "supervisory backup" from any
"source," including, for example, employees who do not volunteer, we
reject the Agency's argument.
We also note the Agency's claim that by requiring management to
"justify" not selecting an employee as a "supervisory backup," the
proposal would subject management's decision as to the filling of
supervisory positios to arbitral review. However, as we explained
above, the proposal does not concern the filling of supervisory
positions, but the procedures that will govern the assignment of
supervisory duties to unit employees, including providing reasons for
the decision not to select an employee. The Agency's argument that the
proposal would subject to arbitral review the selection of employees to
fill supervisory positions is therefore inapposite.
Moreover, proposals which require management to provide the reasons
for a given action constitute negotiable procedures under section 7106(
b)(2). See AFSCME, Local 2027 and ACTION, 27 FLRA 191, 196 (1987)
(Chairman Calhoun concurring). See also Pennsylvania National Guard and
Association of Civilian Technicians, 35 FLRA 478, 487 (1990).
Consequently, we reject the Agency's argument that the proposal is
nonnegotiable because it would require management to provide reasons for
not selecting an employee as a possible "supervisory backup."
Because we conclude that the proposal is a negotiable procedure under
section 7106(b)(2) of the Statute, we do not reach the Union's claim
that the proposal is negotiable as an appropriate arrangement under
section 7106(b)(3).
IV. Order
The petition for review as to Proposal 1 is dismissed. The Agency
shall upon request, or as otherwise agreed to by the parties, bargain on
Proposal 2. /*/
FOOTNOTES
(*) In finding that Proposal 2 is negotiable, we express no judgment
as to the merits of the proposal.
APPENDIX A
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
STAFF REVIEW REPORT DATE ...
LINE NO. ... PRODUCT NAME ...
PRODUCT ID ... SHEET ID ...
EVALUATION TYPE OF JOB
...ACCEPTABLE ...NOT ACCEPTABLE ...CCM ...Compilation
...Data Bases ...Combination
PSO Chief ... ... TR ...Color
Separation
...Level I ...Contract
Color Separation
...Level II
Project Leader/
Division Reviewer ... ...F.E. M/C ...Other ...
Project Director ... ...F.E. IA
Branch Chief ... ...F.E. TA
Division Chief ... ...I-C IA
Remarks: ...
Nonconformances: ...
See Rating Guidelines on reverse side.
STAFF REVIEW RATING GUIDELINES
1. All sheets submitted for Staff Review are presumed to be free of
any defect. Nevertheless, the type and number of errors found reflect
the extent and effectiveness of prior checking, particularly that
accomplished by the Branch Chief, who is responsible for the quality and
the timely completion of their (sic) assignments.
2. The evaluation of the quality of the sheet will be based on the
following
a. ACCEPTABLE The sheet subsequent to Staff Review
Does not require resubmission to PSO.
b. NOT ACCEPTABLE The sheet subsequent to Staff
Review
Requires resubmission to PSO.
3. The Staff Review Report as part of the Quality Inspection folder,
will have the Line No., Product ID, Product Name, and Sheet ID lines
completed. The report will be removed from the quality folder and
routed to the PSO Chief as an indication the sheet is ready for Staff
Review. The Chief PSO will complete the report, assign the evaluation,
and initial.
The Staff Review report will be routed to the appropriate division
chief, who will sign it and forward it to the branch chief. The branch
chief signs the form. After the form is completed it is returned to the
Quality Inspection Folder.
4. Utilization of this system will allow the Staff Review Report to
serve many functions. It will notify the PSO Chief when a sheet is
submitted for Staff Review and also when the Review is complete. It
informs the division chief of the quality of work produced within the
division. Additionally, the system will ensure more uniformity of
quality throughout LUO.
APPENDIX B
STAFF REVIEW REPORT DATE ...
LINE NO. ... PRODUCT NAME ...
PRODUCT ID ... SHEET ID ...
EVALUATION TYPE OF JOB
...Above Average ...Below Average ...CCM ...Compilation
...Average ...Unsatisfactory ...Data Bases ...Compilation
PD ... PMO CHIEF ... ...TR ...Color
Separation
...Level I ...Contract
Color Separation
...Level II ...Other...
Project Leader/
Division Reviewer ...
Branch Chief ...
Division Chief ...
Nonconformances: ...
Remarks: ...
See Rating Guidelines on reverse side.
HTC(LUO) Form 8560-9
October 1986
STAFF REVIEW RATING GUIDELINES
1. All sheets submitted for Staff Review are presumed to be ready
for printing and therefore free of any defect. Nevertheless, the type
and number of errors found reflect the extent and effectiveness of prior
checking, particularly that accomplished by the Project Leaders
(Division Reviewers in IA and TA) who are responsible for the quality
and timely completion of their assignments.
2. The evaluation of PL, OR, or OSA effectiveness will be based on
the following conditions:
a. Above Average (3 points) - The sheet subsequent to Staff
Review
(1) Is void of any documented nonconformances.
(2) Is absent of any major irregularities.
(3) Contains limited insignificant imperfections.
b. Average (2 points) - The sheet subsequent to Staff Review
(1) Is void of any documented nonconformances.
(2) Contains several minor irregularities, but falls short of
numerous irregularities.
(3) Does not require resubmission to PMO.
c. Below Average (1 point) - The sheet subsequent to Staff
Review
(1) Contains one or more documented nonconformances.
(2) Does not require resubmission to PMO.
(3) Contains numerous minor irregularities.
d. Unsatisfactory (0 points) - The sheet subsequent to Staff
Review
(1) Is returned for rework with a documented nonconformance.
(2) Requires resubmission to PMO.
3. The Staff Review Report (HTC(LUO) Form 8560-9), as part of the
Quality Inspection folder, will have the Line No., Product ID, Product
Name, and Sheet ID lines completed. The report will be removed from the
quality folder and routed to the PMO Chief as an indication the sheet is
ready for Staff Review. The project director responsible for the sheet
will complete the report, assign the evaluation, and initial. The PMO
chief will also initial the completed report.
If the Staff Review is rate(d) "Average" or "Above Average", the
report will be returned to the folder and be sent back with the job.
If the Staff Review is rated "Below Average" or "Unsatisfactory", the
report will not be returned directly to the folder. Instead, it will be
routed to the appropriate division chief, who will sign it and forward
it to the branch chief. The branch chief signs the form (and) then the
Project Leader/Division Reviewer signs to acknowledge receipt of the
evaluation. After the form is completed it is returned to the Quality
Inspection folder.
4. Utilization of this system will allow the Staff Review Report to
serve many functions. It will notify the PMO chief when a sheet is
submitted for Staff Review and also when the review is complete. It
informs the division chief of the quality of work produced within the
division. It also serves as documentation for the Project Leader's
performance appraisal. Additionally, the system will ensure more
uniformity of quality throughout the LUO.
39 FLRA 1162
39 FLRA NO. 100
Dept. of Veterans Affairs, Veterans Administration Medical Center,
Leavenworth, Kansas and AFGE, Local 85 (Eisler, Arbitrator), Case No.
0-AR-1811 (38 FLRA 232) (Decided March 15, 1991)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
REQUEST FOR RECONSIDERATION
LACK OF JURISDICTION
CONFLICTS WITH LAW
DIGEST NOTES
The Agency seeks reconsideration of the Authority's denial of their
exceptions to a supplemental award concerning the implementation of the
Arbitrator's initial award directing the Activity to pay retroactive
environmental differential pay for exposure to airborne asbestos fibers
to unit employees who were determined to be entitled to EDP under terms
of his award.
The Authority concluded that the Agency had not established
extraordinary circumstances within the meaning of the Authority's
regulations warranting reconsideration. Rejected were the Agency
arguments that the Arbitrator did not have jurisdiction to extend the
coverage of the grievance and that the award conflicts with law. As the
Authority said in the original decision, the Arbitrator was merely
interpreting the procedural provisions of the agreement and the Agency
arguments merely attempt to relitigate the matter before the Authority.
Case No. 0-AR-1811 (38 FLRA 232 (1990))
U.S. DEPARTMENT OF VETERANS AFFAIRS VETERANS ADMINISTRATION MEDICAL
CENTER LEAVENWORTH, KANSAS
(Activity)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 85
(Union)
ORDER DENYING MOTION FOR RECONSIDERATION
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a motion for reconsideration of
the Authority's decision in 38 FLRA 232 (1990) made on behalf of the
Activity by the Department of Veterans Affairs (the Agency). The Union
did not file an opposition to the Agency's motion. Because the Agency
fails to establish that extraordinary circumstances exist which warrant
reconsideration of our decision, we will deny the motion.
II. The Decision in 38 FLRA 232
The Activity filed exceptions to the First Supplemental Decision and
Award (Supplemental Award) of Arbitrator William O. Eisler. The
supplemental award concerned the implementation of the Arbitrator's
initial award directing the Activity to pay retroactive environmental
differential pay (EDP) for exposure to airborne asbestos fibers to
bargaining unit employees who were determined to be entitled to EDP
under terms of his award. The Arbitrator ruled, among other things,
that his supplemental award covered employees of the Veterans Canteen
Service, Leavenworth, Kansas (Canteen) and the Veterans Administration
National Cemetery, Leavenworth, Kansas and Veterans Adminstration
National Cemetery, Fort Leavenworth, Kansas (Cemetery), as well as
employees of the Medical Center. The Arbitrator held that employees of
the three organizations were in the bargaining unit represented by the
Union and rejected the Activity's claim that the employees of the
Canteen and the Cemetery were not covered by the grievance. He ruled
that the parties' agreement required that grievability and arbitrability
objections must be made at the third step of the grievance procedure and
noted that the Activity raised its objection to coverage of Canteen and
Cemetery employees for the first time at the arbitration hearing.
In its exceptions to the supplemental award, the Activity contended
to the Authority that the supplemental award was deficient because the
Arbitrator erroneously ruled that the grievance and initial award
included employees of the Canteen and the Cemetery as well as the
Medical Center. The Activity disputed the Arbitrator's finding that the
Director of the Medical Center had waived the grievance and arbitration
procedures for the Canteen and the Cemetery. The Activity also
contended that the Arbitrator erroneously based his decision on Article
13, Section 4 of the Master Labor Agreement (MLA), which requires the
Activity to assert nongrievability and nonarbitrability at the third
step of the grievance procedure. The Activity asserted that there is no
third step in the grievance procedures of the Canteen or the Cemetery.
The Activity argued that the grievance was filed against the Medical
Center as a local level grievance on behalf of Medical Center employees
only.
The Activity maintained that at no time during the initial
arbitration proceeding was mention made that the grievance was intended
to cover Canteen and Cemetery employees. The Activity contended that
the Union mistakenly ignored the separate grievance procedures for the
Canteen and Cemetery and filed a grievance for EDP at the third step of
the Medical Center's grievance procedure. The Activity asserted that
the grievance requested relief only for employees of the Medical Center
and argued that the Arbitrator erroneously determined that a local
grievance against the Medical Center was also a grievance against the
Agency as the common employer of employees of the Center, the Canteen,
and the Cemetery.
The Authority denied the Activity's exceptions to the supplemental
award and specifically rejected the contention that the award was
deficient on the ground that it erroneously granted relief to employees
of the Cemetery and Canteen Service. The Authority considered the
Activity's exceptions in that regard as contentions that the award
failed to draw its essence from the parties' collective bargaining
agreement and that the Arbitrator exceeded his authority. The Authority
concluded that the Activity failed to establish that the award was
deficient on either ground and denied the Activity's exceptions.
The Authority ruled that the Arbitrator fully addressed the
Activity's contentions regarding coverage of Canteen and Cemetery
employees in his supplemental award. The Authority found that the
Arbitrator considered the Activity's failure to contest the coverage of
employees of the Canteen and Cemetery until the October 1987 hearings on
compliance began and the fact that the intial award granted relief to
all employees in the bargaining unit. The Authority found no deficiency
in the Arbitrator's conclusion that the bargaining unit includes
employees of the Medical Center, the Canteen, and the Cemetery, and
that, consequently, the initial award was applicable to all eligible
employees of the bargaining unit, including employees of the Canteen and
Cemetery.
The Authority also found that the Activity did not show that the
award failed to draw its essence from the parties' agreement. The
Authority noted that the Arbitrator specifically rejected the Activity's
contention that the agreement required a separate grievance filed with
the Canteen and the Cemetery in order to cover employees of those
organizations. The Authority concluded that the Activity's exception
constituted nothing more than disagreement with the Arbitrator's ruling
on a matter of procedural arbitrability under the agreement and provided
no basis for finding the award deficient.
III. The Agency's Motion for Reconsideration
The Agency claims that the Authority erred when it upheld the
Arbitrator's award granting relief to employees of the Canteen and the
Cemetery. The Agency states that the bargaining unit involved is a
nation-wide unit covered by a master agreement but the various
activities covered by the bargaining unit are "established under
separate statutory authority, all have separate lines of supervision
such that the supervision and budget authority of one activity has no
authority over the other activities or their employees." Agency Brief at
2. The Agency maintains that local grievances must be filed with the
appropriate supervisor of the local activity and that "an arbitrator's
award applies only at the local VA facility unless the grievance was
converted, pursuant to contractual procedures, to a national-level
grievance." Id. The Agency contends that, in this case, the grievance
was filed with the Medical Center only and there was no grievance filed
with the Canteen or the Cemetery.
The Agency asserts that when it denied the exceptions to the award in
38 FLRA 232, "the Authority failed to consider VA's fundamental
contention that the (A)rbitrator lacked jurisdiction over the Canteen
and Cemetery employees, and thus, was legally disabled from affecting
their conditions of employement in the award." Id. at 4. The Agency
maintains that the Arbitrator had jurisdiction only under the terms of
the collective bargaining agreement and that the Arbitrator ignored the
requirement that all grievances by Canteen and Cemetery employees be
filed with the supervisors of those activities. In support of its
position the Agency cites Veterans Administration Central Office,
Washington, D.C. and Veterans Administration Medical and Regional Office
Center, Fargo, North Dakota, 27 FLRA 835, 839-40 (1987) (VACO), affirmed
sub nom. American Federation of Government Employees v. FLRA, 850 F.2d
782 (D.C. Cir. 1988), in which the Authority refused to enforce an
arbitration award because the arbitrator lacked jurisdiction under 38
U.S.C. Section 4119.
The Agency argues that a grievance filed with the Medical Center
cannot cover employees of the Canteen or the Cemetery because each
organization is a separate activity within the Agency with its own line
of authority and with different working conditions. The Agency states
that none of the three activities has the power to adjust grievances of
employees of the others and that each activity has its own grievance
procedure which must be followed. The Agency asserts that the
requirement for separate grievance procedures "is no mere procedural
step, as the (A)rbitrator and the Authority ruled; rather, it is a
jurisdictional prerequisite directly tied to the authority of these
separate activities." Agency Brief at 7. The Agency contends that "the
Medical Center lacked jurisdiction to act on any such grievances or to
refer them to arbitration." Id.
The Agency also maintains that the Arbitrator erred by ruling that
there was a waiver of the jurisdictional requirements for filing a
grievance under the negotiated grievance procedure. The Agency asserts
that its defense in the matter is jurisdictional and cites Ilee K.
McKay v. VA, 23 MSPR 244, to support its contention that "jurisdictional
defenses may be raised at any time because they go to the tribunal's
legal authority to act." Id. at 9. The Agency contends that
"(c)ontractual interpretations, such as this one, which are irrational,
implausible and which manifest a disregard for the contract cannot be
sustained." Id.
The Agency claims that the Arbitrator illegally expanded the scope of
the grievance to include employees who were not involved and that his
award deprives the Canteen and the Cemetery of the opportunity to
resolve the grievances of their own employees and deprives the parties
of the right to resolve grievances informally. The Agency asserts that,
although the Canteen and the Cemetery employees are in the same
bargaining unit as Medical Center employees, the Arbitrator could not
expand the remedy beyond those employees included in the grievance.
Finally, the Agency contends that the award is illegal because it
conflicts with Government appropriations law by requiring one activity,
the Medical Center, to use its funds to pay the employees of other
activities.
IV. Analysis and Conclusions
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 38 FLRA 232 and we will deny the Agency's motion.
The arguments presented by the Agency in support of its motion for
reconsideration constitute nothing more than disagreement with the
Authority's decision in 38 FLRA 232 and an attempt to relitigate the
matter. As such, these arguments do not constitute extraordinary
circumstances within the meaning of section 2429.17. See, for example,
U.S. Department of Justice, Bureau of Prisons, Federal Correctional
Institution, El Reno, Oklahoma and American Federation of Government
Employees, Local 171, 38 FLRA 541 (1990) and the case cited therein.
The Agency's arguments are based on the premise that the Arbitrator
did not have jurisdiction to extend the coverage of the grievance to
employees of the Canteen and the Cemetery and that the Arbitrator and
the Authority erred in considering that question to be a matter of
contract interpretation. Those arguments are substantially the same
arguments which we addressed and rejected in 38 FLRA 232. The Agency's
exceptions to the Arbitrator's award focused on the claim that the
Arbitrator erred by finding that the Activity's failure to raise the
issue of jurisdiction over employees of the Canteen and the Cemetery at
the third step of the grievance procedure brought those employees under
the coverage of the grievance. The Agency also made arguments
concerning the separateness of the three activities and the fact that
each activity has a separate pay system. We considered the Activity's
arguments at that time and concluded that the arguments merely
constituted disagreement with the Arbitrator's interpretation and
application of the procedural requirements of the agreement. See 38
FLRA at 242-43.
The cases relied on by the Agency, particularly VACO and Ilee K.
McKay, are inapposite to the circumstances in the present case. Those
decisions concerned the lack of jurisdiction by an arbitrator or the
Merit Systems Protection Board over matters that are covered exclusively
by title 38 of the United States Code. There is no such statutory
exclusion in the present case.
There is no merit in the Agency's argument that the award "conflicts
with fundamental appropriation law." Agency Brief at 14. The Agency
made essentially the same argument in its exceptions to the Arbitrator's
supplemental award when it asserted that the Medical Center, the Canteen
and the Cemetery have separate budgets and separate personnel offices in
Washington, D.C. Further, the Agency fails to specify any particular
law which the award violates in that regard. The Agency misapprehends
the Arbitrator's supplemental award. The award holds that the initial
award applies to all bargaining unit employees, including Canteen and
Cemetery employees. There is nothing in the award which requires that
Canteen and Cemetery employees must be paid out of the funds of the
Medical Center and nothing in the award prevents the payment of Canteen
and Cemetery employees from the funds of their respective employer
organizations. The source of the backpay is an internal matter to be
decided by the Agency in the same manner in which it would comply with
any other backpay order under the Back Pay Act.
The Agency has shown nothing that would demonstrate that the
Arbitrator's inclusion of the Canteen and Cemetery employees in the
coverage of the grievance is contrary to law. The Arbitrator's award
was based on his finding that the grievance concerned employees in the
bargaining unit and on his interpretation of the parties' collective
bargaining agreement. As we found in 38 FLRA 232, the Arbitrator was
merely interpreting the procedural provisions of the bargaining
agreement. The Agency's arguments merely attempt to relitigate the
matter before the Authority.
V. Order
The Agency's motion for reconsideration is denied.
39 FLRA 1155
39 FLRA NO. 99
AFGE, Local 2031 and Dept of Veterans Affairs, Medical Center,
Cincinnati, Ohio, Case No. 0-NG-1860 (Decided March 15, 1991)
STATUTE
7105(a)(2)(E)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
LIMITS ON TRAINING ASSIGNMENTS
RIGHT TO ASSIGN WORK
SHUTTLE SERVICE TO WORK
VIOLATION OF LAW
31 U.S.C. 1344
INFORMATION SUFFICIENT FOR DETERMINATION
DIGEST NOTES
Proposal 1, would require the Agency to limit a 5-consecutive-day
on-the-job training assignment of Medical Supply Technicians to 1 day
per week. Interpreting the proposal as precluding the Agency from
assigning the employees to more than 1 day per week of on-the-job
training, the Authority concluded that the proposal directly interferes
with the Agency's right to assign work and is nonnegotiable.
Proposal 2 would require that all of the employees at issue be
provided with shuttle service (Government vehicles) to and from the main
Cincinnati facility to Fort Thomas. The Authority noted that 31 U.S.C.
1344 governs the use of Government-owned passenger carriers and provides
that funds may be expended for specified purposes. The Authority noted
that to determine whether the proposal is consistent with the U.S.C.,
they need to ascertain whether the Agency already authorized Government
vehicles to make the trip for other official purposes at the times in
question or whether the Agency would be required under the proposal to
establish a shuttle service solely for the purpose of transporting the
employees between the two facilities. As the record does not contain
this information, the Authority was unable to make a negotiability
determination.
Case No. 0-NG-1860
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2031
(Union)
and
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER CINCINNATI, OHIO
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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 two
proposals. The Union did not file a reply brief.
For the following reasons, we conclude that Proposal 1, which would
require the Agency to limit a 5-consecutive-day on-the-job training
assignment of Medical Supply Technicians (MSTs) to 1 day per week, is
nonnegotiable. We will dismiss Proposal 2, which would require the
Agency to provide transportation between its two divisions for all MSTs,
because the parties failed to create a sufficient record upon which to
make a negotiability determination.
II. Background
The Union offered no argument in support of, or explanation
concerning, its proposals in its petition for review and, as noted
previously, did not file a reply brief. Accordingly, the background of
this dispute, necessary to interpret and analyze the proposals, is taken
primarily from the Agency's statement of position.
According to the Agency, it employs six MSTs, whose jobs involve
delivering and ordering supplies for its facilities. Five of the MSTs
are assigned to the Agency's medical facility. One MST is assigned to
the Agency's Fort Thomas division, which is located approximately 7
miles from the medical facility. The disputed proposals were made
during bargaining over the Agency's decision to, in certain
circumstances, assign MSTs from the medical facility to Fort Thomas.
/*/
III. Proposal 1
Union's Proposal (b). That each Medical Supply Technician be rotated
one (1) day per week.
A. Positions of the Parties
The Agency argues that Proposal 1 directly interferes with its right
to assign work. The Agency states that it contacted the Union to
determine whether Proposal 1 was intended to apply to situations where
MSTs from the medical facility were assigned to Fort Thomas because of
the absence of the Fort Thomas MST, or whether the proposal was intended
to apply during the period when MSTs were assigned to Fort Thomas for
training. According to the Agency, the "Union President told management
. . . that the proposal is intended to apply only to the training
period." Statement of position at 3. The Agency maintains that in order
for MSTs from the medical facility to fulfill the duties of the Fort
Thomas MST, they must spend 5 consecutive days of "on-the-job training"
at Fort Thomas "to become sufficiently familiar with the facility(.)"
Id. at 2. The Agency claims that because Proposal 1 limits the number
of consecutive days that an MST will spend on training at Fort Thomas,
it "relieves (the Agency) of its discretion to determine the times and
duration of training that employees are to receive." Id. at 5.
As noted previously, the Union offered no argument in its petition
for review and did not file a reply brief.
B. Analysis and Conclusions
Consistent with the Agency's statement, which is consistent with the
wording of Proposal 1 and is not controverted by the Union, we interpret
the proposal as precluding the Agency from assigning MSTs from the
medical facility to more than 1 day per week of on-the-job training at
Fort Thomas. As interpreted, we agree with the Agency that the proposal
directly interferes with the Agency's right to assign work under section
7106 of the Statute.
We note, at the outset, the Agency's statement that the "training"
affected by Proposal 1 "is not for the purpose of teaching actual
skills." Statement of Position at 2. That is, according to the Agency,
the purpose of the "training" is "to acquaint the MSTs in minute detail
with all elements of the Fort Thomas assignment . . . and to prepare
them for any contingency that may present itself over the normal course
of a day." Id. The Agency's statements are consistent with its notice
to the Union and the record as a whole. As such, it is clear that the
assignments encompassed by Proposal 1 are, in fact, assignments of MSTs
from the medical facility to work at Fort Thomas in order to receive
on-the-job training.
In American Federation of Government Employees, Local 3407 and U.S.
Department of Defense, Defense Mapping Agency, Hydrographic-Topographic,
Washington, D.C., 39 FLRA No. 45, slip op. at 4-7 (1991) (DMA), the
Authority addressed, as relevant here, previous decisions holding that
an agency's right to assign work encompassed the right to train, or not
train, employees. We noted that the Authority had "not defined
'training.'" Id. at 4. We also noted, however, that most of the
Authority decisions addressing this point concerned proposals which
would have required an agency to provide, or precluded an agency from
providing, employees with "instruction on how to perform various duties
and responsibilities." Id. See also id. at n.2. We held that as the
disputed proposal in DMA did not encompass "instruction of employees in
any facet of their duties and responsibilities(,)" the proposal did not
require the agency to "train employees . . . ." Id. at 7, 10. As the
proposal did not otherwise directly interfere with the agency's right to
assign work, the Authority held it to be negotiable.
In DMA, we did not address the extent to which all proposals relating
to training would be held to directly interfere with an agency's right
to assign work. Id. at 10. Similarly, we need not reach that issue
here.
Like the disputed proposal in DMA, Proposal 1 does not encompass
instruction of employees in facets of their duties and responsibilities.
Instead, it is clear from the record that the "training" involved in
Proposal 1 results from the performance of work. That is, the Agency
has determined that in order to facilitate the ability of MSTs from the
medical facility to perform the work of the MST at Fort Thomas, each
medical center MST should work at Fort Thomas for 5 consecutive days.
As such, unlike the proposal in DMA, the connection between the
assignment of MSTs to Fort Thomas and the Agency's right to assign work
is direct and immediate. Indeed, any "training" or experience received
by the MSTs at Fort Thomas results from the performance of work at Fort
Thomas.
The Agency states, and the Union does not dispute, "that five
consecutive days are necessary for the MSTs to familiarize themselves
with the Fort Thomas area." Statement of Position at 2. Proposal 1
would preclude the Agency from assigning MSTs at the medical facility to
work for 5 consecutive days at Fort Thomas. As the decision to assign
the work at Fort Thomas constitutes the exercise of the Agency's right
to assign work, the proposal directly interferes with that right. See
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, 837-38 (1990); International Association of
Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438,
439 (1980).
Proposal 1 directly interferes with the Agency's right to assign
work. Accordingly, in the absence of an argument by the Union, or other
basis on which to conclude, that Proposal 1 is intended to constitute an
appropriate arrangement under section 7106(b)(3) of the Statute,
Proposal 1 is nonnegotiable.
IV. Proposal 2
Union's Proposal (c). That all Medical Supply Technicians be
provided with shuttle service (Government Vehicle) to and from Fort
Thomas Nursing Home to the Cincinnati VA Medical Center.
A. Positions of the Parties
The Agency claims that the proposal is inconsistent with Federal law
because "(t)he Union is asking the Government to use its passenger motor
vehicles to provide transportation between employees' home and place of
employment for the purposes of facilitating their commute to work."
Statement of position at 6. The Agency states that the shuttle service
for MSTs would "presumably (be) at the beginning and end of their
tours." Id.
The Agency asserts that MSTs are "expected to report directly to Fort
Thomas at the start of their tour of duty" and "have no official purpose
for reporting to the main medical center . . . ." Id. (emphasis in
original). Similarly, the Agency claims that "once the day is complete,
(the MSTs) are free to go wherever they please and are not required to
return to the main medical center building for duty purposes." Id.
(emphasis in original).
The Agency asserts that "(t)he Comptroller General of the United
States has ruled (in 62 Comp. Gen. 438 (1983)) that 31 U.S.C. Section
1344(b) prohibits agencies from providing transportation to Federal
employees for the purpose of commuting to or from their residences
unless there is specific statutory authority to do so, or where such
transportation is incident to otherwise authorized use of vehicles
involved." Id. at 7. The Agency states that the Union has not presented
"any official purpose" for the Agency to provide a shuttle bus. Id. at
8. The Agency argues that because the proposal would require the Agency
"to get employees to points between their homes and place of employment
and back home(,)" it "conflicts with law . . . ." Id. at 9.
The Union's position is taken from its Request to Negotiate submitted
to the Agency, where it asserted that the "impact" on its employees
would be "added expense . . . (gas, oil, wear and tear on private
vehicle)." Attachment to Petition for Review (Memorandum dated July 5,
1990). The Union also asserted that "one employee does not drive (and)
(w)ould have to catch 2 or 3 buses to get to Fort Thomas." Id.
B. Analysis and Conclusions
Proposal 2 requires the Agency to provide a shuttle service from the
main Cincinnati facility to Fort Thomas for the purpose of transporting
the MST to and from Fort Thomas on days when Fort Thomas is the MST's
regular duty station. Consistent with the Agency's uncontroverted
statement, and absent any other indication in the record, we will
assume, for purposes of this determination, that the shuttle service
would be provided before and after an MST's regular tour of duty and not
during their paid duty time. Compare National Association of Government
Employees and Veterans Administration, Veterans Administration Medical
Center, Brockton/West Roxbury, Massachusetts, 37 FLRA 263, 269 (1990)
(proposal allowing employees to travel by agency shuttle bus between
posts of duty during regular work time held nonnegotiable as excessively
interfering with the agency's right to assign work; portion of proposal
requiring payment of overtime if employees were delayed on the shuttle
bus past their regular tour of duty held nonnegotiable as inconsistent
with Federal law).
31 U.S.C. Section 1344 governs the use of Government-owned passenger
carriers and provides that funds may be expended "for the maintenance,
operation, or repair of any passenger carrier only to the extent that
such carrier is used to provide transportation for official purposes."
31 U.S.C. Section 1344(a)(1). The section further states, with
exceptions not relevant here, that "transporting any individual . . .
between such individual's residence and such individual's place of
employment is not transportation for an official purpose." In
interpreting 31 U.S.C. Section 1344, the Comptroller General has
determined that, in the absence of other specific authorization, one
narrow exception to the general prohibition on use of Government
vehicles for commuting is authorized. This exception applies "when
provision of home-to-work transportation to Government employees has
been incident to otherwise authorized use of the vehicles involved, i.
e. was provided on a 'space available' basis, and did not result in
additional expense to the Government(.)" 62 Comp. Gen. 438, 447 (1983).
Applying 31 U.S.C. Section 1344, the Authority has held nonnegotiable
proposals which required the use of Government vehicles to assist
employees in their commutes to and from work, unless such transportation
was incident to the authorized use of Government vehicles for other
official business. See, for example, American Federation of Government
Employees, Local 2094, AFL-CIO and Veterans Administration Medical
Center, New York, New York, 22 FLRA 710, 716-18 (1986) aff'd sub nom.
American Federation of Government Employes, AFL-CIO, Local 2094 v. FLRA,
833 F.2d 1037 (1987) (proposal requiring the agency to provide
transportation to and from the subway in non-daylight hours held
inconsistent with Federal law). Compare American Federation of
Government Employees, AFL-CIO, Local 3525 and United States Department
of Justice, Board of Immigration Appeals, 10 FLRA 61, 62-65 (1982)
(proposal requiring the agency to provide shuttle service between
various work sites for official purposes and permitting employees to
ride the buses as part of their travel to and from work held
negotiable).
To determine whether Proposal 2 is consistent with 31 U.S.C. Section
1344, we need to ascertain whether the Agency already has authorized
Government vehicles to make the trip between the medical facility and
Fort Thomas for other official purposes at the times in question or
whether the Agency would be required under Proposal 2 to establish a
shuttle service solely for the purpose of transporting MSTs between the
medical facility and Fort Thomas. The record in this case does not
contain this information. Although it appears, from the Agency's
statement, that the Agency has "passenger motor vehicles" available,
there is nothing in the record as to the use of these vehicles.
The parties bear the burden of creating a record on which we can base
a negotiability determination. 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) (Proposal 1). See also National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Because
the record here does not contain information sufficient for us to
determine whether Proposal 2 is consistent with law, we are unable to
make a negotiability determination. Consequently, we will dismiss the
petition for Review as to Proposal 2.
V. Order
The petition for review concerning Proposals 1 and 2 is dismissed.
FOOTNOTES
(*) Attached to the petition for review and the Agency's statement of
position are copies of the Agency's notice to the Union of its decision.
The notice provides:
1. Acquisition and Material Management Service currently has
a(n) (MST) assigned to the Fort Thomas Division. During this
employee's absence, it is necessary for the remaining (MSTs) to
provide coverage. Therefore, on a rotating basis, each employee
will be required to provide coverage in the absence of the (MST)
assigned to the Fort Thomas Division.
2. Prior to the employees providing coverage, it is necessary
for them to receive training. Therefore, each employee will be
required to spend one week at the Fort Thomas Division for the
purpose of accomplishing this training.
39 FLRA 1149
39 FLRA NO. 98
Dept. of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg,
North Carolina and AFGE, Local 1770 (Boals, Arbitrator), Case No.
0-AR-2014 (Decided March 14, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
INSUBORDINATION
VIOLATION OF LAW
CIVIL RIGHTS ACT OF 1964
DIGEST NOTES
The Arbitrator denied a grievance filed over a 5-day suspension for
discourteous and insubordinate behavior. The Authority construed the
Union's exceptions as alleging that the award is contrary to the Statute
and Title VII of the Civil Rights Act of 1964, and concluded that they
were not persuaded that the grievant was engaged in activities protected
under the Statute when she availed herself of the opportunity provided
by the Agency to complain to her supervisor about her individual
concerns about her working conditions. The Authority also found that
the Union had not established that the award is contrary to the Civil
Rights Act, the assertion constituting 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.
Case No. 0-AR-2014
U.S. DEPARTMENT OF THE ARMY HEADQUARTERS, XVIII AIRBORNE CORPS AND
FORT BRAGG FORT BRAGG, NORTH CAROLINA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1770
(Union)
DECISION
March 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the award of
Arbitrator Bruce R. Boals. A grievance was filed over a 5-day
suspension of the grievant for discourteous and insubordinate behavior.
The Arbitrator 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 filed 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.
II. Background and Arbitrator's Award
The grievant is employed as a data transcriber at the Agency's
Central Issue Facility. The facility issues and receives military
clothing and equipment. As part of the grievant's job duties, she is,
on occasion, responsible for working on the "issue line" and issuing
items to individual soldiers.
Sometime immediately prior to Monday, June 5, 1989, with knowledge
that a co-worker was to be absent on that day, the grievant inquired as
to whether she would be needed to assist on the issue line on June 5.
She was advised that her help would not be required. Accordingly, on
June 5, the grievant came to work in a skirt and blouse rather than
wearing clothing appropriate for issue work. Nonetheless, when the
grievant arrived at work that day she was directed to assist on the
issue line. According to the grievant, while she was issuing items she
observed higher-paid employees "idling time away." Award at 3. The
grievant became progressively sweaty and irritated and she eventually
approached her supervisor to request a conversation pursuant to the
Agency's "open door" policy. Id. The two went into the foreman's
office and the grievant proceeded to inform the supervisor that she was
extremely angry. In a "raised voice" she related how she had been told
that she would not have to work on the issue line that day and she
"objected as 'stupid'" to the inclusion of issue duties in her job
description. Id. The grievant asserted to her supervisor that others
were available to do the work and when the supervisor refuted her
assertion, she called him a "liar." Id. at 4. The grievant then left
the office, allegedly slamming the door behind her.
Thereafter, the grievant's supervisor proposed that the grievant
receive a 5-day suspension for her conduct in the office. The proposal
was approved. The grievant, who was deemed to have excellent
performance in her work assignments, had been counseled and disciplined
previously for alleged incidents of discourtesy to servicemen and
superiors. A grievance was filed over the 5-day suspension. The
grievance was not resolved and was submitted to arbitration.
The parties stipulated that the Arbitrator was to decide the
following issue: "Was (the grievant) appropriately disciplined when she
received a 5-day suspension for discourteous and insubordinate conduct
towards her supervisor? If not, what is the proper remedy?" Id. at 2.
Before the Arbitrator, the Union contended that the Agency could not
"prove its burden that the grievant's conduct was insubordinate or
discourteous." Id. at 5. The Union argued that management's conduct had
been "unreasonable" because, despite the foreman's knowledge of the
grievant's irritation, the foreman "took no action to calm her, warn
her, or any other preventive measures, such as postponement." Id. at 6.
The Union also asserted that because the Agency's "open door" policy is
"per se . . . an invitation to an employee to broach a subject and
express emotion privately without fear of reprisal(,) a certain immunity
is granted (to the employee)," id., and the "Agency is trying to have it
both ways, with the supervisor acting as an ombudsman and then
retaliating against the employee when the offer for voicing complaints
was exercised," id. at 6-7. The Union also argued that the "open door"
policy itself violated the parties' agreement by allowing the Agency to
bypass the Union and deal directly with employees. In addition, the
Union maintained before the Arbitrator that the Agency's version of the
incident and the events leading up to it were untrue and that the
grievant was treated in a disparate manner in that other employees'
"(d)efiant refusals to obey . . . orders" and "insulting language . . .
have gone unpunished in the past." Id. at 6.
The Arbitrator concluded that, although the grievant was a
conscientious, hard-working employee, her conduct on June 5, 1989,
constituted insubordination and could not be condoned. The Arbitrator
also found that "(c)ontrary to union allegations, the penalty was
even-handed and not discriminatory." Id. at 9. In this regard, the
Arbitrator noted that although "instances of insolence and disobedience
from other workers towards the (f)oreman have not resulted in
discipline(,) . . . (t)his (was) not adequate to mitigate the grievant's
penalty." Id. Finally, the Arbitrator noted that the Agency's "open
door policy did not preclude the grievant's accompaniment by a (s)teward
if she so desired. Although an open door policy provides for a certain
amount of confrontational conduct by an employee, such as argumentative
language, this is not the same thing as discourteous, disrespectful
behavior." Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union's Exceptions
The Union contends that the "Arbitrator erred in his award since the
Agency violated law, rule and/or regulation when it disciplined (the)
grievant for her comments during her 'open door policy' meeting with her
supervisor." Exceptions at 1. The Union argues that although the
Arbitrator correctly noted that some leeway . . . should be provided to
an employee during one of these 'employment conditions' discussions via
the 'open door' process . . ., he inappropriately limited the employee
during this protected time to far less participation rights than (that
of) the union representative, had one been present." Id. at 1-2. The
Union asserts that as the Agency has chosen to allow employees to
complain about working conditions directly to management, the Agency
"should not use this same process to retaliate or ambush a disgruntled
employee (who) vigorously pursues his/her complaint." Id. at 2. The
Union notes that employees can be found to be "engaged in protective
(sic) activity in their dealings with the employer/agency
notwithstanding the fact that an exclusive representative exists but is
not present at the time." Id. at 1.
The Union also argues that the Arbitrator erred in not finding that
the Agency discriminated against the grievant on the basis of her sex.
The Union notes that the Arbitrator found that other workers had not
been disciplined for similar infractions and asserts that those other
incidents referenced by the Arbitrator occured when male employees had
been insubordinate. Accordingly, the Union asserts that the grievant
was treated differently because she was female and that the Arbitrator
should have found that she was the victim of discrimination.
B. The Agency's Opposition
The Agency states that the Union has not indicated what, if any, law,
rule or regulation, the Agency violated when it disciplined the
grievant. The Agency further notes that, although the Union appears to
argue that the grievant was engaged in protected activity under the
Statute, the grievant was not disciplined for engaging in protected
activity, but for being discourteous and insubordinate in her manner
toward her supervisor.
With respect to the Union's assertions regarding alleged
discrimination against the grievant on the basis of her sex, the Agency
states that the Arbitrator specifically "found that the penalty was
evenhanded and nondiscriminatory despite instances of occasional
insolence and disobedience from co-workers." Opposition at 2.
Accordingly, the Agency argues that the Union's exceptions constitute
nothing more than disagreement with the Arbitrator's evaluation of the
evidence and testimony.
IV. Analysis and Conclusions
We construe the Union's exceptions as alleging that the award is
contrary to the Statute and Title VII of the Civil Rights Act of 1964.
We are not persuaded that the grievant was engaged in activities
protected under the Statute when she availed herself of the opportunity
provided by the Agency to complain to her supervisor about her
individual concerns about her working conditions. There has been no
contention made, or evidence presented, that the grievant was acting on
behalf or with the authorization of the Union or any of her co-workers
or that she was attempting to pursue any rights accorded her under the
collective bargaining agreement. Even assuming that the grievant was
engaged in activities protected under the Statute, an employee's
involvement in union activities does not immunize the employee from
discipline. Veterans Administration Medical Center and American
Federation of Government Employees, Local 2207, 32 FLRA 777, 780-81
(1988). Management's right to take disciplinary action under section
7106(a)(2)(A) of the Statute includes the right to discipline a union
representative or employee for activities which "are not specifically on
behalf of the exclusive representative or which exceed the boundaries of
protected activity such as flagrant misconduct." U.S. Air Force
Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and
American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA
385, 388-89 (1990) (Tinker Air Force Base) (quoting Long Beach Naval
Shipyard, Long Beach, California and Long Beach Naval Station, Long
Beach, California, 25 FLRA 1002, 1005 (1987)).
In the circumstances of this case, the Arbitrator found that the
grievant was not precluded from seeking a union steward to accompany her
to the meeting with her supervisor. The Arbitrator further found that
"(a)lthough an open door policy provides for a certain amount of
confrontational conduct by an employee, such as argumentative language,
this is not the same thing as (the) discourteous, disrespectful
behavior" in which the grievant had engaged. Award at 9. In view of
the Arbitrator's findings, we conclude that the Union's argument
constitutes mere disagreement with the Arbitrator's evaluation of the
evidence and an attempt to relitigate the merits of this case before the
Authority. This disagreement provides no basis on which to find the
Arbitrator's award deficient under the Statute. See, for example,
Veterans Administration Medical Center, Birmingham, Alabama and American
Federation of Government Employees, Local 2207, 35 FLRA 553, 560-61
(1990) (an exception disagreeing with an arbitrator's evaluation of
evidence relating to protected activities provided no basis for finding
the award deficient).
We also find that the Union has not established that the award is
contrary to Title VII of the Civil Rights Act of 1964. The Arbitrator
recognized that other employees had engaged in insolent or discourteous
conduct and had not been disciplined. However, the Union has not
demonstrated that these individuals engaged in misconduct of the same
degree or that they had been previously counseled as the grievant had
been. Moreover, even assuming that these other employees were all
males, as the Union now contends, the Arbitrator concluded that "(c)
ontrary to the Union('s) allegations, the penalty (of a 5-day
suspension) was even-handed and not discriminatory." Award at 9. The
Arbitrator found that the grievant "vented her anger in a defiant,
disrespectful and insulting manner towards a superior." Id. The
Arbitrator noted that it was unfortunate that other employees had not
been disciplined but that this fact was "not adequate to mitigate the
grievant's penalty."
In our view, the Union's assertion 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. As
stated above, this disagreement provides no basis for finding the award
deficient. See Social Security Administration and American Federation
of Government Employees, Local 1923, 35 FLRA 160, 166 (1990) (union
failed to establish that the award was contrary to Title VII of the
Civil Rights Act of 1964; union's assertions constituted nothing more
than disagreement with the arbitrator's evaluation of the evidence or an
attempt to relitigate the merits of the case before the Authority).
Accordingly, we will deny the Union's exceptions.
V. Decision
The Union's exceptions are denied.
39 FLRA 1126
39 FLRA NO. 97
Marine Corps Logistics Base, Barstow, California and AFGE, Local
1482, Case No. 8-CA-80082 (Decided March 13, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
CHANGES IN JOB PERFORMANCE APPRAISAL SYSTEM AND PRODUCTION TRACKING
SYSTEM
WITHOUT NOTICE AND AFFORDING OPPORTUNITY TO NEGOTIATE
WAIVER
INCLUDING MATTERS IN AGREEMENT
DIGEST NOTES
The complaint alleged that the Respondent violated 7116(a)(1) and (5)
by making changes in its Job Performance Appraisal System and its
Production Tracking System without notice to the Union and affording it
the opportunity to bargain on the impact and implementation. The
Respondent conceded it had an obligation to bargain about the impact and
implementation of the JPAS and admitted that it made the changes without
notifying the Union and affording it an opportunity to bargain.
However, it asserted that it had fulfilled its obligation and that the
Union had waived its right to bargain over the matter.
The Authority rejected the Respondent's waiver defense, finding that
the particular subject matter is not contained in or covered by the
agreement and that the agreement does not otherwise waive the Union's
right to bargain about the matter. The Authority noted that the flaw in
the Respondent's argument is that negotiation of a contract containing
references to a particular subject does not mean that anything related
to that subject necessarily is a "matter" that is "covered by" or
"contained in" the agreement. The test is whether the negotiated
agreement specifically addresses the particular subject matter of a
union's bargaining request, which is not the situation in the instant
case. Accordingly, the circumstances do not support a finding of waiver
by bargaining history.
Case No. 8-CA-80082
MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482 AFL-CIO
(Charging Party/Union)
DECISION AND ORDER
March 13, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge. The
Respondent filed exceptions to the Judge's decision, and the General
Counsel filed an opposition to the exceptions. The Respondent also
filed a motion for leave to supplement its brief, and the General
Counsel filed an opposition to the motion. /1/
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by making changes in its Job Performance Appraisal System
(JPAS) and its Production Tracking System without giving notice to the
Union and affording it the opportunity to bargain on the impact and
implementation of the changes.
The Judge found that the Respondent violated the Statute as alleged.
The Respondent concedes it had an obligation to bargain about the impact
and implementation of the JPAS and admits that it made the changes
without notifying the Union and affording it an opportunity to bargain.
However, it asserts that it had fulfilled its obligation and that the
Union had waived its right to bargain over this matter. There were no
exceptions to the finding that the Respondent violated the Statute with
regard to its failure to bargain about the Production Tracking System,
which we hereby adopt.
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. We adopt the Judge's findings,
conclusions, and recommendations, consistent with the following
discussion.
II. Background
American Federation of Government Employees, AFL-CIO, (AFGE) is the
certified representative of a national consolidated bargaining unit of
employees of the United States Marine Corps. The Charging Party, Local
1482, (the Union) is the agent for local bargaining involving employees
at Respondent Marine Corps Logistics Base, Barstow, California. Local
bargaining is subject to the Master Labor Agreement (MLA) between the
Marine Corps and AFGE.
As summarized by the Judge, relevant portions of the MLA relied upon
by the Respondent include a Preamble, which contains a clause stating
that the agreement as executed, together with any later amendments,
constitutes a "total agreement," and an article entitled "Duration."
Article 31 deals with the performance appraisal system, and, as
characterized by the Judge, provides, among other things, that "(1)
management will establish 'performance elements' and 'performance
standards'; (2) employees will be given the opportunity to participate
in the establishment of performance standards; (3) employees will (be)
given adequate notice of the applicable performance elements and
standards according to which they will be appraised; (4) the elements
and standards will be consistent with the employee's duties and
responsibilities; (5) the performance standards will be 'fair and
reasonable'; and (6) 'employees may advise management at any time they
believe performance standards should be changed.'" ALJ Decision at 2-3.
On July 31, 1987, supervisors called a meeting with the Respondent's
unit employees and discussed management's proposed modifications of the
performance appraisal system and procedures for reporting and recording
individual employee production output. Subsequently, the shop foreman
met individually with each employee and solicited input regarding the
proposed new performance standards.
On August 7, 1987, the Union requested bargaining over the new
performance appraisal system and procedures for reporting production.
The Respondent answered that it had no obligation to bargain and that it
was complying with the MLA provisions for employee participation in
establishing new performance standards. In November, the Respondent
implemented changes that had been discussed at the July 31 meeting. It
is conceded that these changes were more than de minimis.
III. Administrative Law Judge's Decision
The Judge concluded that the Union had not waived its statutory right
to bargain over the impact and implementation of the JPAS. The Judge
rejected the Respondent's principal argument, which is that it had
satisfied any obligation to bargain about modification of the
performance appraisal system when it negotiated provisions of the MLA
that provided for advance notice to employees and their participation in
the establishment of standards. He noted that "the Authority
definitively rejected a similar contention in Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio and Newark Air Force Station, Newark, Ohio, 21 FLRA 609 (1986)
(Wright-Patterson), where the contractual provisions relied on were to
the same effect as the provisions on which the Respondent relies." ALJ
Decision at 5.
The Judge noted that an agency is bound by the statutory obligation
to bargain over impact and implementation of changes made pursuant to a
reserved management right, absent a waiver by the union of its right to
bargain. However, he stated that Wright-Patterson held that the
contractual provisions setting forth management rights and obligations
in making decisions to revise the performance appraisal system did not
affect the agency's obligation to bargain over the impact and
implementation of the revisions decided upon. Thus, the Judge
characterized Wright-Patterson as holding that "provisions recognizing
management's right to revise performance appraisal systems and giving
employees the right to participate in that decision-making process do
not relieve the employer agency of its obligation to bargain over the
impact and implementation of the revisions." Id. at 6.
The Judge also distinguished other cases relied on by the Respondent
for the proposition that agencies do not violate the Statute when they
unilaterally implement personnel actions by following contract
procedures. For example, in Naval Amphibious Base, Little Creek,
Norfolk, Virginia, 9 FLRA 774 (1982), "the contractual procedures
followed were the very procedures on which the parties had agreed as a
result of their prior bargaining on impact and implementation. Here, no
such bargaining occurred." ALJ Decision at 6 n.7.
The Respondent's argument was based on a theory that provisions in
the MLA concerning the performance appraisal system constitute an
"accord and satisfaction" by which the parties had agreed on the extent
and limit of management's obligation to consult before modifying the
system. The Judge found that this was merely a rephrasing of a waiver
defense, and concluded that under either description, the Respondent's
argument failed because both defenses "presume that the Union has given
up its right to bargain over impact and implementation in return for, as
argued here and in Wright-Patterson, a contractual right of employee
participation in the revision process. However rationalized or
articulated," the Judge continued, "this contention cannot survive the
holding in Wright-Patterson that the union did not, by equivalent
contractual language, give up its statutory right." ALJ Decision at 6.
The Judge also addressed the Respondent's alternative contention,
that other provisions of the MLA constitute express waivers of the
Union's right to bargain over the impact and implementation of the
revisions. He found that while various clauses, including the Preamble,
which he characterizes as a "form of 'zipper clause,'" ALJ Decision at
2, limit the Union's right to reopen subjects covered by the agreement,
none amounts to a waiver of the right to bargain over impact and
implementation. He also concluded that there was insufficient evidence
to find a waiver based on acquiescence by past practice, especially
absent any contention by the Respondent that such inaction constituted a
waiver. Finally, he found that a provision of the MLA that maintains in
effect all past practices not altered by the agreement does not amount
to a waiver, "(i)n light of Respondent's failure to argue that the
Union's prior acquiescence in similar unilateral changes created a past
practice(.)" ALJ Decision at 7 n.9.
Finally, the Judge found that the Respondent violated the Statute by
changing its Production Tracking System without giving notice to the
Union and affording it the opportunity to bargain on the impact and
implementation of the changes. As noted above, there were no exceptions
to this finding.
In regard to the remedy, the General Counsel did not seek a return to
the status quo ante, and on that basis the Judge recommended a
prospective bargaining order. He noted that the evidence left
uncertainty as to whether an attempt to settle another aspect of the
complaint, not here at issue, satisfied the Respondent's obligation to
bargain over the impact and implementation of the revisions. Therefore,
he recommended that the Respondent be permitted to offer evidence of
compliance, if it chooses to take such a position, at the compliance
stage of this case.
IV. Positions of the Parties
The Respondent argues, as it did before the Judge, that it has no
obligation to bargain over the impact and implementation of the
revisions to the performance appraisal system because the changes were
permitted by the MLA and were implemented in accordance with the MLA,
which covered the subject. It argues that the "establishment,
modification and application of performance elements and standards are
clearly matters that are addressed, both substantively and procedurally,
by the MLA(,)" and the Union had already exercised its bargaining right.
Respondent's brief at 11-12. /2/ As matters covered by a negotiated
agreement are not subject to mid-term bargaining, the Respondent
contends that its obligation was satisfied when it acted in accordance
with provisions of the MLA that cover the appraisal system.
In summary, the Respondent concedes it has a duty to bargain over the
impact and implementation of a change in conditions of employment, but
argues that, by negotiating the MLA and acting in compliance with it, it
met its obligation to bargain over matters covered by the MLA.
The General Counsel supports the Judge's decision.
V. Analysis and Conclusions
The Respondent concedes that it has a duty to bargain over the impact
and implementation of changes in the performance appraisal system unless
that particular subject matter is contained in the agreement, or has
been waived in some other manner. In agreement with the Judge, we find
that the particular subject matter is not contained in or covered by the
agreement, and that the MLA does not otherwise waive the Union's right
to bargain over this matter. Therefore, we conclude that the Respondent
violated section 7116(a)(1) and (5) of the Statute by refusing to
bargain with the Union.
The Respondent argues that matters covered by the agreement are
exempt from bargaining "because the bargaining obligation on covered
matters was satisfied by negotiating those matters into the agreement."
Respondent's brief at 10. The Respondent would indeed be correct if the
"matter" at issue were contained in the agreement because no bargaining
obligation continues during the term of an agreement concerning
negotiable matters that are contained in that agreement. See Internal
Revenue Service, 29 FLRA at 166. However, the flaw in the Respondent's
argument is that negotiation of a contract containing reference to a
particular subject does not mean that anything relating to that subject
necessarily is a "matter" that is "covered by" or "contained in" the
agreement. The test is whether the negotiated agreement specifically
addresses the particular subject matter of a union's bargaining request.
Marine Corps Logistics Base, 39 FLRA No. 91, slip op. at 6 (1991).
Here, as in that case, the agreement does not specifically address the
full range of impact and implementation issues.
We agree with the Judge's finding that the Respondent's argument that
it has satisfied its bargaining obligation essentially presents a type
of waiver defense. Thus, as found in Wright-Patterson, provisions in
the MLA permitting the Respondent to establish performance elements and
standards and requiring notice to employees and their participation in
the establishment of performance standards do not represent a clear and
unmistakable waiver by the Union of its right to bargain over all impact
and implementation issues that arise when the Respondent exercises its
right to change performance standards. See Wright-Patterson, 21 FLRA at
611. A waiver may be by express agreement, as established by a
comprehensive zipper clause or by the specification of a particular
subject matter in the parties' negotiated agreement. Marine Corps
Logistics Base, 39 FLRA No. 91, slip op. at 7. We adopt the Judge's
conclusions, for the reasons he stated, that the MLA contains no express
agreement that impact and implementation bargaining be waived either as
to all matters or specifically as to changes in performanc standards.
/3/ We further agree that the record and the arguments of the Respondent
do not establish a basis for finding a waiver by acquiescence or past
practice.
A waiver may also be established by bargaining history, showing that
contract negotiations involved a full discussion and exploration of all
such issues at the bargaining table. Internal Revenue Service, 29 FLRA
162 (1987). Here, however, the Respondent does not argue that the
parties bargained about an extensive range of implementation issues.
Rather, it argues that the fact that there was negotiation and agreement
over some issues that arguably go to impact and implementation
extinguishes its duty to bargain over the impact and implementation of
its decision. Thus, we conclude that the circumstances do not support a
finding of waiver by bargaining history.
For the reasons expressed by the Judge, we adopt his recommended
order, including his recommendation that if a dispute develops over
compliance, the Respondent be permitted in compliance proceedings to
offer evidence that it has already complied with our order.
VI. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, Marine Corps Logistics Base, Barstow, California, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, concerning the procedures to be
observed in implementing the decision to institute a new
individual production reporting system and revise its performance
appraisal system, and concerning appropriate arrangements for
employees adversely affected by such changes.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, concerning the procedures to be
observed in implementing, and appropriate arrangements for
employees adversely affected by, the decision to institute a new
individual production reporting system and revise its performance
appraisal system.
(b) Post at its Marine Corps Logistics Base, Barstow,
California, 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, Marine
Corps Logistics Base, Barstow, California, 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, San Francisco,
California 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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, concerning the procedures to be
observed in implementing, and appropriate arrangments for employees
adversely affected by, the decision to institute a new individual
production reporting system and revise its performance appraisal system.
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, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, concerning the procedures to be
observed in implementing, and appropriate arrangements for employees
adversely affected by, the decision to institute a new individual
production reporting system and revise our performance appraisal system.
(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, San Francisco, California 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. 8-CA-80082
MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO
Charging Party
Jonathan S. Levine, Esquire For the General Counsel
William M. Petty, Esquire For the Respondent
Mr. Dale E. Boyce For the Charging Party
Before: JESSE ETELSON, Administrative Law Judge
DECISION
Statement of the Case
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., (the Statute).
Pursuant to a charge filed by American Federation of Government
Employees, Local 1482, AFL-CIO, (the Union) a Complaint and Notice of
Hearing was issued on February 29, 1988 by the Regional Director for
Region VIII, Federal Labor Relations Authority. The Complaint alleges
that the Marine Corps Logistics Base, Barstow, California (the
Respondent) violated section 7116(a)(1) and (5) of the Statute (5 U.S.
C. 7116(a)(1) and (5)) by unilaterally changing certain working
conditions of unit employees without notifying the Union and affording
it the opportunity to bargain on the impact and implementation of the
alleged changes. /4/ The Respondent admits the jurisdictional
allegations of the complaint and does not contest either the Union's
status as bargaining representative or that the Respondent made changes
without bargaining with the Union, but it denies that it committed any
unfair labor practices.
A hearing was held on May 25, 1988, in Barstow, California. All
parties were permitted to present their positions, to call, examine and
cross-examine witnesses, and to introduce evidence bearing on the issues
presented. The General Counsel and the Respondent submitted
post-hearing briefs.
On the basis of the entire record, the briefs, and from my evaluation
of the evidence, I make the following findings of fact, conclusions, and
recommendation.
Findings of Fact
The facts are not in dispute. The Union is a constituent body of the
American Federation of Government Employees (AFGE), the certified
representative of a national consolidated bargaining unit of employees
of the United States Marine Corps. The Union, by established practice,
acts as the agent for AFGE for purposes of local bargaining involving
the unit employees employed at the Respondent Logistics Base. Local
bargaining, however, is subject to the provisions of the Master Labor
Agreement (MLA) between the United States Marine Corps and AFGE.
The MLA that was in effect at the time of the events alleged as
unfair labor practices contains several provisions on which the
Respondent relies in part in disputing its bargaining obligation
concerning the changes it implemented. First, the Preamble to the MLA
contains a form of "zipper" clause stating that the agreement as
executed, together with any later amendments, constitutes "a total
agreement," and clauses to the effect that the agreement prescribes
certain rights and obligations of the parties and establishes procedures
"that meet the special requirements and needs" of the Marine Corps. The
MLA concludes with an article entitled "Duration," in which the term of
the agreement is set at three years, subject to reopening for
modifications only by mutual consent. Article 31 of the MLA deals with
the performance appraisal system. It provides, insofar as it is
relevant here, that (1) management will establish "performance elements"
and "performance standards"; (2) employees will be given the
opportunity to participate in the establishment of performance
standards; (3) employees will given adequate notice of the applicable
performance elements and standards according to which they will be
appraised; (4) the elements and standards will be consistent with the
employee's duties and responsibilities; (5) the performance standards
will be "fair and reasonable"; and (6) "employees may advise management
at any time they believe performance standards should be changed." /5/
On July 31, 1987, supervisors of unit employees in the Respondent's
machine shop called the machine shop employees to a meeting. /6/ The
meeting consisted of a discussion of management's proposed modifications
to the performance appraisal system and to the Respondent's procedures
for reporting and recording individual employee production output.
After the date of this meeting, machine shop foreman Warnock held
individual meetings with each of the employees during which he solicited
their input regarding the proposed new performance standards.
On August 7, the president of the Union submitted to the Respondent a
written demand to bargain over the new performance standards and
individual production output records. The Respondent answered with a
letter stating that it had no obligation to bargain with the Union over
these matters, and that it was complying with the MLA provisions for
employee participation in establishing the new performance standards.
In November, the Respondent implemented changes that reflected, entirely
or for the most part, the proposed revisions discussed at the July 31
meeting.
The changes in the performance appraisal system consisted of the
addition of one "performance element," the raising of timeliness and
quality standards for achieving a given rating (such as "outstanding" or
"marginal"), for each performance element, and the addition of new
descriptive narratives for each rating. /7/ The changes in the
individual production reporting system are interrelated with the
performance appraisal system, especially with regard to timeliness.
Thus, as machine shop foreman Provart testified, the new system became a
tool to evaluate employees. /8/ Specifically, the new production
"tracking system" centered on information not previously included on the
routing tages that accompanied each item on which machine shop employees
worked. First the foreman would, under the new system, write a time
estimate for the particular job on the back of the routing tag and would
note the date and time he assigned the job to the employee. The
employee would enter his time of completion on the tag and enter the
color of the tag on a separate form. An employee's "percentage of
effectiveness" for each job, to be used as a facto in his performance
appraisal, would be calculated by comparing the actual time spent with
the foreman's estimate. Finally, the Respondent incorporated into the
system for tracking individual production an emergency/service work
authorization," previously used for maintenance employees, to account
for time spent and work accomplished by machine shop employees in other
parts of the facility.
As a result of a grievance pursued by several employees, the
Respondent rescinded the November changes in the performance appraisal
system and went back through the process of meeting with employees for
their participation in the development of the changes. The new
production tracking system was also put "in a hold pattern" and was
included in the agenda for these meetings. The president of the Union
was invited to, and did, attend. Apparently, this was for the purpose,
principally, of satisfying the Respondent's obligations in settlement of
the "formal discussion" allegations of the complaint that were later
withdrawn. After these meetings were completed, and after the complaint
in this case issued, the changes were implemented again, substantially
as before. The second implementation is not under attack here, but the
circumstances surrounding it are cited by the Respondent in mitigation
of any affirmative remedy that might otherwise be appropriate, should a
violation be found.
Discussion and Conclusions
A. The Job Performance Appraisal System
The Respondent concedes in effect that the impact and implementation
of the new appraisal system would be mandatory subjects of bargaining
but for the effect of certain provisions in the Master Labor Agreement,
which, it contends, relieved it of this bargaining obligation.
First, the Respondent argues that it satisfied any bargaining
obligation with regard to modifications of the performance appraisal
system by negotiating and following those MLA provisions which call for
advance notice to employees and their participation in the establishment
of the performance standards. /9/ As the General Counsel points out,
however, the Authority definitively rejected a similar contention in
Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, and Newark Air Force Station,
Newark, Ohio, 21 FLRA 609 (1986) (Wright-Patterson), where the
contractual provisions relied on were to the same effect as the
provisions on which the Respondent relies. Thus, Wright-Patterson holds
that provisions recognizing management's right to revise performance
appraisal systems and giving employees the right to particpate in that
decision-making process do not relieve the employer agency of its
obligation to bargain over the impact and implementation of the
revisions.
In Wright-Patterson, the Authority was responding specifically to a
finding by the administrative law judge that the contractual provisions
constituted a clear and unmistakable waiver of the Union's right to
bargain. Here, the Respondent contends that the provisions concerning
the performance appraisal system do not constitute a waiver, but,
rather, an "accord and satisfaction" by which the parties agreed on the
extent and the limit of management's obligtion to consult with anyone
before modifying the appraisal system. This rephrasing of the defense
does not, however, permit this case to be distinguished from
Wright-Patterson. As the Authority said there, an agency is bound by
the statutory obligation to bargain over the impact and implementation
of changes made pursuant to a reserved management right, absent a waiver
by the union of its right to bargain. The so-called "accord and
satisfaction" would operate, in legal effect, no differently from a
waiver. Both presume that the Union has given up its right to bargain
over impact and implementation in return for, as argued here and in
Wright-Patterson, a contractual right of employee participation in the
revision process. However rationalized or articulated, this contention
cannot survive the holding in Wright-Patterson that the union did not,
by equivalent contractual language, give up its statutory right. /10/
The Respondent also contends that other provisions in the MLA
constitute express waivers of the Union's bargaining rights. /11/ These
provisions, including the "zipper clause," limit the Union's right to
reopen subjects covered by the agreement. See Missouri National Guard,
Office of the Adjutant General, Jefferson City, Missouri, 31 FLRA 1244
(1988). However, this type of waiver is far different from a waiver of
the applicable right to bargain concerning unilateral changes in
existing conditions of employment. See generally Suffolk Child
Development Center, Inc., 277 NLRB 1345, 1350-1 (1985). None of the
many provisions cited by the Respondent either express or imply the type
of waiver which would excuse bargaining over the impact and
implementation of such changes. /12/
B. The Production Tracking System
The Respondent's position regarding its admitted refusal to bargain
over the impact and implementation of the new tracking system is simply
that its impact on conditions of employment was insufficient to trigger
a duty to bargain -- that its impact was de minimis. This contention
must be rejected.
The appropriate inquiry involves, principally, the reasonably
foreseeable effect of the change rather than the actual effect. U.S.
Customs Service (Washington, D.C.) and U.S. Customs Service, Northeast
Region (Boston, Massachusetts), 29 FLRA 891, 899 (1987). At the time
the new system was announced and at the time it was implemented, its
potential impact on the manner in which employees would be evaluated
under the simultaneously-implemented performance appraisal system could
hardly be overestimated. That the two systems being revised were to
operate in tandem is beyond question. Therefore, it is not appropriate
to view the new tracking system as simply the addition of two minor
clerical duties to each employee's responsibilities in connection with
each job assignment. The employees' legitimate concern was the impact
and implementation of the entire package of revisions to the
newly-integrated tracking and appraisal system. This package was the
subject of the Union's bargaining request, and I find that the
Respondent was obligated to honor that request. /13/ By implementing
the new package unilaterally, as far as the Union was concerned, the
Respondent refused to negotiate in violation of section 7116(a)(1) and
(5) of the Statute. Cf. Defense Logistics Agency, Defense Depot Tracy,
Tracy, California, 14 FLRA 475, 476 (1984) (sick leave call-in
procedures); Internal Revenue Service, Washington, D.C., 4 FLRA 488,
497-9 (1980) (live case reviews and cross-checks between travel
vouchers, signout sheets and time sheets).
The Remedy
The General Counsel seeks an affirmative order to the Respondent to
bargain over the impact and implementation of the Respondent's
unilateral changes. He does not seek a return to the status quo ante.
The Respondent contends that any remedy should be limited to bargaining
future changes, relying in part on the rescission of the changes as
implemented in November 1987 and the participation of Union President
Boyce in the process which led to reinstitution of the changes in 1988.
/14/
The ordinary prospective bargaining remedy for a refusal to bargain
over impact and implementation is that which the General Counsel seeks
-- an order to bargain over the impact and implementation, or, tracking
more closely the language of sections 7106(b)(2) and (b)(3) of the
Statute, to bargain over procedures and appropriate arrangements for
employees adversely affected by the unilateral changes that were made.
See, e.g., Customs Service, supra, 29 FLRA at 903; Environmental
Protection Agency and Environmental Protection Agency Region II, 25 FLRA
787 (1987).
Should this remedy be withheld because of the Union president's
participation in the reinstitution of the changes that were made
unilaterally and then rescinded? The record is not clear as to exactly
what role Mr. Boyce played in the second round of implementing the
changes, beyond his presence to settle the parties' dispute over the
Respondent's "formal discussion" obligation and, perhaps, as the
representative of the employees who grieved over the Respondent's
alleged failure to follow contractual procedures in its original
implementation of the changes. (See Tr. 132-134.) What is clear to me
is that the parties did not litigate the question of whether his being
invited and his participation satisfied the Respondent's obligation to
bargain over the impact and implementation of the reinstituted changes.
Nor was the evidence presented sufficient for me to conclude that the
invitation to Boyce gave the Union the requisite opportunity to bargain
over the impact and implementation of those changes. I shall therefore
recommend that the normal prospective bargaining order be issued. If a
dispute develops over the Respondent's complaince with that order the
Respondent should be permitte, in compliance proceedings, to offer
evidence that it has already complied. With that understanding, I
recommend that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is ordered that the Marine Corps
logistics Base, Barstow, California, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, concerning the procedures to be
observed in implementing the decision to institute a new
individual production reporting system and revise its performance
appraisal system, and concerning appropriate arrangements for
employees adversely affected by such changes.
(b) In any like ore related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Upon request, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, concerning the procedures to be
observed in implementing, and appropriate arrangements for
employees adversely affected by, the decision to institute a new
individual production reporting system and revise its performance
appraisal system.
(b) Post at its Marine Corps Logistics Base, Barstow,
California, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the commanding officer, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notice 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, Region VIII, Federal
Labor Relations Authority, 350 South Figueroa Street, Third Floor,
Los Angeles, California 90071, 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 8, 1988
JESSE ETELSON
Administrative Law Judge
FOOTNOTES
(1) In its motion to supplement its brief, the Respondent seeks to
add for consideration a decision of a court of appeals that issued after
the submission of its brief. United Mine Workers of America, District
31 v. NLRB, 879 F.2d 939 (D.C. Cir. 1989). It is the obligation of
parties to inform the Authority of cases deemed pertinent to a pending
case. The Authority can then determine their pertinence, and, if
necessary, request supplemental statements from the parties. Department
of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA No.
91 (1991) (Marine Corps Logistics Base). In this case, the Authority
takes notice of the decision of the court. However, the motion to
supplement Respondent's brief is denied to the extent that statements in
support of the motion are deemed unnecessary.
(2) In its brief, the Respondent specifically relies on provisions of
both Article 31, "pertaining to how standards are to be established
and/or modified, the restrictions regarding their use or application by
management," and Article 13, "permitting grievances over the
requirements of Article 31," which it characterizes as "matters relating
to the (impact and implementation) of Respondent's exercise of its
reserved rights respecting performance standards(.)" Respondent's brief
at 11-12.
As pertinent, Article 31, Performance Appraisal System, specifically
provides:
Section 3 Program Requirements and Procedures.
a. Establishment of Performance Elements and Performance
Standards.
(1) Performance elements and performance standards for each
element will be established in writing in accordance with
applicable regulations and communicated to the employee at the
beginning of each appraisal period. They must be consistent with
the employee's duties and responsibilities. Each position must
have at least one critical performance element, however, 3 to 5
may be ideal.
(2) Employees will be rated by rating officials in accordance
with DON regulations relating to levels of performance.
(3) Duties not considered critical may be identified in writing
and performance standards established. When noncritical
performance elements are used as part of the overall appraisal
process, the standards must be in writing.
(4) Employees will be given the opportunity to participate in
the establishment of performance standards. The standards will be
fair and reasonable and employees may advise management at any
time they believe performance standards should be changed.
(5) Performance elements and standards may be modified but must
be in writing on the Appraisal Form and given to the employee
during the appraisal period as work requirements change.
Employees may not be rated on the modified elements and standards
for at least 90 days.
(6) Employees on extended temporary assignments/appointments of
over 120 days will have elements and standards established for
that assignment/appointment.
(3) We do not adopt the Judge's characterization of the Preamble as
containing "a form of 'zipper' clause." As we held in Marine Corps
Logistics Base, referring to the same preamble, such language has no
effect on the statutory duty to bargain. 39 FLRA No. 91, slip op. at
10-11 n.4.
(4) Additional allegations of unfair labor practices in violation of
section 7116(a)(8) of the Statute were withdrawn at the hearing.
(5) I have also considered other MLA provisions to which the
Respondent refers in its brief. As is the case with the "past
practices" provision addressed in n.9, below, I am able to find no
arguable relevance of those provisions to the issues presented in this
case.
(6) All further dates are in 1987.
(7) I deem this generalized description of the above changes
sufficient because there is no contention that they are de minimis and
no issue as to the Respondent's obligation to bargain over their impact
and implementation except for the defenses, discussed below, which are
based on the MLA.
(8) Mr. Provart testified that although the new "tracking system" was
not used as an evaluation tool before November 1987, it had been
implemented "to a certain degree" earlier in 1987. The Respondent,
however, admits that the changes involved here were implemented in
November. Provart also gave a strong indication that this was the first
time the Respondent tracked the individual production of these employees
in this manner (Tr. 176). I was appreciative of Mr. Provart in another
respect. He livened the proceedings by his answer to the first question
asked him by Counsel for the General Counsel on cross-examination:
Q. It's Mr. Provart?
A. Close enough. I've been called worse.
(9) Employees apparently have no role, by contractual right, in the
establishment of performance elements. It is not clear whether they
have a contractual right to participate in the modification of either
performance elements or performance standards.
(10) What the Authority concluded in Wright-Patterson, in this
connection, was essentially that the provisions setting forth management
rights and obligations in making decisions to revise the appraisal
system did not affect the agency's obligation to bargain over the impact
and implementation of the revisions decided upon. Other cases cited by
the Respondent for the proposition that agencies do not violate the
statute when they unilaterally implement personnel actions by following
contract procedures are inapplicable. For example, in Naval Amphibious
Base, Little Creek, Norfolk, Virginia, 9 FLRA 774 (1982), the
contractual procedures followed were the very procedures on which the
parties had agreed as a result of their prior bargaining on impact and
implementation. Here, no such bargaining occurred.
(11) Although the Respondent recites in its brief the fact that on
prior occasions the Union had refrained from demanding to bargain over
performance standard revisions, it does not contend that such inaction
constituted a waiver. In any event, I find the meager evidence of prior
acquiescence insufficient to warrant such a conclusion.
(12) One of the provision cited maintains in effect all past
practices not altered by the agreement. In light of Respondent's
failure to argue that the Union's prior acquiescence in similar
unilateral changes created a past practice, I am unable to follow the
argument that this provision lends support to a finding of a waiver.
(13) Aside from the Union's request, the complaint alleges and the
answer admits that the Respondent made its changes without first
notifying the Union and affording it the opportunity to bargain on the
impact and implementation of the changes.
(14) The other points raised by the Respondent with respect to the
appropriate remedy appear to go only to its opposition to a status quo
ante remedy, which is not now an issue.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, concerning the procedures to be
observed in implementing, and appropriate arrangements for employees
adversely affected by, the decision to institute a new individual
production reporting system and revise its performance appraisal system.
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, negotiate in good faith with the American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, concerning the procedures to be
observed in implementing, and appropriate arrangements for employees
adversely affected by, the decision to institute a new individual
production reporting system and revise its performance appraisal system.
(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 VIII,
whose address is: 350 South Figueroa Street, Third Floor, Los Angeles,
California 90071, and whose telephone number is: (213) 894-3805.
39 FLRA 1117
39 FLRA NO. 96
Dept. of the Air Force, Griffis Air Force Base, Rome, New York and
AFGE, Local 2612 (Rinaldo, Arbitrator), Case No. 0-AR-1892 (Decided
March 13, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
VIOLATION OF DUE PROCESS
DECISION TO HOLD HEARING
PLACE OF HEARING
EX PARTE HEARING
DECISION BY OTHER ARBITRATOR
FAILURE TO RULE ON ISSUE
DIGEST NOTES
The Arbitrator found that the Union representative in the case had
acted in an irresponsible manner and dismissed the Union's grievance
over the elimination of various smoking areas for unit employees.
In its first exception, the Union contends that the Arbitrator's
decision to hold the hearing violated the Union's right to due process,
arguing that the Arbitrator was precluded from addressing the issue of
where to hold arbitration hearings because that issue had been submitted
to a different arbitrator. The Authority viewed the exception as a
contention that the Arbitrator had exceeded his authority, and
determined that the Arbitrator did not decide an issue that had not been
submitted to him. Moreover, the Authority did not view the issue
submitted to the other arbitrator as encompassing the issue before the
Arbitrator in this case.
In its second exception, the Union contended that by proceeding ex
parte the Arbitrator violated the Union's right to present grievances.
The Union argues that the courtroom was never agreed to by the parties
as the place to have arbitration hearings and that the Union was never
allowed to suggest other sites for the hearing. Noting its precedent
denying exceptions resulting from ex parte hearings, the Authority found
no basis for finding the award deficient because the Arbitrator
proceeded ex parte.
In its third exception, the Union contended that the award is
deficient because the Arbitrator never ruled on the issue of the
elimination of smoking areas, which the Authority construed as a
contention that the Arbitrator exceeded his authority by failing to
resolve the issue submitted. The Authority concluded that the
Arbitrator did resolve the issue submitted as to what should be the
disposition of the Union's grievance.
Case No. 0-AR-1892
U.S. DEPARTMENT OF THE AIR FORCE GRIFFISS AIR FORCE BASE ROME, NEW
YORK
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2612
(Union)
DECISION
March 13, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to
the award of Arbitrator Thomas N. Rinaldo. The Arbitrator found that
the Union representative in this case had acted in an irresponsible
manner and dismissed the Union's grievance over the elimination of
various smoking areas for bargaining-unit employees.
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.
We conclude that the Union's exceptions fail to establish that the
award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On August 18, 1989, the Union filed a grievance claiming that the
Agency had improperly eliminated smoking areas for some bargaining-unit
employees. The grievance was not resolved and was submitted to
arbitration.
After notification of his selection, the Arbitrator informed the
parties by letter that he was setting aside February 6, 1990, as a date
to hear the case. The Agency representative replied by letter that
February 6 was acceptable to management and that the staff judge
advocate (SJA) courtroom had been reserved for the arbitration. Local
Union President Joseph Sallustio replied by letter claiming that neither
management nor the Arbitrator has the right to decide where to hold the
hearing. The Union president also claimed that he had made it clear to
the Agency representative that the hearing in this case would have to be
postponed because the pending dispute between the parties over where to
hold arbitration hearings had not been resolved. Accordingly, the Union
president requested a postponement from the Arbitrator. However, he
agreed to hold the hearing if it were held at the officer's club.
In a letter to the Arbitrator, the Agency representative replied to
the Union president's letter. The representative rejected the officer's
club as a site for the hearing because of its social activities. The
representative maintained that the SJA courtroom had been used for 10
hearings with the Union without complaint and was specifically designed
for adversarial proceedings.
In a letter to the parties dated January 17, 1990, the Arbitrator
denied the Union's request for a postponement. He also informed the
parties that the arbitration hearing would convene in the SJA courtroom
at 10 a.m. on February 6, 1990, and that the Union at that time could
make a request to move the hearing to another location. The Arbitrator
stated that the request would be granted only if the Union could
demonstrate that the SJA courtroom was not appropriate for an
arbitration hearing.
On January 29, 1990, the Arbitrator received a letter from the Union
president stating that the Union would not participate. In a letter to
the Union president, dated February 2, 1990, the Arbitrator reminded
Union President Sallustio that he would entertain a motion on February 6
to relocate the hearing. On February 2, the Arbitrator also attempted
to arrange a conference call with the representatives, but Sallustio
refused to participate in any conference discussion.
In this award, the Arbitrator noted that on February 6, 1990, at 10
a.m., he and management appeared at the SJA courtroom and management was
ready to proceed. The Arbitrator further noted that at 10:30 a.m.,
after the Union failed to appear, he proceeded with the hearing by
taking testimony from a management witness.
In his award, the Arbitrator first discussed selection of the hearing
location. The Arbitrator noted that the only reason communicated by
Union President Sallustio for disagreeing with the courtroom site was
the fact that it was not mutually selected. The Arbitrator further
noted that the only alternative site offered by Sallustio was the
officer's club and that management had given several reasons for the
officer's club being inappropriate.
The Arbitrator rejected the Union's position that the hearing site
must be mutually selected. The Arbitrator noted the basic priniciple
that once selected by the parties, an arbitrator has the authority,
absent specific contract language to the contrary, to decide on all
preliminary issues involving the date, time, location, and conduct of
the hearing. After reviewing the parties' collective bargaining
agreement, the Arbitrator determined that the agreement does not limit
the authority of an arbitrator to set the hearing location, and, in
fact, the agreement affirmatively conveys to an arbitrator the authority
to resolve all preliminary issues, such as the hearing location. The
Arbitrator also stated that it was noteworthy that a number of
arbitration hearings had been held in the courtroom without objection
and that the only hearing held in the officer's club was when the
courtroom was unavailable.
With respect to his determination to conduct an ex parte proceeding,
the Arbitrator noted that it is well established that an arbitrator has
the authority to proceed ex parte when a party that has been duly
notified of the hearing fails to appear. The Arbitrator stated that
neither party to an arbitration can be permitted to frustrate or
invalidate the proceeding by withholding participation.
With respect to the merits of the grievance, the Arbitrator noted
that on August 18, 1989, the Union filed a grievance claiming that the
Agency had eliminated smoking areas. In response to the grievance, a
management representative requested that the specific locations be
identified. The Union did not respond to the request, but, instead,
demanded an arbitration panel. On September 6, 1989, after another
management request, Union President Sallustio specified the following
locations: "Finance/Controller area, Building 14, T-9/Roads and
Grounds, and 2019-GSG in several areas." Id. at 12.
The Arbitrator found that, during 1989, Union President Sallustio was
absent on extended sick leave and Chief Steward Thomas Merrick was the
Union's authorized representative. During Sallustio's absence, Merrick
and the Agency resolved many disputes including the dispute over the
designated smoking area in the Finance/Controller area. When Sallustio
returned from sick leave, he repudiated all the agreements made by
Merrick, and he filed grievances and unfair labor charges against the
Agency. The Arbitrator determined that the grievance before him
regarding the elimination of smoking areas was one of the issues that
Sallustio was attempting to relitigate.
The Arbitrator noted that the Agency responded to the Union's action
by filing a grievance and that the grievance was sustained by Arbitrator
William A. Babiskin after an arbitration hearing in which the Union
participated, but Sallustio did not. The Arbitrator also noted that
Arbitrator Babiskin found that the Union violated the parties'
collective bargaining agreement when Sallustio repudiated the agreements
with management and that the Union had demonstrated an irresponsible
attitude. The Arbitrator further noted that Arbitrator Babiskin had
directed that the Union cease and desist from such other and further
violations of the agreement in the future.
The Arbitrator stated that under Article 8(1)(f) of the parties'
collective bargaining agreement, the Union has the obligation to
"demonstrate a responsible attitude in conducting its business with
management." Id. at 14 (quoting the parties' collective bargaining
agreement). The Arbitrator concluded that "(t)he evidence
overwhelmingly establishes in this case that Mr. Sallustio has acted
grossly irresponsible (sic) in handling this entire issue." Id. The
Arbitrator found that the issue of a designated smoking area for the
Finance/Controller area had been agreed to in Sallustio's absence and
that Sallustio had ignored the agreement and filed a grievance. The
Arbitrator found that despite Arbitrator's Babiskin's award, finding the
Union's grievance to be without merit, Sallustio broadened the grievance
to include other areas on the base in addition to the Finance/Controller
area. The Arbitrator noted that management twice requested specifics of
the grievance before Sallustio responded and that Sallustio failed to
respond to management's investigation of the grievance and, instead,
filed for arbitration. The Arbitrator further noted that after an
arbitration date was set, Sallustio objected to the hearing location,
refused to participate in a discussion regarding the hearing location,
and, finally, boycotted the hearing.
The Arbitrator stated that "(i)n another arena, Mr. Sallustio's
irresponsible behavior might be surcharged or harsher penalties
imposed." Id. at 16. However, the Arbitrator concluded that he was
bound by the parties' collective bargaining agreement and was not
authorized to assess punitive relief. Accordingly, under the bounds of
the parties' agreement, as a remedy, the Arbitrator dismissed the
Union's grievance and directed Union President Sallustio to cease and
desist from his irresponsible behavior.
III. First Exception
A. Contentions
The Union contends that the Arbitrator's decision to hold the
arbitration hearing violated the Union's right to due process. The
Union argues that the Arbitrator was precluded from addressing the issue
of where to hold arbitration hearings because that issue had been
submitted to Arbitrator David C. Randles. The Union also argues that it
"made the Arbitrator aware of an agreement that had been made between
the (Agency's) and Union's representatives which required a postponement
of the hearing until the grievance filed by Management on the issue of
arbitration locations is concluded." Exceptions at 2. The Union asserts
that as a result it filed an unfair labor practice charge and that the
Arbitrator's refusal to "allow a postponement . . . violated the
Union's right to due process of the Unfair Labor Practice Charge which
would determine whether or not an agreement existed." Id.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient on any ground set forth in section 7122(a) of the Statute.
We view the Union's argument that the Arbitrator was precluded from
addressing the issue of where to hold arbitration hearings as a
contention that the Arbitrator exceeded his authority. We will find an
award in excess of the arbitrator's authority when the arbitrator
resolves an issue that has not been submitted by the parties to the
arbitrator. For example, General Services Administration and American
Federation of Government Employees, Local 2600, 34 FLRA 1123, 1128
(1990) (GSA). In our view, the Arbitrator, in this case, did not decide
an issue that had not been submitted to him. We find that the issue of
where to hold the arbitration hearing in this case was raised by the
Union in its objection to management's reserving the SJA courtroom for
the hearing and that, consequently, the Arbitrator did not exceed his
authority by resolving it. See U.S. Department of the Air Force,
Griffiss Air Force Base, New York and America Federation of Government
Employees, Local 2612, 36 FLRA 91, 95 (1990) (the arbitrator did not
exceed his authority by directing the Union to pay for one-half of the
hearing room rental fee because the Union had raised the issue of the
payment of the rental fees in its brief to the arbitrator when it
declared that it was not responsible for any of the fee); compare GSA
(arbitrator did not have authority to reopen his award to consider his
fee allocation because the parties had submitted that issue to another
arbitrator).
Moreover, we do not view the issue submitted by the parties to
Arbitrator David C. Randles to encompass the issue of where to hold the
arbitration hearing in this case in order to resolve the Union's
grievance over designated smoking areas. In denying the Union's
exceptions to Arbitrator Randles' award in U.S. Department of the Air
Force, Griffiss Air Force Base, Rome, New York and American Federation
of Government Employees, Local 2612, 38 FLRA 276, 281 (1990) (Griffiss
AFB), we noted that Arbitrator Randles' award did not require the
parties or another arbitrator to use the SJA courtroom or Building 14
classroom exclusively for arbitration hearings and the award did not
preclude the parties or another arbitrator from choosing another site.
Accordingly, we find that the Union fails to establish that the
Arbitrator was precluded from addressing the issue of where to hold the
arbitration hearing and the Union's contentions provide no basis for
finding the award deficient.
We also find that the Union's claims that it made the Arbitrator
aware of the parties' agreement to a postponement and that the
Arbitrator's refusal to grant a postponement deprived it of its right to
have its unfair labor practice charge adjudicated provide no basis for
finding the award deficient. In our view, the Union's claim that the
parties had agreed to a postponement constitutes nothing more than
disagreement with the Arbitrator's failure to find as a matter of fact
that the parties had such an agreement and the Arbitrator's conclusion
that the sole communicated reason for the Union's disagreement with the
courtroom site was that it was not mutually selected. Disagreement with
an arbitrator's findings and conclusions provides no basis for finding
an award deficient. For example, Federal Employees Metal Trades Council
and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth,
New Hampshire, 39 FLRA No. 1 (1991). Moreover, the Union fails to
establish on what basis the Union's unfair labor practice charge, filed
after the grievance, precluded the Arbitrator from resolving the Union's
request for a postponement, and none is apparent to us. Furthermore, we
note that the Union's unfair labor practice charge was ultimately
resolved, and the Regional Director, in refusing to issue a complaint in
Case No. 1-CA-00143, found that "it is far from clear as to what, if
anything, the parties agreed to" concerning postponement of the
arbitration hearing in this case and that the dispute did not amount to
an unfair labor practice. United States Air Force, Griffiss Air Force
Base, 416 Combat Support Group, Rome, New York, 1-CA-00143, Regional
Director's letter of April 26, 1990, refusing to issue complaint. In
effect, the Union's claims amount to nothing more than disagreement with
the Arbitrator's conduct of the hearing in refusing to grant a
postponement, but offering to entertain a motion to relocate the hearing
site. We have repeatedly held that 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.
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 acted improperly by denying the postponement and setting the
hearing location subject to a motion to relocate, and the Union's
arguments provide no basis for finding the award deficient.
Accordingly, we will deny this exception.
IV. Second Exception
A. Contentions
The Union contends that by proceeding ex parte the Arbitrator
violated the Union's right to present grievances. The Union argues that
the courtroom was never agreed to by the parties as a place to have
arbitration hearings and that the Union was never allowed to suggest
other sites for the hearing.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is
deficient on any ground set forth in section 7122(a) of the Statute.
In Griffiss AFB, 38 FLRA 276, we denied the Union's exception that
Arbitrator Randles' award was deficient because Arbitrator Randles
proceeded ex parte when the Union departed the hearing after its motion
to bifurcate was denied. We found that the Union cited to no provisions
of law prohibiting the arbitrator from proceeding ex parte and none were
apparent to us. 38 FLRA at 279. We also noted that the Authority in
similar cases denied exceptions to awards resulting from ex parte
hearings. Id. at 279-80. Accordingly, in this case, we similarly find
that no basis is provided for finding the award deficient because the
Arbitrator proceeded ex parte.
We also reject the Union's claim that it was never allowed to suggest
other sites for the hearing. The Arbitrator repeatedly informed Union
President Sallustio that he would entertain a motion on February 6,
1990, to relocate the hearing, but Sallustio chose not to participate.
Accordingly, we will deny this exception.
V. Third Exception
A. Contentions
The Union contends that the award is deficient because the Arbitrator
never ruled on the issue of the elimination of smoking areas. The Union
argues that the Arbitrator, instead, decided the issue of whether Union
President Sallustio was conducting himself in a responsible manner.
B. Analysis and Conclusions
We construe the Union's exception as a contention that the Arbitrator
exceeded his authority by failing to resolve the issue submitted, and we
conclude that the Union fails to establish that the award is deficient.
In our view, the Arbitrator did resolve the issue submitted as to
what should be the disposition of the Union's grievance. He concluded
that in view of the circumstances presented and within the bounds of the
parties' collective bargaining agreement, the grievance must be
dismissed, and he elaborated in detail n the basis for that
determination. He noted that Union President Sallustio had repudiated
the agreement over the designated smoking area in the Finance/
Controller area and filed the grievance in this case in an attempt to
relitigate the dispute. He also noted that the Union's actions in
repudiating the smoking area agreement, as well as other agreements, and
in filing th grievance in this case, as well as unfair labor practice
charges, were found by Arbitrator Babiskin to be irresponsible and in
violation of Article 8 of the parties' collective bargaining agreement.
He further noted that Arbitrator Babiskin had directed that the Union
cease and desist from such other and further violations of the agreement
in the future. We note that we have denied the Union's exceptions to
Arbitrator Babiskin's award in U.S. Department of the Air Force,
Griffiss Air Force Base, Rome, New York and American Federation of
Government Employees, Local 2612, 39 FLRA No. 77 (1991) (AFGE Local
2612). Citing Article 8 of the parties' agreement, the Arbitrator found
that Union President Sallustio had acted in a grossly irresponsible
manner in handling this entire issue. The Arbitrator found that despite
Arbitrator Babiskin's award, Sallustio broadened the grievance in this
case, delayed responding to management's request for more specifics, and
filed for arbitration without responding to management's investigation.
The Arbitrator further noted that after the arbitration date was set,
Sallustio objected to the hearing location, refused to participate in a
discussion regarding the hearing location, and, finally, boycotted the
hearing.
We conclude that the Union fails to establish that the Arbitrator
improperly considered these circumstances or improperly dismissed the
grievance in view of these circumstances. We note that Arbitrator
Babiskin had found that the Union's actions in filing the grievance in
this case and a number of unfair labor practice charges improperly
sought to evade and avoid its commitments in violatin of the parties'
collective bargaining agreement. AFGE Local 2612, slip op. at 3-4.
Arbitrator Babiskin emphasized that he was not holding that the mere
filing of grievances or unfair labor practice charges constitutes a
violation of the parties' agreement, but that the Union's actions in
filing the grievance in this case and the unfair labor practice charges
were improper because they were acts of harassment for the sake of
harassment. Id. at 4. We specifically held in AFGE Local 2612,
concerning Arbitrator Babiskin's determination that the filing of the
grievance in this case violated the parties' collective bargaining
agreement because it was filed as an act of harassment, that nothing
protects the filing of a grievance for harassment purposes. Id. at 7.
Accordingly, we will deny this exception.
VI. Decision
The Union's exceptions are denied.
39 FLRA 1113
39 FLRA NO. 95
Dept. of the Army, Aviation Center, Fort Rucker, Alabama and AFGE,
Local 1815 (Nigro, Arbitrator), Case No. 0-AR-2013 (Decided March 12,
1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
ARBITRABILITY
GRIEVANCE UNTIMELY FILED
VIOLATION OF LAW
FAIR LABOR STANDARDS ACT
FAILS TO DRAW ESSENCE
NONFACT
DIGEST NOTES
The grievance alleged that the employee had performed higher-graded
duties for 23 months, but was paid for only 4 months at the higher
salary. The Arbitrator determined that the grievance was not arbitrable
because it had not been timely filed, and denied the grievance.
The Authority denied the exceptions, rejecting the Union's contention
that the grievance was timely filed pursuant to the Fair Labor Standards
Act. The Authority concluded that the Union had not shown that time
periods applicable to lawsuits under the Act apply to grievances filed
under the agreement. Also rejected were the contentions that the award
failed to draw its essence from the agreement, and that the award was
based on a nonfact, such contentions constituting mere disagreement with
the Arbitrator's interpretation of the agreement and his findings and
conclusions regarding the grievant's failure to comply with the
procudural requirements of the agreement.
Case No. 0-AR-2013
U.S. DEPARTMENT OF THE ARMY AVIATION CENTER FORT RUCKER, ALABAMA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1815
(Union)
DECISION
March 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to the award of
Arbitrator Felix A. Nigro. The grievant filed a grievance alleging that
she had performed higher-graded duties for 23 months, but was paid for
only 4 months at the higher salary. The Arbitrator determined that the
grievance was not arbitrable because it had not been timely filed, and
he denied the grievance.
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 following reasons, we conclude that the Union's exceptions
provide no basis for finding the award deficient. Accordingly, we will
deny the exceptions.
II. Background and Arbitrator's Award
On January 23, 1990, the grievant filed a grievance alleging that she
had performe higher-graded duties from May 5, 1986, through April 1,
1988. The grievant further alleged that she was paid at the higher
grade for only 4 months during that time period. The grievant contended
that she was not "aware that she was entitled to 19 months back pay with
interest under the Back Pay Act." Award at 1.
The Agency contended that the grievance was not timely filed under
Article 36, Section 9 of the parties' collective bargaining agreement.
/*/ The Union contended that the grievance was timely filed because
the grievant was not aware of her rights under the Back Pay Act until
the grievance was filed.
The Arbitrator found that the grievance was not filed within the time
limit set forth in the parties' agreement. Therefore, the Arbitrator
concluded that the grievance was not arbitrable and he denied the
grievance. The Arbitrator stated that "(a)s a supervisor and employee
of some years, the grievant should have, or must have, known about any
rights under the Back Pay Act long before she filed her grievance on
January 23, 1990." Id.
III. Position of the Parties
A. The Union
The Union contends that the award is contrary to law, rule or
regulation. The Union argues that because the grievant was denied wages
to which she was entitled under the Fair Labor Standards Act of 1938, as
amended, (the Act), the Act controls whether the grievance was timely
filed. The Union also argues that a "reasonable interpretation" of the
parties' agreement leads to a conclusion that the "(a)greement must . .
. yield to higher authority." Exceptions at 2. The Union also contends,
in this regard, that the Arbitrator's interpretation of the agreement
constituted "harmful error." Id. at 3. Finally, the Union asserts that
the Arbitrator based his decision on "facts not in evidence" concerning
the grievant's knowledge about her rights. Id.
B. The Agency
The Agency contends that the Union's exceptions should be denied
because they constitute nothing more than disagreement with the findings
of the arbitrator.
IV. Analysis and Conclusions
We reject the Union's contention that the grievance was timely filed
pursuant to the Fair Labor Standards Act, as amended, and therefore, the
"statute of limitations contained in the (c)ollective (a)greement must
defer to statutory preemption." Exceptions at 3. The Union has not
shown, and it is not otherwise apparent, that time periods applicable to
lawsuits under the Act apply to grievances filed under a collective
bargaining agreement.
We construe the Union's arguments regarding the Arbitrator's
interpretation of the parties' agreement as contentions that the award
fails to draw its essence from the agreement. To demonstrate that an
award fails to draw its essence from an agreement, a party must show
that the award: (1) cannot in any rational way be derived from the
agreement; or (2) is so unfounded in reason and fact, and so
unconnected with the wording and the purpose of the agreement as to
manifest an infidelity to the obligation of the arbitrator; or (3)
evidences a manifest disregard for the agreement; or (4) does not
represent a plausible interpretation of the agreement. For example, U.
S. Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
1923, 37 FLRA 1144, 1150 (1990).
The Union has not demonstrated that the award fails to draw its
essence from the parties' agreement under any of these tests. The
Arbitrator addressed, and rejected, the Union's argument that the
grievance was timely filed because the grievant's lack of knowledge
about her rights under the Back Pay Act constituted a "'continuing
condition.'" Award at 1 (quoting parties' agreement). Nothing in the
Arbitrator's interpretation of the relevant portion of the parties'
agreement is irrational or implausible. Accordingly, there is no basis
on which to conclude that the award fails to draw its essence from the
agreement.
Finally, we construe the Union's argument that the Arbitrator relied
on facts that were not in evidence as a contention that the award is
based on nonfacts. For an award to be found deficient on this basis, a
party must demonstrate that the central fact underlying the award is
clearly erroneous and is a gross mistake of fact, but for which a
different result would have been reached. For example, U.S. Department
of Health and Human Services, Social Security Administration, San
Francisco Region and American Federation of Government Employees,
Council 147, 38 FLRA 1183, 1187 (1990).
The Union asserts that the Arbitrator erred in basing his award on
his "assum(ption) . . . that . . . long(-)time employees are educated on
circumstances giving rise to remedies(.)" Exceptions at 3-4. Contrary
to the Union's assertion, however, the Arbitrator's award evidences no
such assumption. In addressing the Union's argument that the grievance
was timely filed because the grievant's lack of knowledge about
provisions of the Back Pay Act constituted a continuing condition, the
Arbitrator stated that the grievant "should have, or must have, known"
of her rights under the Back Pay Act. Award at 1. There is no basis on
which to conclude that the Arbitrator based his award on an assumption
that the grievant was aware of her rights under the Back Pay Act.
Accordingly, even if such assumption were clearly erroneous, the Union
has not demonstrated that the assumption was a central fact underlying
the award. The Union has not demonstrated, therefore, that the award is
based on a nonfact.
In our view, the Union's exceptions constitute mere disagreement with
the Arbitrator's interpretation of the parties' agreement and with his
findings and conclusions regarding the grievant's failure to comply with
the procedural requirements of the agreement. Exceptions merely
disagreeing with arbitral determinations regarding the procedural
arbitrability of a grievance generally provide no basis for finding an
award deficient. For example, U.S. Department of the Air Force, San
Antonio Air Logistics Center, Kelly Air Force Base, Texas and American
Federation of Government Employees, Local 1617, 35 FLRA 372, 374 (1990);
Naval Plant Representative Office and National Association of
Government Employees, Local R1-143, 34 FLRA 234, 236 (1990).
Accordingly, we will deny the exceptions.
V. Decision
The Union's exceptions are denied.
FOOTNOTES
(*) Article 36, Section 9 provides that "(g)rievances resulting from
a one-time act or decision must be initially presented within 20
calendar days after learning about the matter giving rise to the
grievance. Grievances resulting from continuing conditions may be
presented at any time." Award at 1.
39 FLRA 1109
39 FLRA NO. 94
Dept. of the Navy, Naval Resale Activity, Guam and AFGE, Local 1689
(Gilson, Arbitrator), Case No. 0-AR-2025 (Decided March 12, 1991)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
TIMELINESS
SERVICE OF THE AWARD
CERTIFIED MAIL
INTENDED PERSONAL SERVICE
FILING FROM OUTSIDE CONTINENTAL UNITED STATES
INTERNATIONAL DATE LINE
EXTRAORDINARY CIRCUMSTANCES
DIGEST NOTES
At issue was the timeliness of the Union's exceptions. The
Arbitrator's award was postmarked October 18, 1990. The Union's
exceptions therefore had to be postmarked or received in person at the
Authority no later than November 21, but were not postmarked until
November 26. The Authority rejected the Union's argument that as the
Arbitrator sent the award by certified mail, return receipt requested,
the Arbitrator intended personal service of the award, which was on
October 27, the date the Union received the award. The Authority noted
in this regard that it is well established that the date of receipt of
the award is not controlling in the determination of timeliness of
exceptions.
Also rejected was the Union's argument that the application of the
principle of service by mail in the instant case would be unfair and
unjust since the "mainland" parties are given 5 days for service, but in
Guam are only provided 4 days because Guam is geographically on the
other side of the international date line and a day ahead of the
continental U.S. The Authority noted that it has held that delay
involved in overseas mailing, in and of itself, will not establish
extraordinary circumstances. After reviewing the application of the
timeliness regulations to the instant case, the Authority noted that the
Union had a sufficient opportunity to file timely objections.
Case No. 0-AR-2025
U.S. DEPARTMENT OF THE NAVY NAVY RESALE ACTIVITY, GUAM
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1689
(Union)
ORDER DISMISSING EXCEPTIONS
March 12, 1991
On February 1, 1991, the Authority issued an Order dismissing the
Union's exceptions to the award of Arbitrator Thomas Q. Gilson in the
above-captioned case for failure to respond to the Authority's January
9, 1991 Order directing the Union to show cause why its exceptions
should not be dismissed as untimely filed.
Subsequent to the issuance of the Authority's February 1, 1991 Order,
the Authority received the Union's response to its January 9, 1991 Order
to Show Cause. The envelope containing the Union's submission is
postmarked January 25, 1991 and establishes that the Union's submission
was timely filed. Therefore, the Authority's February 1, 1991 Order is
rescinded. However, for the reasons stated below, the Union's
exceptions are dismissed as untimely filed.
The time limit for filing exceptions to an arbitration award is 30
days beginning on the date the award is served on the filing party. 5
C.F.R. Section 2425.1(b). The date of service is the date the
arbitration award is deposited in the U.S. mail or is delivered in
person. 5 C.F.R. Section 2429.27(d). If the award is served by mail, 5
days are added to the period for filing exceptions to the award. 5
C.F.R. Section 2429.22. The time limit may not be extended or waived by
the Authority. 5 C.F.R. Section 2429.23(d). See U.S. Department of
Housing and Urban Development and American Federation of Government
Employees, AFL-CIO, Local 476, 27 FLRA 852 (1987). See also U.S.
Department of the Air Force, Albrook Air Force Base, Panama and National
Maritime Union, 39 FLRA No. 51 (1991).
The Union's submission in response to the Authority's Order to Show
Cause includes a copy of the envelope in which the Arbitrator
transmitted his award to the Union. The envelope shows a meterd
postmark of October 18, 1990. As the Arbitrator's award was served on
the Union by mail on October 18, 1990, the Union's exceptions to the
award had to be either postmarked by the U.S. Postal Service or received
in person at the Authority no later than November 21, 1990, in order to
be considered timely. 5 C.F.R. Sections 2425.1(b), 2429.21(b) and
2429.22. The Union's exceptions were filed (postmarked) on November 26,
1990.
The Union argues that the Arbitrator sent his award by certified
mail, return receipt requested because the Arbitrator intended personal
service on the Union. The Union concludes that since the award could
not have been served on any person other than Mr. Cruz, the Union
President, personal service was made upon the Union on October 27, 1990,
the date the Union received the award. Consequently, the Union argues
that the 30-day period for filing exceptions commenced on the date of
receipt and the Union's exceptions should be considered timely filed.
It is well established that the date of receipt of the award is not
controlling in the determination of the timeliness of exceptions. U.S.
Department of Health and Human Services, Federal Employees, Council of
Consolidated Social Security Administration Locals 15 FLRA 1055 (1984).
Instead, the date of service of the award -- the date that the matter
served is deposited in the U.S. mail or is delivered in person --
controls. 5 C.F.R. Section 2429.27(d). In addition, the Union's
argument that certified mail is a form of personal delivery is
misplaced. Section 2429.27(b) of our Regulations provides that service
of any document "shall be made by certified mail or in person."
(Emphasis added). Clearly, the Authority's regulations contemplate two
(2) modes of service, one by certified mail and the other by personal
service. See also American Federation of State, County and Municipal
Employees, Local 478 and U.S. Commission on Civil Rights 20 FLRA 164
(1985).
The Union further argues that the application of the principle of
service by mail in the instant case would be "extremely unfair and
unjust" to the Union since "mainland" parties are given five (5) days
for service by mail and Guam parties are only provided four (4) days
because Guam is geographically on the other side of the international
date line and a day ahead of the continental U.S. The Union also states
that mail from the U.S. does not arrive in Guam timely, and that there
is considerable delay and back log of mail in Hawaii.
In Overseas Federation of Teachers, AFT, AFL-CIO and Department of
Defense Dependents Schools, Mediterranean Region, 32 FLRA 366 (1988)
(DODDS), the Authority held that delay involved in overseas mailing, in
and of itself, will not establish "extraordinary circumstances" within
the meaning of the Authority's Rules to warrant reconsideration of an
Authority Order dismissing exceptions to an arbitration award as
untimely filed.
In calculating the time limit for filing exceptions to an arbitration
award, the expiration date of the initial period for filing exceptions
provided by section 2425.1 of the Authority's Regulations must first be
determined. If an award was served by mail, the additional 5 days
authorized under section 2429.22 must than be added. In the present
case, the computation for determining the due date for the Union's
exceptions is as follows: The Arbitrator served his award on October
18, 1990. The 30-day period for filing exceptions to the Arbitrator's
award expired on November 16, 1990. Since the award was served by mail,
5 additional days must be added to the due date. Therefore, by
operation of section 2429.22, the due date was November 21, 1990. Even
if an additional day were added to the time provided under section
2429.22 for service by mail, consistent with the Union's argument that a
day is lost because of the international date line, the due date would
be November 22, 1990.
In DODDS, just as in this case, the union had a sufficient
opportunity to file timely exceptions. The Union received the
Arbitrator's award on October 27, 1990, and had until November 21, 1990,
or 25 days, /*/ in which to file timely exceptions. The Union's
exceptions were filed (postmarked) on November 26, 1990.
The Union's exceptions were not filed with the Authority within the
prescribed time limit. As the time limit for filing exceptions may not
be extended or waived by the Authority, the Union's exceptions are
dismissed.
For the Authority.
Alicia N. Columna
Director, Case Control Office
FOOTNOTES
(*) If an additional day were added to the due date because of the
international date line, the Union would have had 26 days to file its
exceptions.
39 FLRA 1103
39 FLRA NO. 93
Dept. of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and
Tidewater Virginia, Federal Metal Trades Council (Upson, Arbitrator),
Case No. 0-AR-1963 (Decided March 12, 1991)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION EXCEPTION
DISCIPLINE FOR JUST CAUSE
FPM CHAPTER 751, SUBCHAPTER 1-3 b.
"Z" LEAVE
DIGEST NOTES
The Arbitrator denied a grievance concerning whether the grievant was
improperly issued a letter of reprimand and denied 4 hours of pay
because of his alleged unauthorized absence from work for 4 hours,
finding that there was just cause for the Agency's action. The
Authority concluded that the Union had failed to establish that the
award is deficient, rejecting the contention that the grievant wa
improperly placed on "z" leave and that the letter of reprimand was
issued in violation of FPM chapter 751, subchapter 1-3 b.
Case No. 0-AR-1963
U.S. DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD PORTSMOUTH,
VIRGINIA
(Agency)
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL
(Union)
DECISION
March 12, 1991
Before Chairman McKee and Members Talkin and Armendariz
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator Richard M. Upson. The award resolved two grievances. The
first grievance concerned whether the grievant was improperly denied 4
hours of official time to conduct Union business on August 25, 1989.
The Arbitrator found that the Agency's action violated the parties'
agreement and, therefore, he granted this grievance. No exceptions were
taken to this aspect of the Arbitrator's award and we will not address
it further.
The second grievance concerned whether the grievant was improperly
issued a letter of reprimand and denied 4 hours of pay because of his
alleged unauthorized absence from work for 4 hours on August 30, 1989.
The Arbitrator denied this grievance, finding that there was just cause
for the Agency's action. The Union filed an exception to this part of
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
exception.
We conclude that the Union has not established that the award is
deficient under section 7122 of the Statute. Accordingly, we deny the
Union's exception.
II. Background and Arbitrator's Award
The issue before the Arbitrator was whether the grievant was
improperly issued a letter of reprimand by his general foreman on
October 25, 1989 for "'disobedience to a constituted authority on August
30, 1989, first offense' and not paid for four (4) hours on August 30,
1989(.)" Award at 1.
On August 30, 1989, the grievant requested and was granted 4 hours of
official time to conduct Union business. Sometime after noon of the
same day, the grievant phoned his supervisor to request an additional 4
hours. The supervisor was on leave at that time. After the supervisor
returned, she denied the grievant's request, directed him to return to
work, and suggested that the grievant see the general foreman. Later on
August 30, 1989, the general foreman directd the grievant's suprvisor
"to place (the grievant) on 'Z' leave (unauthorized leave-no
pay/benefits)." Id.
"(A)fter appropriate pre-action investigation, discussions, etc.(,
the general foreman) issued the October 25, 1989 Letter of Reprimand,
the subject of the grievance." Id. The letter of reprimand stated that
it was "issued as a penalty for (the grievant's) disobedience to a
constituted authority on 30 August 1989, first offense." Exception,
Joint Exhibit 2, Attachment dated October 25, 1989. The letter stated
that the time that the grievant was away from work on the afternoon of
August 30, 1989, "has been charged to absence without authority ("Z"
leave)." Id.
The Arbitrator noted that "Article 31 (of the parties' agreement)
requires that disciplinary action will be taken only for just cause."
Id. at 7. The Arbitrator also noted that neither the parties' agreement
nor the Agency's Instruction pertaining to "Disciplinary Actions," which
he found was "covered under the provisions of Article 2 of the Labor
Agreement," defined "just cause." Id.
Upon consideration of the evidence and the testimony of the
witnesses, the Arbitrator concluded that the "appropriate actions
required by Articles 31 and 33 of the parties' agreement were followed;
i.e., pre-action investigation, Steps 2 and 3, timeliness." Id. at 3 and
7. In considering the Agency's pre-action investigation, the Arbitrator
further determined that the "judge" of that investigation "obtain(ed)
substantial evidence or proof that the employee was guilty as
charged(.)" Id. at 8. Further, the Arbitrator stated that although he
was concerned about the Agency's failure to indicate why informal
disciplinary action was not considered in this case, he could not
"convince (himself) to overturn the (Agency's) decision" to issue the
letter of reprimand to the grievant for his unauthorized absence for 4
hours on August 30, 1989. Id. at 9. The Arbitrator "encourage(d) the
(Agency) to review this case in light of (his) comments and consider the
voluntary rescinding of the (l)etter f (r)eprimand, to be replaced by an
(o)ral (a)dmonition." Id. As his award, the Arbitrator denied the
grievance, noting his recommendation to the Agency.
III. Exception
The Union contends that the Arbitrator's award is in "direct
violation" of Federal Personnel Manual (FPM) chapter 751, subchapter 1-3
b., Enforced Leave, which states:
b. Disciplinary situations. In a personal, disciplinary-type
situation, the placing of an employee on leave without his consent
constitutes a suspension. An agency must observe the appropriate
procedures of part 752 when using enforced leave as a disciplinary
action, as part of a disciplinary action, or as a prelude to a
possible disciplinary action, such as pending investigation or
inquiry.
(Emphasis supplied by the Union.) /*/
The Union contends that the grievant was placed on "Z" leave for 4
hours without the grievant's consent and prior to a pre-action
investigation and that, therefore, the "letter of reprimand was issued
in violation of FPM (chapter 751)." Exception at 1.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the award is
deficient on any of the grounds set forth in section 7122(a) of the
Statute. The Union has failed to establish 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.
The Union's contention that the grievant was improperly placed on "Z"
leave and that the letter of reprimand was issued in violation of FPM
chapter 751, subchapter 1-3 b. is premised on the assertion that "Z"
leave constituted "enforced leave" under FPM chapter 751, subchapter 1-3
b. Under FPM, chapter 751, subchapter 1-3 a., enforced leave pertains
to an employee's "involuntary absence (from work) imposed by an agency"
because it believes the employee's "presence either constitutes an
emergency or is otherwise highly undesirable(.)"
In this case, as noted above, an issue before the Arbitrator was
whether the grievant was improperly issued a letter of reprimand as "a
penalty for (his) disobedience to (his supervisor's direction to report
back to work) on August 30, 1989." See Award at 1 and Exception, Joint
Exhibit 2, Attachment dated October 25, 1989. The Arbitrator determined
tha the appropriate actions required by Articles 31 and 33 of the
parties' agreement were followed. The Arbitrator also determined that
the "judge" of the pre-action investigation obtained substantial
evidence that the grievant failed to report back to work as directed by
his supervisor. See Award at 8 and Exception, Joint Exhibit 2,
Attachment dated August 31, 1989.
As the Arbitrator found that the record supported the conclusion that
the grievant failed to return to work as directed by his supervisor, the
Union's contention that the grievant was improperly placed on "Z" leave
is not supported. We further find that the Union has not demonstrated
that "Z" leave constitutes "enforced leave" as defined by FPM chapter
751, subchapter 1-3 a. The Union has not shown that the grievant's
absence from duty was required by management because it believed the
grievant's presence constituted an emergency or was highly undesirable.
As noted above, the grievant was charged with "Z" leave, that is,
"unauthorized leave-no pay/benefits," because of his unauthorized
absence from work. Award at 4. Under "Z" leave, the employee receives
no pay/benefits, while under enforced leave an agency is required to
charge an employee's forced absence from duty to "appropriate
conventional leave" and if the situation continues, prior to a
determination to suspend or to remove, to continue the employee in a
"pay status without charge to leave" for the appropriate time. See FPM
Chapter 751, subchapter 1-3 a(1), (2) and (3). Noting the differences
between "Z" leave and enforced leave as described above, we find that
the Union has not established that "Z" leave constitutes enforced leave.
Thus, based on the above, we find that the Arbitrator's award denying
the grievance concerning the Agency's issuance of the letter of
reprimand is not contrary to FPM chapter 751.
We conclude, therefore, that the Arbitrator's award denying the
grievance is not deficient under section 7122(a) of the Statute. The
Union's exception constitutes nothing more than disagreement with the
Arbitrator's evaluation of the evidence and an attempt to relitigate the
merits of this case before the Authority. Such disagreement provides no
basis for finding the award deficient. See, for example, Social
Security Administration and American Federation of Government Employees,
Local 1923, 35 FLRA 160 (1990).
V. Decision
The Union's exception is denied.
FOOTNOTES
(*) Relevant sections of FPM chapter 751, subchapter 1-3 a. are set
forth in the appendix to this decision.
APPENDIX
FPM chapter 751, "Enforced Leave," subchapter 1-3 provides in
relevant part:
a. Emergency situations. Emergency situations, involving the
need to get the employee off the premises immediately, sometimes
develop before any sort of disciplinary action has been initiated
or decided upon. The latitude agencies have to cope with these
nondisciplinary situations is described in 38 Comp. Gen. 203.
This decision dealt with, first, the circumstances under which an
agency may require an employee who is ready and willing to perform
his duties to absent himself because the agency believes his
presence either constitutes an emergency or is otherwise highly
undesirable; and, second, what the employee's leave and pay
status should be during any such period of involuntary absence
imposed by the agency. In this decision the Comptroller General
held that:
. . . .
(3) During investigations of employees for wrong-doing when it
is in the interest of the Government to have the employee off the
job preliminary to a determination to suspend or remove, it is not
proper to place the employee in an enforced leave status.
Instead, the employee may be relieved from duty and continued in a
pay status without charge to leave for such time, not to exceed
five days, as is necessary to effect his suspension.
39 FLRA 1087
39 FLRA NO. 92
NFFE, Local 1655 and Dept. of Defense, Department of Military
Affairs, Springfield, Illinois, Case No. 0-NG-1756 (Decided March 12,
1991)
STATUTE
7105(a)(2)(E)
7117(a)(1)
7103(a)(14)(C)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY DETERMINATION
AGENCY RESPONSE TO UNION FOIA REQUESTS
5 U.S.C. 552
PRIVACY ACT
IDENTIFIERS
SOCIAL SECURITY NUMBERS
IMMUNITY FOR UNIT EMPLOYEES FROM "PERSONAL LIABILITY" LAWSUITS
INCONSISTENT WITH LAW
CONDITIONS OF EMPLOYMENT
DIGEST NOTES
Proposal 1, which would require the Agency to furnish information to
the Union under the FOIA to the extent that providing the information is
not prohibited by law and that the Union retains its right to obtain
relevant data/information notwithstanding the existence of the Privacy
Act, was found to be inconsistent with law. Noted was the conclusion
that the proposal would require the Agency to provide information that
may not be released under the Privacy Act without an employee's consent.
Proposal 2 provides, as relevant, that information which could have
"possible adverse or harmful effects on an employee" will be provided to
the Union in a "sanitized" form. The Authority determined that because
they were unable to determine the meaning of the "possible adverse or
harmful effects" standard, the record was insufficient to make a
negotiability determination. The Authority noted that to the extent
that the standard would require the Agency to release information which
it would be authorized to withhold under FOIA and which, in turn, would
be prohibited from disclosure under the Privacy Act, the proposal is
inconsistent with law. However, to the extent that the "possible
adverse and harmful effects" standard would require the Agency to
release only the information that it would be required to release under
FOIA, the proposal merely means the Union is proposing to receive only
the information that it would be entitled to receive under law. Under
that interpretation, the proposal would be consistent with law.
Proposal 3, which requires the Agency to provide the Union with any
"identifiers" that are necessary to retrieve requested information was
found to be inconsistent with law, the Authority noting that the term
"identifiers" encompasses Social Security numbers, whose disclosure may
constitute a "clearly unwarranted invasion of privacy" within the
meaning of Exemption (b)(6) of FOIA.
Proposal 4, which requires the Agency to waive any fees under the
FOIA that would be necessary to cover the costs of providing requested
information, was found to not concern conditions of employment of unit
employees. The Authority stated that an Agency's policy regarding fee
requests does not become a condition of employment simply because the
Union elected to seek information under the FOIA and consequently is
treated as part of the general public.
Proposal 5, which provides that the Agency is not relieved of its
obligation to provide information to the Union simply because the Union
could also obtain the information from employees, was found to be
consistent with law and regulations and negotiable.
Proposals 6 and 8, which establish the conditions under which unit
employees will be immune from lawsuits for actions taken in the course
of their employment and the scope of that immunity, were found to
concern matters that are excluded from the definition of conditions of
employment under 7103(a)(14)(C) because they are specifically provided
for by Federal statute, namely, the Federal Torts Claims Act. Proposal
7, which provides employees with immunity, under certain conditions,
from suits alleging violations of an individual's constitutional rights,
was found to be violative of law because it would afford Federal
employees immunity as to matters for which, under Federal law, they are
liable.
Case No. 0-NG-1756
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 1655
(Union)
and
U.S. DEPARTMENT OF DEFENSE DEPARTMENT OF MILITARY AFFAIRS
SPRINGFIELD, ILLINOIS
(Agency)
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
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) by the Union. The dispute concerns the
negotiability of eight proposals. Proposals 1 through 5 prescribe the
conditions that will govern the Agency's response to Union requests for
information under the Freedom of Information Act, 5 U.S.C. Section 552
(FOIA). Proposals 6 through 8 provide immunity for unit employees from
"personal liability" lawsuits arising out of their employment.
We find that Proposals 1 and 3 are nonnegotiable because they are
inconsistent with law and that Proposal 4 is nonnegotiable because it
does not concern the conditions of employment of bargaining unit
employees. We dismiss the petition for review as to Proposal 2 because
we are not able to determine its negotiability. We find that Proposal 5
is consistent with law and negotiable. We find that Proposals 6 and 8
are nonnegotiable because they concern matters that are excluded from
the definition of "conditions of employment" under section 7103(a)(14)(
C) of the Statute. We find that Proposal 7 is nonnegotiable because it
is inconsistent with law.
II. Proposals 1-5
Proposal 1
The Employer will furnish, upon request by the Union, data/
information not prohibited by law. The Union retains its right as the
exclusive representative, to obtain relevant data/information not
withstanding (sic) the existence of the Privacy Act.
Proposal 2
Data/information which could have possible adverse or harmful effects
on an employee will be provided to the Union in a sanitized form, unless
the employee agrees to it. When data/information is to be santized the
Union will be informed of which data/information and why, in writing.
Proposal 3
When identifiers are required, the Employer will provide them to the
Union.
Proposal 4
Any data/information provided to the Union will be at no cost.
Proposal 5
Data/information that the Union could receive from an employee, does
not relieve the Employer from providing that data/information to the
Union.
A. Positions of the Parties
1. Agency
In the Agency's written allegation of nonnegotiability, the Agency
states that Proposals 1 through 5 concern its compliance with the
Freedom of Information Act, 5 U.S.C. Section 552 (FOIA), and the Privacy
Act, 5 U.S.C. Section 552a, and that the Union's rights to information
under section 7114(b)(4) of the Statute are not in question. Petition
for Review, Attachment 1.
The Agency states that, "by the plain language of the proposals," it
is clear that "they have the goal of obtaining information upon request
without consideration to the FOIA, Privacy Act, and the privacy of
employees." Agency's Statement of Position (Agency's Statement) at 1.
The Agency also states that the proposals would permit the Union to
obtain information about military personnel and that such information is
not releasable. Id.
The Agency contends that Proposal 1 is inconsistent with the Privacy
Act because it would require disclosure of information prohibited by
that Act. Id. at 2. The Agency also contends that Proposal 2 is
inconsistent with the Privacy Act because requiring the Agency "to
inform the (U)nion of which data has been sanitized, and why(,)" is
"tantamount to furnishing the sanitized data itself." Id.
The Agency asserts that Proposal 3 "lacks specificity as to what
constitutes identifiers under the FOIA(,)" and notes that "identifiers"
are "not needed by a requestor to obtain information." Id. The Agency
also notes that the Union is required under section 7114 of the Statute
and 5 C.F.R. Section 297.201(d)(1) to specify the data it needs to
fulfill its responsibilities. The Agency argues that it has "no
obligation to tell the (U)nion what it wants by the furnishing of
identifiers(,)" particularly because some identifiers are "covered by
the Privacy Act, e.g., an individual's social security number and home
address." Id.
The Agency contends that Proposal 4 is inconsistent with 5 C.F.R.
Part 297 because, under the FOIA, "there must be an assessment of the
public interest before a fee waiver can be made" and "the proposal does
not permit this assessment." Id.
The Agency contends that Proposal 5 precludes management from
balancing the Union's need for the information against an employee's
right to privacy. Id. The Agency notes that the fact that the
information requested by the Union might be available from an employee
is a factor to be weighed in balancing the interests of the Union and
the employee. The Agency contends that, contrary to the requirements of
the proposal, the Union must prove that alternate means of communication
are insufficient before management is required to release information.
Id. at 3. The Agency cites FLRA v. U.S. Department of the Treasury,
Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) (Financial
Management Service), in support of its last argument.
2. Union
In its Petition for Review, the Union states that "Proposals 1
through 5 are addressing Freedom of Information." Union's Petition for
Review (Petition) at 1. In its conclusion regarding Proposals 1-5, the
Union refers to the "Freedom of Information Act." Id. at 3. The Union
also states that the Agency has an obligation to bargain on "Freedom of
Information" because it is a matter "affecting working conditions." Id.
at 1.
As to Proposal 1, the Union explains that it "is only requesting
relevant data/information that would have significant and demonstrable
bearing on the matter at hand, and affording evidence tending to prove
or disprove the matter at issue which would bear upon a particular
case(.)" Id. The Union also claims that the proposal would not require
the Agency "to abdicate any legal responsibility as stated by law," that
the proposal would not require any "blanket disclosures," and that the
proposal requires "only relevant data/information" to be provided the
Union "as the exclusive bargaining representative of employees within
the bargaining unit." Id. at 2.
The Union states that, under Proposal 2, "if any data/information
will have possible adverse or harmful effects on an employee," the
Agency may "sanitize the form, unless the employee states they do not
have to." Id. The Union explains further that the proposal is intended
to prevent the "arbitrary sanitization of forms." Id.
The Union states that Proposal 3 is intended to address situations in
which it "has requested information through the Freedom of Information
(sic)," the Agency has insisted that the Union provide "identifiers,"
and the Union does not have any way of obtaining those "identifiers."
Id. The Union states that the proposal would require the Agency, when
"identifiers" are necessary, to provide the Union with "the way and
means to obtain them." Id.
As to Proposal 4, the Union contends that the cost of providing
information under "the Freedom of Information Act" is negotiable. Id.
The Union explains that, under Proposal 5, any data or information that
an employee could receive, but which the employee has not given to the
Union for reasons such as the employee being sick, unavailable, on
leave, or discharged, will be given to the Union by the Agency. Id.
The Union states that the proposals do not require the Agency to
violate "any Act or Law" and that they "do not address the exceptions,
as stated in the Act(.)" Id. at 3. The Union concludes that the
proposals "are a matter of working conditions in the areas of grievances
and/or arbitration(.)" Id.
B. Analysis and Conclusions
Based on the record in this case, we conclude that Proposals 1
through 5 are concerned with the manner in which the Agency will respond
to Union requests under the FOIA for information concerning conditions
of employment of unit employees. In particular, the Union consistently
relates the effect of the proposals to the FOIA. Moreover, the Agency
states in its declaration of nonnegotiability that the proposals concern
the availability of information to the Union under the FOIA and not
under section 7114 of the Statute. The Union does not dispute the
Agency's interpretation of the proposals. Because that interpretation
is consistent with both the wording and the Union's explanation of the
proposals, we will adopt that interpretation for the purposes of this
decision.
1. Proposal 1
The objective of the FOIA is full disclosure of information in
records maintained by an agency unless that information is exempted from
disclosure. See Department of the Air Force v. Rose, 425 U.S. 352,
360-61 (1976) (Rose). The FOIA authorizes agencies to refuse to
disclose certain information described in the exemptions, but it does
not prohibit the disclosure of that information. Thus, under the FOIA,
there are two broad classes of information: (1) that which must be
disclosed; and (2) that which may be disclosed or may be withheld from
disclosure. Exemption (b)(6) of the FOIA provides that information
contained in personnel files (as well as medical and other similar
files) may be withheld if disclosure of the information would constitute
a "clearly unwarranted invasion of personal privacy." 5 U.S. C. Section
552(b)(6). See, for example, Merit Systems Protection Board
Professional Association and Merit Systems Protection Board, Washington,
D.C., 30 FLRA 852, 856-58 (1988).
The Privacy Act, on the other hand, generally prohibits the
disclosure of personal information about Federal employees without their
consent. 5 U.S.C. Section 552a(b). Section (b)(2) of the Privacy Act
provides, however, that the prohibition against disclosure is not
applicable if disclosure of the information would be required under the
FOIA. 5 U.S.C. Section 552a(b)(2).
Thus, if information is of the type that could be exempted from
disclosure by FOIA Exemption (b)(6), that information would not be
required to be disclosed under the FOIA, and, therefore, section (b)(2)
of the Privacy Act would not apply. Accordingly, that information would
be subject to the general Privacy Act prohibition of the disclosure of
personal information about Federal employees without their consent. 5
U.S.C. Section 552a(b).
Proposal 1 would require the Agency to furnish information to the
Union under the FOIA to the extent that providing the information is not
prohibited by law. The proposal also states, however, that the Union
retains its right as the exclusive representative to obtain relevant
data/information notwithstanding the existence of the Privacy Act.
Inasmuch as the FOIA does not prohibit the disclosure of information,
the effect of the first and second sentences of the proposal, read
together, would be to require the Agency to release information to the
Union under the FOIA that would otherwise be precluded from release by
the Privacy Act. For example, the proposal would require the release of
information for which disclosure was barred by the Privacy Act because,
under the FOIA, that disclosure would result in a clearly unwarranted
invasion of personal privacy.
In our view, the plain wording of the proposal -- "not withstanding
(sic) the existence of the Privacy Act" -- is inconsistent with the
Union's statement that the proposal would not require the Agency "to
abdicate any legal responsibility." Because the proposal would require
the Agency to provide the Union with information that may not be
released under the Privacy Act without an employee's consent, we find
that the proposal is inconsistent with law and nonnegotiable under
section 7117(a)(1) of the Statute. See National Federation of Federal
Employees, Local 1745 and Veterans Administration, 13 FLRA 543, 547-48
(1983) (Veterans Administration), affirmed as to other matters sub nom.
NFFE, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987).
2. Proposal 2
Proposal 2 provides, as relevant here, that information which could
have "possible adverse or harmful effects on an employee" will be
provided to the Union in a "sanitized" form. In other words, when the
release of the information would have a "possible adverse or harmful"
effect on an employee, the Agency would be required to sanitize the
information before it is released to the Union. The proposal does not
distinguish among the types of information pertaining to employees that
may be included among the systems of records subject to the FOIA that
are maintained by Government agencies. Consequently, we interpret the
proposal as encompassing the "sanitization" of all of the types of
information that may be contained in such systems of records, including
information pertaining to employees -- "personal" information -- that is
also subject to the Privacy Act.
The FOIA provides that agencies may, where a portion of the
information requested is exempt from disclosure and "reasonably
segregable," release the nonexempt information and refuse to disclose
the portion of the information that is exempt. 5 U.S.C. Section 552(
b). See Rose, 425 U.S. at 373-76. In particular, an agency can refuse
to release a "reasonably segregable" portion of requested information
that would constitute a "clearly unwarranted invasion of personal
privacy" within the meaning of Exemption 6, while releasing the
remainder of the information sought. See, for example, Carter v.
United States Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987),
Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.
C. Cir. 1984). Proposal 2 concerns the "sanitization" of information
requested by the Union and we interpret the proposal as concerning the
Agency's decision, under 5 U.S.C. Section 552(b), to segregate and
refuse to disclose any portion of that information that would be exempt,
for example, under Exemption 6.
The negotiability of Proposal 2 depends upon the interpretation of
the scope of the requirement that the Agency "sanitize" requested
information. The Union does not explain what it intends by the use of
the phrase "possible adverse or harmful effects" as the criterion
governing the "sanitization" of requested information. Consequently, we
are unable to determine whether that phrase is intended to merely
restate the "clearly unwarranted invasion of personal privacy" standard
of Exemption 6 of the FOIA. Because we are unable to determine the
scope of the proposal's "sanitization" requirement, we are unable to
determine the negotiability of the proposal.
To the extent that the standard in the proposal would require the
Agency to release information which it would be authorized to withhold
under the FOIA and which, in turn, would be prohibited from disclosure
under the Privacy Act, the proposal is inconsistent with law. However,
to the extent that the "possible adverse and harmful effects" standard
in the proposal would require the Agency to release only the information
that it would be required to release under the FOIA, the proposal merely
means that the Union is proposing to receive only the information that
it would be entitled to receive under law. Under that interpretation,
the proposal would be consistent with law.
Because we are unable to determine the meaning of the "possible
adverse or harmful effects" standard of the first sentence of Proposal
2, we find that the record is insufficient for us to make a
negotiability determination. Consequently, we will dismiss the petition
for review as to Proposal 2.
3. Proposal 3
The Privacy Act applies to the disclosure of "any record which is
contained in a system of records . . . ." 5 U.S.C. Section 552a(b).
"Record" is defined as "any item, collection, or grouping of information
about an individual that is maintained by an agency . . . ." and
"system of records" is defined as "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(.)" (Emphasis
supplied.) 5 U.S.C. Section 552(a)(5). See U.S. Department of Defense,
Maxwell Air Force Base, Maxwell Air Force Base, Georgia and American
Federation of Government Employees, Local 997, 36 FLRA 110, 111 (1990).
Within the meaning of the Privacy Act, therefore, an "identifier" is
a term, number, or symbol that can be used to retrieve information
concerning a person from an agency's system of records. As noted above,
agencies are precluded by the Privacy Act from releasing any record
contained in a system of records to any person, or another agency,
without a written request by, or the written consent of, the person to
whom the record pertains unless, as relevant here, disclosure would be
required under the FOIA.
Proposal 3 requires the Agency to provide the Union with any
"identifiers" that are necessary to retrieve requested information. We
note in this connection that "identifiers" are not required for requests
for information under the FOIA. The only requirement under the FOIA is
that the request "reasonably describe" the record being sought. See,
for example, Marks v. United States, 578 F.2d 261 (9th Cir. 1978). As
noted above, the term "identifiers" has a clear meaning under the
Privacy Act. The Union, however, does not define the term
"identifiers." The Agency interprets the term "identifiers" as
encompassing personal information such as employee Social Security
numbers and home addresses, however, and the Union does not dispute that
interpretation. Consequently, we interpret the proposal as requiring
the disclosure under the FOIA of information in employee personnel files
that would identify the particular employee who is the subject of the
information disclosed, for example, employee Social Security numbers.
Disclosure of employee Social Security numbers may constitute a
"clearly unwarranted invasion of privacy" within the meaning of
Exemption (b)(6) of the FOIA. See International Brotherhood of
Electrical Workers Local Union No. 5 v. United States Department of
Housing and Urban Development, 852 F.2d 87, 89 (3d Cir. 1988) ("(W)e
must conclude that the release of the Social Security numbers would
constitute a clearly unwarranted invasion of privacy and is therefore
barred by Exemption 6."). See also Swisher v. Department of the Air
Force, 495 F. Supp. 337 (W.D. Mo. 1980), affirmed, 660 F.2d 369 (8th
Cir. 1981).
The proposal requires the Agency to disclose any and all
"identifiers." In our view, the term "identifiers" in the proosal
encompasses Social Security numbers. Therefore, insofar as the proposal
requires the Agency to disclose Social Security numbers, the proposal is
inconsistent with law. The fact that the term "identifiers" might
include some information the disclosure of which would be consistent
with law does not make the proposal negotiable. The broad wording of the
proposal exceeds the scope of what is diclosable under law. As the
court stated in Overseas Education Association, Inc. v. FLRA, 827 F.2d
814 (D.C. Cir. 1987):
If a proposal is facially overbroad in that it includes, along
with matters that are negotiable, matters that the Employer cannot
lawfully agree to, then the Employer has no obligation to
negotiate over it. The fact that the scope of the proposal could
be narrowed in the bargaining process is immaterial. The Union
should have attempted to bring the proposal within the duty to
bargain by narrowing its breadth prior to the bargaining process.
Id. at 818. Because Proposal 3 constitutes a "blanket" requirement for
the disclosure of personal identifiers such as employee Social Security
numbers, we find that the proposal would require the release of that
information without regard to whether release would constitute a
"clearly unwarranted invasion of privacy" within the meaning of
Exemption (b)(6).
Consequently, because Proposal 3 would require the release of
"personal identifiers" within the meaning of the Privacy Act, we find
that the proposal would require the disclosure of "personal" information
that is exempt from disclosure under the FOIA and, thus, is barred by
the Privacy Act. See Proposal 2 above. We conclude, therefore, that
Proposal 3 is inconsistent with the Privacy Act and nonnegotiable under
section 7117(a)(1) of the Statute. See Department of Defense, Office of
Dependents Schools and Overseas Education Association, 28 FLRA 871,
881-83 (1987) (interest arbitration award imposing a provision requiring
the release of "personaly or name-identified performance ratings" held
to be deficient because award constituted "blanket" disclosure
requirement that made no allowance for instances where disclosure would
be contrary to the Privacy Act).
4. Proposal 4
Proposal 4 requires the Agency to waive any fees under the FOIA that
would be necessary to cover the costs of providing requested
information. See 5 C.F.R. Section 297.206.
An agency's policy regarding fees for FOIA requests is not a matter
pertaining to the conditions of employment of unit employees within the
meaning of section 7103(a)(14) of the Statute. See United States Forces
Korea, Eighth United States Army and National Federation of Federal
Employees, Local 1363, 15 FLRA 373, 374 (1984) (Eighth United States
Army). Specifically, an agency's "policy regarding fees for FOIA
requests did not become a condition of employment simply because the
(union), having itself elected to seek information under the FOIA and
consequently been treated as part of the general public, also happens to
have been the exclusive representative for a unit of the (agency's)
employees." Id. at 374. In this respect, therefore, the Union herein
stands in no different relationship to the Agency under the FOIA than
any other member of the public requesting information under that
statute. Consequently, consistent with Eighth United States Army,
because Proposal 4 constitutes a waiver of fees on the part of the
Agency for the costs of information provided to the Union under the
FOIA, we conclude that the proposal does not concern conditions of
employment of unit employees and is nonnegotiable.
5. Proposal 5
Proposal 5 provides that the Agency is not relieved of its obligation
to provide information to the Union simply because the Union could also
obtain that information from employees. The Union explains the proposal
as requiring the Agency to give the Union information that the employee
could receive but has not given the Union because the employee is sick,
on leave, or otherwise unavailable. The Agency interprets the proposal
as requiring it to provide information to the Union regardless of
whether other means are available to the Union to obtain that
information.
As worded, the proposal would require the Agency to provide to the
Union information regardless of whether that information might also be
available to the Union from the employee who is the subject of the
information. In other words, consistent with the Agency's
interpretation, which is not disputed by the Union, the proposal would
simply preclude the Agency from asserting an "alternative means" defense
to a FOIA request. Interpreting Proposal 5 in this manner, we find that
the proposal is negotiable.
Nothing in the language of section 7114(b) of the Statute or its
legislative history indicates that Congress intended a union's right to
information under that provision to be dependent on whether the
information is reasonably available from an alternative source. U.S.
Department of the Navy, Puget Sound Naval Shipyard, Bremerton,
Washington, 38 FLRA 3, 7 (1990). See also U.S. Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 519
(1990) (Portsmouth Naval Shipyard); Farmers Home Administration Finance
Office, St. Louis, Missouri, 23 FLRA 788, 796-97 (1986). In any event,
as noted above, this case does not involve questions relating to
information requests under section 7114(b)(4) of the Statute.
Moreover, the Authority has rejected the claim that information must
be provided a union under the "routine use" exception to the Privacy
Act, 5 U.S.C. Section 552a(b)(3), only where adequate means of
communication are unavailable. See Portsmouth Naval Shipyard, 37 FLRA
at 537-41. Consequently, the Authority has declined to follow the
court's opinion in Financial Management Service, relied on by the
Agency. Finally, the Agency has provided no other basis for concluding
that the absence of "alternative means" of obtaining information is a
condition precedent to the release of information under the FOIA or the
Privacy Act and we are not aware of any other support for that
conclusion.
Accordingly, we conclude that by requiring the Agency to provide the
Union with information that the Union might otherwise obtain from an
employee, Proposal 5 is consistent with law and negotiable under section
7117(a)(1) of the Statute.
III. Proposals 6-8
Proposal 6
Employees who carry out policies will have immunity from personal
liability law suits.
Proposal 7
Employees acting within their discretion and within their line of
duty are immune from suits, alleging violations of constitutional
rights, if they are in the day-to-day operation, not in the planning or
policy considerations.
Proposal 8
Immunity applies to Federal and State levels.
A. Positions of the Parties
1. Agency
The Agency contends that the subject matter of the proposals, namely,
employee immunity from any personal liability lawsuit, is covered by the
Federal Tort Claims Act (FTCA), 28 U.S.C. Section 2671 et seq.
The Agency claims that Proposals 6 through 8 do not "relate to, or
stem from, the actual employer/employee relationship." Agency's
Statement at 4. Rather, the Agency argues, the proposals "relate to
actions taken by those outside the relationship in response to the
actions effected by the members of the bargaining unit in the
furtherance of their work." Id. The Agency concludes that because "the
proposals have no direct effect upon the working conditions of the
members of the bargaining unit, they do not constitute conditions of
employment within the meaning of the Statute(.)" Id.
The Agency also contends that "(e)ven if the proposals did not
concern a topic which is totally controlled by (s)tatute, and did
therefore concern a condition of employment within the meaning of the
Statute, their scope exceeds the discretion of the (A)gency, and moves
them outside the bargaining obligation." Id. The Agency argues that the
proposals "far exceed the authority of the (A)gency" because the
"(A)gency is totally without any authority to either request or
recommend that any local, state or judicial body to replace (sic) the
name of a private defendant in any proceeding with that of an agency of
the Federal Government." Id.
2. Union
The Union states that Proposal 6 would apply only "when the employee
is required to carry out the (Agency's) policy in the performance of
his/her dut(ies)." Union's Petition at 3. The Union contends that the
proposal concerns the conditions of employment of bargaining unit
employees because it concerns the Agency's direction of those employees
in the implementation of policies where the employees have not been
involved in "the policy making process." Id.
As to Proposal 7, the Union states that "(n)o employee on his/her own
can violate anyone's constitutional rights, but can be directed to do
so" by the Agency and that "if the employee does not follow the
(Agency's) policy, disciplinary action can be taken against him/her."
Id. According to the Union, Proposal 7 provides that when employees
carry out an Agency policy and lawsuits "arise from the policy," the
lawsuits should be brought against the Agency. Id.
The Union explains Proposal 8 as providing that the Agency "can ask
the court to relieve the employee of all responsiblity, and the (Agency)
will assume all liability for the suit, if the employee was acting
within the (Agency's) policy." Id.
The Union concludes that "(w)hen an employee must carry out the
(Agency's) policy, and this policy violates someone's rights, the
employee should not be held responsible for anyone's rights being
violated by the (Agency's) policy." Id.
B. Analysis and Conclusions
Proposals 6 and 8 establish the conditions under which unit employees
will be immune from lawsuits for actions taken in the course of their
employment and the scope of that immunity. We find that these proposals
concern matters that are excluded from the definition of conditions of
employment under section 7103(a)(14)(C) of the Statute because they are
specifically provided for by Federal statute, namely, the FTCA.
Proposal 7 provides employees with immunity, under certain conditions,
from suits alleging violations of an individual's constitutional rights.
We find that Proposal 7 is inconsistent with law and therefore
nonnegotiable under section 7117(a)(1) of the Statute.
In response to the Supreme Court's decision in Westfall v. Erwin, 484
U.S. 292 (1988), Congress enacted the Federal Employees Liability Reform
and Tort Compensation Act of 1988, Pub. L. 100-694, 102 Stat. 4563,
which amended section 2679 of the FTCA. Prior to Westfall, the general
rule was that Federal employees were immune from personal liability in
state common law tort actions for harm that resulted from activities
within the scope of their employment. See H.R. Rep. No. 700, 100th
Cong., 2d Sess. 2 (1988), reprinted in 1988 U.S. Code Cong. & Admin.
News 5945, 5946. The legal basis for the immunity was the general
doctrine of sovereign immunity. Id. (citing Barr v. Mateo, 360 U.S. 564
(1959)). In Westfall, the Supreme Court required, as a condition
precedent to personal immunity for Federal employees, not only that
employees must be acting within the scope of their employment, but also
that they must have exercised governmental discretion in so acting. 484
U.S. at 300.
The 1988 amendments to the FTCA established "standards to govern the
immunity of Federal employees who have allegedly committed state common
law torts." See H.R. Rep. No. 700, 100th Cong., 2d Sess. 2, 4 (1988),
reprinted in 1988 U.S. Code Cong. & Admin. News 5945, 5947. The effect
of the amendments was "to return Federal employees to the status they
held before the Westfall decision. That is, Federal employees will be
immune from personal liability for actions taken in the course and scope
of their employment." Id. at 4, 1988 U.S. Code Cong. & Admin. News at
5947.
Under the 1988 amendments, the sole remedy for state common law torts
which occur as a result of the actions of a Federal employee acting
within the scope of his or her employment is a suit against the United
States, not the employee. As amended, section 2679(b)(1) of the FTCA
states:
(b)(1) The remedy against the United States provided by sections
1346(b) and 2672 of this title for injury or loss of property, or
personal injury or death arising or resulting from the negligent
or wrongful act or omission of any employee of the Goverment while
acting within the scope of his office or employment is exclusive
of any other civil action or proceeding for money damages by
reason of the same subject matter against the employee whose act
or omission gave rise to the claim against the estate of such
employee. Any other civil action or proceeding for money damages
arising out of or relating to the same subject matter against the
employee or the employee's estate is precluded without regard to
when the act or omission occurred.
By providing that the exclusive remedy for injuries arising from an
employee's alleged negligence or wrongful act or omission is a suit
against the United States, Congress has effectively provided employees
with immunity, in every jurisdiction, from personal lawsuits based on
alleged common law torts.
Proposal 6 prescribes the conditions under which bargaining unit
employees would be immune from suit for acts performed at the direction
of the Agency. Proposal 8 requires that unit employees be immune from
suit at both the state and Federal levels. Section 2679 of the FTCA
specifically provides the conditions governing personal liability for
Federal employees with respect to state common law torts. Proposals 6
and 8 attempt to cover the same matters. Because Proposals 6 and 8
establish the conditions under which bargaining unit employees will be
immune from suit for actions in the course of their employment, and the
scope of that immunity, they pertain to matters that are specifically
provided for by section 2679 of title 28 of the United States Code and
are thus excluded from the definition of conditions of employment under
section 7103(a)(14)(C) of the Statute. Accordingly, we find that the
proposals are nonnegotiable.
As to lawsuits alleging constitutional torts, the Supreme Court, in
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.
S. 388 (1971) (Bivens), held that Federal employees could be liable for
money damages for any injuries that result from the violation by those
employees of an individual's constitutional rights. Bivens at 397.
The 1988 amendments to the FTCA codified the distinction that the
Federal courts had drawn between common law torts arising from
negligence and "constitutional" torts. H.R. Rep. No. 700, 100th Cong.,
2d Sess. 6 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 5945,
5949-50 (citing Bivens). As amended, section 2679(b)(2) states:
(2) Paragraph (1) does not extend or apply to a civil action
against an employee of the Government --
(A) which is brought for a violation of the Constitution of the
United States, or
(B) which is brought for a violation of a statute of the United
States under which such action against an individual is otherwise
authorized.
Our analysis of the 1988 amendments to the FTCA, and the House Report
accompanying those amendments, leads us to conclude that Congress has
not extended to Federal employees immunity from suit for alleged
constitutional torts. In the 1988 amendments to the FTCA, Congress
clearly waived sovereign immunity as to common law torts, so that suits
alleging such torts may be lodged against the Government in lieu of
suits against Federal employees. Congress declined, however, to waiver
sovereign immunity as to the constitutional torts of employees and thus
provided that relief for such torts must be obtained from the employees
themselves. Under the FTCA, that is, Federal employees are liable, as
established in Bivens, for money damages for any injury that results
from a violation by those employees of an individual's constitutional
rights. Proposal 7 would grant immunity to unit employees from suits
alleging violations of constitutional rights. Because Proposal 7 would
afford Federal employees immunity as to matters for which, under Federal
law, they are liable, we find that Proposal 7 is inconsistent with law
and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.
IV. Order
The petition for review as to Proposals 1, 2, 3, 4, 6, 7, and 8 is
dismissed. The Agency shall upon request, or as otherwise agreed to by
the parties, bargain on Proposal 5. /*/
FOOTNOTES
(*) In finding Proposal 5 to be negotiable, we make no judgment as to
its merits.
39 FLRA 1060
39 FLRA NO. 91
Dept. of the Navy, Marine Corps Logistics Base, Albany, Georgia and
AFGE, Case No. 4-CA-70665 (Decided March 12, 1991)
STATUTE
7116(a)(1) and (5)
SUBJECT MATTER INDEX ENTRIES
UNFAIR LABOR PRACTICE
DETAILING EMPLOYEES WITHOUT NOTICE TO THE UNION AND PROVIDING AN
OPPORTUNITY TO BARGAIN
IMPLEMENTATION AND APPROPRIATE ARRANGEMENTS
MORE THAN DE MINIMIS
WAIVER
COVERED BY AGREEMENT
BARGAINING HISTORY
DIGEST NOTES
The complaint alleged violation of 7116(a)(1) and (5) by the
detailing of certain unit employees without notifying the Union and
giving it an opportunity to bargain concerning the implementation of the
details and appropriate arrangements for adversely affected employees.
In agreement with the Judge, the Authority found that the Respondent
violated the Statute as alleged because the details involved a change in
conditions of employment that was more than de minimis, and the Union
did not waive its rights to notice and to bargain on the impact and
implementation of the change. The Authority described the duty to
bargain unless the matter is covered by the Master Labor Agreement or
the Union otherwise waived its right to bargain in the future and
concluded that the matter at issue is not covered by the Agreement. In
this regard, the Authority noted that the agreement on a few items
arguably concerning impact and implementation of details is not
sufficient to establish an intent to forego bargaining on other impact
and implementation matters.
The Authority further concluded that the Agreement does not contain
an express waiver of the Union's right to bargain and there is no waiver
by past practice or bargaining history.
Case No. 4-CA-70665
DEPARTMENT OF THE NAVY MARINE CORPS LOGISTICS BASE ALBANY, GEORGIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(Charging Party)
DECISION AND ORDER
March 12, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge. The
Respondent filed exceptions to the Judge's decision, and the General
Counsel filed an opposition to the exceptions. The Respondent also
filed a motion to disregard a portion of the General Counsel's brief and
two motions for leave to supplement its brief. The General Counsel
filed oppositions to the motions to supplement the brief. /1/
The complaint alleged that the Respondent violated section 7116(a)(
1) and (5) of the Federal Service Labor-Management Relations Statute
(the Statute) by detailing certain bargaining unit employees without
notifying the Union and giving it an opportunity to bargain concerning
the implementation of the details and appropriate arrangements for
adversely affected employees.
The Judge found that the Respondent violated the Statute as alleged
because the details involved a change in conditions of employment of
unit employees that was more than de minimis, and the Union did not
waive its rights to notice and to bargain on the impact and
implementation of the change. The Judge's recommended remedy included a
return to the status quo ante.
Pursuant to section 2423.29 of our 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 and conclusions, and his
recommended order, as modified. /2/
II. Background
The Charging Party, American Federation of Government Employees
(AFGE), represents certain employees of the Respondent, Marine Corps
Logistics Base, Albany, Georgia, as part of a consolidated unit. AFGE
Local 2317 (Local 2317) is the administrative subdivision of AFGE for
purposes of representing these employees.
As more fully detailed by the Judge, a Master Labor Agreement (MLA)
between AFGE and the Respondent provides for notice to the appropriate
local union of changes in policy at the activity level. Various
sections of the MLA pertain to details and temporary promotions and the
establishment of standards for employees on extended temporary
assignments. The MLA also contains a grievance procedure. ALJ Decision
at 3-4.
The facts that led to the unfair labor practice complaint are not in
dispute. A management official met with a Local 2317 steward and told
him of plans to detail four bargaining unit employees to positions
involving different duties for a period of 120 days. On the same
afternoon, the official met with the four employees, told them of the
details and instructed them to begin the new duties immediately.
Management did not notify the president of Local 2317, who was the
appropriate union official to be notified of such changes. The steward
had no time to relay the information because the details began
immediately after his meeting.
As a result of the details, other unit employees began doing some of
the work of the detailed employees, in addition to performing their
regular duties. The effect on the detailed employees themselves is set
out by the Judge at pages 4-6 of his decision. In summary, "their work
was less desirable after the details, it involved less skill and
technical ability, and it could have adversely affected promotion
potential." ALJ Decision at 7.
III. Administrative Law Judge's Decision
The Judge concluded that the details of the four employees
constituted a change in conditions of employment, which obligated the
Respondent to bargain about impact and implementation unless the impact
of the change was de minimis or the Union waived its rights to bargain
over the matter. He concluded that the change was not de minimis, and
that the Union did not waive its rights either by acquiescing in prior
details about which it did not have knowledge or by agreeing to certain
provisions of the MLA.
The Judge examined the provisions of the MLA dealing with details,
and concluded that the Union did not clearly and unmistakably waive its
right to bargain about the impact and implementation of the details at
issue in this case. Specifically, he reviewed Article 16 of the
contract, set out on pp. 3-4 of his decision, which concerns details and
temporary promotions, and by his description:
deals with some of the procedures to be followed and some general
impact arrangements. But Article 16 did not on its face even
attempt to deal with the impact and implementation of specific
individual details nor did it attempt to deal with the local
considerations, which it recognized in Article 4. Rather, it is
clear Article 16 was an attempt to settle the general national
considerations concerning details and temporary promotions, (and)
it does not constitute a waiver of AFGE's right to bargain about
the impact and implementation of individual details on the local
level involving local considerations. Article 16 did not
constitute a waiver of the union's right to bargain concerning all
aspects of impact and implementation of details.
ALJ Decision at 8.
Regarding the remedy, the Judge said, "there being no showing that a
status quo ante remedy would be unduly disruptive, I conclude such a
remedy is appropriate." ALJ Decision at 9.
IV. Positions of the Parties
The Respondent argues that its duty to bargain over the impact and
implementation of the details was satisfied when it negotiated the MLA
containing provisions dealing with that subject. As a result, it argues
that although the provisions "do not exhaust the universe of (impact and
implementation) matters," Respondent's brief at 11 n.6, the fact that
AFGE had an opportunity to bargain over the subject and exercised that
opportunity is sufficient to privilege the Respondent's actions in
detailing the employees in conformity with the requirements of the MLA.
Id. at 11.
Underlying this theory, the Respondent invokes the contract doctrine
of "accord and satisfaction," arguing that the contract provisions
pertaining to covered matters represent concessions given by management
in exchange for corresponding benefits. It further argues that to
impose a duty to negotiate when management acts within the parameters of
the agreement would deprive it of the benefits for which it contracted
and would transform the agreement into a unilateral contract. Id. at 8
n.3.
In the alternative, the Respondent argues that, assuming arguendo the
MLA did not cover the impact and implementation of details, AFGE waived
its rights regarding this matter because the Preamble to the MLA states
in part that it "constitute(s) a total agreement" between the parties
and that it "prescribes certain rights and obligations of employees, the
council and the employer, and establishes procedures that meet the
special requirements and needs" of the United States Marine Corps.
These provisions of the Preamble, with portions of Article 5 and Article
40, /3/ are asserted to constitute an express waiver by AFGE of
bargaining rights regarding matters not covered by the MLA. Id. at
12-14.
The General Counsel argues that the Authority should adopt the
findings of the Judge that the MLA did not contain complete procedures
for impact and implementation arrangements, that there was no evidence
of acquiescence by AFGE after prior details, and that there was no
waiver by the Union of its right to engage in impact and implementation
bargaining over details.
V. Analysis and Conclusions
A. The Respondent Has a Duty to Bargain Unless the Matter Is Covered
by the MLA or the Union Otherwise Waived Its Right to Bargain in the
Future
The decision to detail employees is a management right within the
meaning of section 7106(a)(2) of the Statute. However, an agency has a
duty to bargain over the procedures that it will observe in exercising
its authority and appropriate arrangements for employees adversely
affected by the exercise of its authority ("impact and implementation")
under section 7106(b)(2) and (3) of the Statute, unless those matters
are covered by the parties' negotiated agreement or the union otherwise
has clearly and unmistakably waived its right to bargain about those
matters. U.S. Army Corps of Engineers, Kansas City District, Kansas
City, Missouri, 31 FLRA 1231 (1988) (Corps of Engineers, Kansas City
District).
The Authority will consider a negotiable matter to be covered by the
agreement, and therefore to be removed from the area of required
bargaining, if the particular subject matter of a union's bargaining
request is specifically addressed in the negotiated agreement. If the
particular subject matter is not specifically addressed, we will not
conclude that the subject is contained in the agreement. Corps of
Engineers, Kansas City District, 31 FLRA at 1235. In that situation, we
then look to see whether the union nevertheless otherwise waived its
right to engage in future bargaining about that subject.
A waiver can be established by express agreement or, when the plain
language of the contract is not a sufficient guide to the intention of
the parties, by reliance on bargaining history. Corps of Engineers,
Kansas City District, 31 FLRA at 1236. Although the mere failure to
request bargaining with regard to past management actions, without more,
does not extinguish the right to request bargaining when a further
management action occurs, Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Denver District, Denver, Colorado, 27 FLRA
664, 666 (1987), in certain circumstances a waiver also could be
established by past practice. However established, a waiver of a
union's statutory right must be clear and unmistakable. U.S. Department
of the Treasury, Customs Service, Washington, D.C. and Customs Service,
North East Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990).
A waiver by express agreement may be established by a "zipper
clause," comprehensively foregoing bargaining on all matters not
contained in the agreement, Internal Revenue Service, 29 FLRA 162, 166
(1987); Corps of Engineers, Kansas City District 31 FLRA at 1236, or by
specifying a particular subject matter that is precluded from further
bargaining during the term of the agreement. A waiver by bargaining
history may occur when matters that were discussed during negotiations
were not specifically covered in the resulting contract. See U.S.
Department of the Navy, United States Marine Corps (MPL), Washington,
D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632
(1990). Generally, the right to bargain over a subject matter during
the term of the contract will be considered waived if it was fully
discussed and explored at the bargaining table. Internal Revenue
Service, 29 FLRA at 167.
B. The Matter Is Not Covered by the Parties' Agreement
In Corps of Engineers, Kansas City District, 31 FLRA at 1235-36, we
stated that we will determine whether a matter is covered by a
collective bargaining agreement by using the standard set forth in
Internal Revenue Service, 29 FLRA at 167:
The particular words of proposals offered during contract and
mid-term negotiations need not be identical for a waiver to exist.
On the other hand, the fact that a mid-term proposal may relate
to a general subject area covered in a collective bargaining
agreement will not relieve an agency of its obligation to bargain.
Rather, the determinative factor is whether the particular
subject matter of the proposals offered during contract and
mid-term negotiations is the same.
See also, U.S. Department of Labor, Washington, D.C., 38 FLRA 1374, 1382
(1991) (U.S. Department of Labor).
Therefore, the proper approach in this case is to determine whether
the MLA specifically addresses the impact and implementation of employee
details, the particular subject matter of the Union's bargaining
request, to determine whether the matter as to which the Union sought to
bargain is contained in the parties' agreement. See U. S. Department
of Labor, 38 FLRA at 1383.
The Judge found that Article 16 of the MLA, /4/ concerning details,
did not on its face even attempt to deal with the impact and
implementation of specific individual details nor did it attempt
to deal with the local considerations, which it recognized in
Article 4. Rather, it is clear Article 16 was an attempt to
settle the general national considerations concerning details and
temporary promotions, (and) it does not constitute a waiver of
AFGE's right to bargain about the impact and implementation of
individual details on the local level involving local
considerations.
ALJ Decision at 8. Thus, although the Judge's discussion is couched in
terms of a traditional waiver analysis, it also clearly supports a
conclusion that the terms of the MLA do not specifically address the
particular subject matter of the Union's bargaining request and that,
therefore, the matter about which the Union sought to bargain is not
covered by the agreement. We agree with the Judge's conclusion and
note, in this regard, that the Respondent concedes that the MLA does not
cover the entire subject matter of impact and implementation bargaining
over details. Respondent's brief at 11 n.6.
The Respondent argues that it satisfied its obligation to bargain
over the matter when it negotiated certain provisions in the MLA that
apply to employee details. It asserts that so long as it complied with
these contractual requirements in implementing the details, it has not
committed an unfair labor practice. Indeed, it argues that had this
case arisen in the private sector regulated by the National Labor
Relations Board (NLRB), it would have had no obligation to bargain under
the "landmark decision" in NLRB v. Jacobs Manufacturing Co., 196 F.2d
680 (2d Cir. 1952).
We conclude that the parties' agreement on a few items arguably
concerning impact and implementation of details is not sufficient to
establish an intent to forgo bargaining on other impact and
implementation matters, and unless established by bargaining history, no
such finding can be made. Accordingly, we do not find that the issues
over which the Union requested bargaining were covered by the agreement.
We disagree with the Respondent that the application of private
sector case law would require the dismissal of this dispute as involving
nothing more than a dispute over the interpretation and/or application
of the labor agreement. Respondent's Brief at 4. In NL Industries v.
NLRB, 536 F.2d 786, 790 (8th Cir. 1976), the court relied on NLRB v.
Jacobs Manufacturing Co. to hold that bargaining over mandatory subjects
during the term of a contract is required "unless the contract expressly
dealt with the subject matter" (emphasis supplied). Applying the same
view of the requirements of NLRB v. Jacobs Manufacturing Co., the NLRB,
in Armour & Co., 280 NLRB 824, 827 (1986), rejected the employer's
argument that the bargaining agreement was sufficiently comprehensive
with respect to the general subject of severance allowances so as to
relieve it of an obligation to bargain about the allocation of severance
and vacation pay when it terminated operations. Rather, it adopted the
conclusion of the administrative law judge that "the severance and other
plant closure provisions of the agreement do not 'clearly and
unmistakably' prohibit the Union's request for bargaining about the
evidently virgin subject of allocation." Id. at 828.
In this case, the negotiated provisions in Article 16 concerning
details deal with such procedural matters as: when employees may be
detailed; how details shall be documented; when details shall result
in temporary promotions; when competitive procedures must be used to
fill higher-graded positions; and the status of dues deduction for
detailed employees. We agree with the Judge that those provisions have
no bearing on such issues as the effects of the details on an employee
who was required to do dirtier or more physically demanding work, the
effect of a change in supervision on a detailed employee, or the
problems of employees who were competitively disadvantaged by the change
of duties on detail. See ALJ Decision at 5-6.
We also find, in agreement with the Judge, that this case is unlike
Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774
(1982) (Naval Amphibious Base), relied on by the Respondent to support
its argument that its entire bargaining obligation regarding impact and
implementation of details was met when it negotiated the agreement
containing references to impact and implementation bargaining over
details. As the Judge here noted, the Authority found in Naval
Amphibious Base that the collective bargaining agreement had established
"substantially all the procedures and arrangements in non-disciplinary
adverse action." ALJ Decision at 8-9. In addition, the record in that
case did not establish that management, in implementing nondisciplinary
adverse actions, had established new, or changed existing, personnel
policies, practices or matters affecting working conditions. 9 FLRA at
777. Here, in contrast, the MLA admittedly did not contain the whole
"universe" of possible conditions that might pertain to the impact and
implementation of employee details, Respondent's brief at 11 n.6, and,
as found by the Judge in another context, did not "even attempt to deal
with the impact and implementation of specific individual details nor
did it attempt to deal with the local considerations(.)" ALJ Decision at
8.
United Mine Workers of America, District 31 v. NLRB, 879 F.2d 939
(D.C. Cir. 1989) (see note 1, above), is similarly distinguishable.
There, the collective bargaining agreement fully defined the matter
sought to be negotiated.
C. The Agreement Does Not Contain an Express Waiver of the Union's
Right To Bargain
On consideration of the agreement we conclude that it contains no
express waiver of the Union's right to bargain over this matter in the
future. Clearly, the MLA does not contain a zipper clause, /5/ and,
based on our agreement with the Judge's analysis of Article 16 above,
the MLA contains no clear and unmistakable intent to waive the right to
negotiate over issues involving the impact and implementation of details
that are not contained in that agreement. We reiterate that we will not
infer from the inclusion in an agreement of certain specific items
related to the impact and implementation of an agency's decisions
regarding a condition of employment that the statutory right to bargain
has been waived as to all future impact and implementation matters
involving that subject.
D. There Is No Waiver by Past Practice or Bargaining History
In this case, the Judge has determined that the record fails to
establish knowledge by AFGE of previous management decisions to detail
employees. Therefore, the fact that AFGE did not in the past seek
bargaining over impact and implementation does not operate to waive that
right by past practice, or acquiescence.
Further, a waiver by bargaining history is not established. The
Respondent does not assert that all related matters were discussed and
not included, but merely that whatever provisions the MLA contains
regarding impact and implementation bargaining over details excuses its
obligation to bargain further over any related matters. Thus, the
record does not support a finding that the full range of issues
involving the impact and implementation of decisions about details was
fully discussed in negotiations over the MLA. /6/
VI. Conclusion
We conclude, in agreement with the Judge, that the Respondent
violated section 7116(a)(1) and (5) of the Statute by failing and
refusing to notify AFGE or bargain with it concerning the impact and
implementation of its decision to detail employees. Accordingly, we
will order the relief recommended by the Judge. /7/
VII. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, Department of the Navy, Marine Corps Logistics Base, Albany,
Georgia, shall:
1. Cease and Desist from:
(a) Failing and refusing to meet and negotiate with American
Federation of Government Employees, Local 2317, the agent of the
exclusive representative of their employees, American Federation
of Government Employees, over the procedures that it will observe
in exercising its authority with regard to the detail of
bargaining unit employees and concerning appropriate arrangements
for employees adversely affected by such changes.
(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 American Federation of Government Employees, Local
2317, the agent of the exclusive representative of their
employees, American Federation of Government Employees, of any
intention to detail employees an, upon request, negotiate with
such representative concerning the procedures to be observed in
implementing such detail and concerning appropriate arrangements
for employees adversely affected by such detail.
(b) Rescind details of employees made on May 18, 1987, with
respect to those employees still on such details.
(c) Post at its facilities in Albany, Georgia, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Commanding Officer, Marine Corps Logistics 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 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, Atlanta, Georgia
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.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to meet and negotiate with American
Federation of Government Employees, Local 2317, the agent of the
exclusive representative of our employees, American Federation of
Government Employees, over the procedures that it will observe in
exercising its authority with regard to the detail of bargaining unit
employees and concerning appropriate arrangements for employees
adversely affected by such changes.
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 American Federation of Government Employees, Local
2317, the agency of the exclusive bargaining representative of our
employees, of any intention to detail employees and, upon request,
negotiate with such representative concerning the procedures to be
observed in implementing such detail and concerning appropriate
arrangements for employees adversely affected by such detail.
WE WILL rescind details of employees made on May 18, 1987 with
respect to those employees still on such details.
(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, Atlanta, Georgia Regional Office, Federal Labor
Relations Authority, whose address is: 1371 Peachtree Street, N.E.,
Suite 122, Atlanta, GA 30367, and whose telephone number is: (404)
347-2324.
Case No. 4-CA-70665
DEPARTMENT OF THE NAVY MARINE CORPS LOGISTICS BASE ALBANY, GEORGIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Charging Party
William Petty For Respondent
Leonard Burnham For Charging Party
Linda J. Norwood, Esq. For General Counsel of FLRA
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
DECISION
Statement of the Case
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.
A charge against the Department of the Navy, Marine Corps Logistics
Base, Albany, Georgia, hereinafter called Respondent or Marine Corps
Logistics Base, was filed by American Federation of Government
Employees, herein called AFGE, on June 23, 1987. Based upon this
charge, the General Counsel of the FLRA, by the Regional Director of
Region IV, of the FLRA issued a Complaint and Notice of Hearing alleging
that Respondent violated sections 7116(a)(1), and (5) of the Statute by
detailing certain employees without notifying AFGE or giving it an
opportunity to bargain concerning the impact and implementation of the
details. Marine Corps Logistics Base filed an Answer denying it had
violated the Statute.
A hearing was conducted before the undersigned in Albany, Georgia.
AFGE, Marine Corps Logistics Base 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.
Post-hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and my evaluation of the evidence, I make
the following:
Findings of Fact
The Department of Defense is an agency within the meaning of the
Statute. Department of the Navy is a primary subdivision of the
Department of the Defense, within the meaning of the Rules and
Regulations of the FLRA. The United States Marine Corps, herein called
USMC, is a subdivision of the Department of the Navy. Marine Corps
Logistics Base is an activity of the Department of Defense within the
meaning of the Rules and Regulations of the FLRA.
At all times material AFGE has been the exclusive collective
bargaining representative for a nationwide unit of employees of the
USMC, including employees of the Marine Corps Logistics Base, and AFGE
and USMC have been parties to a collective bargaining agreement.
AFGE delegated to the Council of Marine Corps Locals (Council 240),
herein called the Council, the Authority to represent certain employees
in the collective bargaining unit, including employees of the Marine
Corps Logistics Base. AFGE Local 2317 is an administrative subdivision
of the Council and AFGE for the purposes of representing certain
employees in the collective bargaining unit, including employees of the
Marine Corps Logistics Base.
The collective bargaining agreement provides in Article 4, Section 1,
"Section 1 The employer will notify the council of policy changes
originating above the activity level that give rise to a bargaining
obligation under the statute. Where such changes originate at the
activity level, the activity will notify the appropriate local union."
Article 16 of the collective bargaining agreement deals with details
and temporary promotions. /8/ Article 31, Section 3a(6) provides that
employees on extended temporary assignments of over 120 days will have
elements and standards established for that assignment. Article 13 sets
forth the grievance procedure for disputes over interpretation of the
collective bargaining agreement.
On May 18, 1987, Master Sergeant R. L. Cook, the head of the Garrison
Mobile Equipment Station (GME) in the Facilities and Services Division,
held a meeting with the section steward, Ocie Ward. Cook informed Ward
that Cook planned on detailing four bargaining unit employees in the
section to positions involving different duties for a period of
one-hundred and twenty (120) days. Cook told Ward that Cook would
detail two Automotive Repair Inspectors (WG-11), Jesse Nelms and Dennis
Griffin; Nelms would be detailed to a GS-3 Utilization Clerk, and
Griffin would be detailed to a WG-10 Electromotive Equipment Mechanic
position. In addition, two WG-6 Mobile Equipment Servicers, /9/ David
Deal and an employee named Nixon, would be detailed; Deal would go into
a position called "unclassified duties," also at a WG-6 rating, and
would assist mechanics. Nixon would be detailed to tire repair duties.
/10/ As a result of detailing the Servicers the four or five mechanics
in the shop would begin doing the Servicers' duties, which included
lubricating and oil changes.
On that same afternoon, Master Sergeant Cook began meeting with the
employees to be detailed. He informed each one and instructed them to
begin the new duties immediately. No one in management gave any notice
of these details to AFGE Local 2317 President Leonard Burnham. /11/
Burnham was the appropriate person to be notified of changes and he had
not designated anyone else to accept such notice.
None of the detailed employees suffered reduction in base pay as a
result of the detail. Griffin in his job as inspector did not perform
repair or maintenance work on vehicles, rather he examined vehicles and
determined the needed work and drafted the work orders. He did this
with respect to the "green fleet." Nelms in his job as inspector
performed the same duties for the "yellow fleet." Both Griffin and Nelms
had desks in the shop where they completed their paper work.
After his detail to Mechanic position, WG-10 Griffin performed
mechanic's duties repairing vehicles and doing maintenance. The work
was dirtier and required more physical exertion than did Griffin's job
as inspector. Griffin no longer worked at a desk and, several weeks
after the detail, he developed a skin rash and returned to his inspector
duties.
Since his detail to Utilization Clerk, Nelms has a desk in the shop
office where he performs clerical duties, including keeping records of
vehicles and repairs and maintenance and he writes orders for mechanics.
Nelms also checks the computer to see if maintenance is due on
vehicles. Nelms also had a different supervisor than he did when he
performed his inspector duties.
When Griffin returned to his inspector duties, the actual inspector
duties had changed. Nelms was no longer doing inspector work and the
number of vehicles to be inspected increased. The inspector was no
longer required to do in-progress inspections or complete work orders.
Deal, in his Servicer position, performed maintenance work, including
lubrication and oil changes, checking various coolant systems, checking
the lights and brakes and electrical systems and did tire repairs. As a
tire repairer, the position to which Deal was detailed, Deal did not
regularly work on mechanical equipment, as he did as a Servicer. He
lost experience on equipment and expected that he would be disadvantaged
in competing for jobs with mechanics. The tire repairer duties involved
more physical exertion and Deal injured his wrist performing these
duties. The Servicer position offered Deal greater opportunities for
promotion than the tire repairer position.
When the Servicers ceased doing the lubrication work and oil changes,
the four or five Automotive Mechanics, who worked in the Garrison Module
Equipment Shop, unit members, began doing these duties in addition to
their own regular duties.
After the details were effected and the employees had been working in
their new duties, sometime in June 1987, one of the employees, Dennis
Griffin, complained to Ward about his situation. Ward and Griffin
approached Cook with Griffin's problems. Cook stated that he could do
nothing about it. Ward reminded Cook that management should have
bargained with the Local Union President on the details. Cook replied
that he did not know anything about the Union "regulations." The
employees remained in their details; and the AFGE filed an unfair labor
charge. /12/
There had been 15 prior details without notice to AFGE Local 2317 and
the union did not request to bargain about these details. There is no
evidence to show AFGE Local 2317 knew about these details. There are
about 750 unit employees at the Marine Corps Logistics Base.
Discussion and Conclusions
The FLRA has held that an agency violates sections 7116 (a)(1) and
(5) of the Statute when it exercises a management right within the
meaning of section 7106(a)(2) of the Statute if it fails to negotiate
about the implementation of the change and appropriate arrangements for
employees adversely affected by the change. /13/ See, Internal Revenue
Service, Washington, D.C. and Internal Revenue Service, Denver District,
Denver, Colorado, 27 FLRA 664 (1987), hereinafter called IRS Denver).
In the subject, even though the detailed employees suffered no loss
of pay, it is clear, and I conclude, that the details of the four
employees constituted a change in conditions of employment which obliged
the agency to bargain about the impact and implementation of the change,
see section 7106(b)(2) and (3) of the Statute and IRS Denver, supra, and
Department of Health and Human Services, Family Support Administration,
30 FLRA No. 43 (1987), unless for some reason the union had given up its
rights to be notified and to bargain or because the impact of the change
was de minimis.
The record establishes that with respect to the subject details, the
impact on the detailed employees was not de minimis. The affect on the
detailed employees was substantial, their work was less desirable after
the details, it involved less skill and technical ability, and it could
have adversely affected promotion potential. It also meant other unit
employees had to perform more work to pick up the slack because of the
absence of the detailed employees. Accordingly, the impact of the
change was hardly de minimis. Cf. Department of Health and Human
Services, Social Security Administration, 24 FLRA 403 (1986) and see
also IRS Denver, supra.
Thus, absent some waiver, AFGE was entitled to adequate advance
notice of the details and an opportunity to bargain about their impact
and implementation.
AFGE Local 2317 President Burnham was the appropriate person to be
notified of the details and Marine Corps Logistics Base failed to notify
him. The fact that Marine Corps Logistics Base gave Shop Steward Ward
notification does not satisfy its obligation to notify the agent
identified by AFGE to receive such notification. See Headquarters, XVII
Airborne Corps, Fort Bragg, North Carolina, 15 FLRA 790 (1984).
Further, the notification to Ward, even if he had been the appropriate
person to notify, was not sufficient because it was given immediately
before the details went into effect. Notification of a change must be
sufficiently in advance of the event to permit the union and the
activity to meaningfully meet and confer, which necessarily involves
ample opportunity for the union to fully explore the matter. See Bureau
of Government Financial Operations Headquarters, 11 FLRA 334 (1983) and
March Air Force Base, California, 25 FLRA No. 20 (1987). In light of
the foregoing, therefore, I conclude that Marine Corps Logistics Base
did not give AFGE sufficient notice of the details.
Marine Corps Logistics Base contends that details are a common
employment feature at the Marine Corps Logistics Base and that therefore
it was not obligated to give notice and bargain about the impact and
implementation of the details. The record establishes fifteen other
details about which AFGE was not notified and which AFGE did not request
to bargain. However, there are about 750 employees of the Marine Corps
Logistics Base and there was no showing AFGE even learned or knew about
these fifteen details or the nature and extent of the details. The
record fails to establish AFGE acquiesced in this procedure. See
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland, 18 FLRA 743 (1985). The FLRA has held that the
mere failure to request impact and implementation bargaining on prior
details, standing alone, did not alter a union's statutory right to
request bargaining when another detail is announced. IRS Denver, supra
at 666.
Finally, I find that AFGE did not waive its statutory right to
notification and to bargain about the impact and implementation of the
details. Any such waiver of a statutory right has to be clear and
unmistakable. Cf. Department of Labor, Wage and Hour Division, 21 FLRA
484 (1986). Article 16 of the collective bargaining agreement deals
with Details and Temporary Promotions and deals with some of the
procedures to be followed and some general impact arrangements. But
Article 16 did not on its face even attempt to deal with the impact and
implementation of specific individual details nor did it attempt to deal
with the local considerations, which it recognized in Article 4.
Rather, it is clear Article 16 was an attempt to settle the general
national considerations concerning details and temporary promotions, it
does not constitute a waiver of AFGE's right to bargain about the impact
and implementation of individual details on the local level involving
local considerations. Article 16 did not constitute a waiver of the
union's right to bargain concerning all aspects of impact and
implementation of details. See Naval Amphibious Base, Little Creek,
Norfolk, Virginia, 9 FLRA 774 (1982) where the FLRA held that the
collective bargaining agreement did establish substantially all the
procedures and arrangements in non-disciplinary adverse action. /14/
Thus I conclude Marine Corps Logistics Base did violate section
7116(a)(1) and (5) of the Statute by failing and refusing to notify AFGE
or bargaining with it concerning the impact and implementation of the
details.
With respect to remedy, there being no showing that a status quo ante
remedy would be unduly disruptive, I conclude such a remedy is
appropriate.
Having concluded SSA violated section 7116(a)(1) and (5) of the
Statute, I recommend the Authority issue the following Order:
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, Marine Corps Logistics
Base, Albany, Georgia, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate with the
American Federation of Government Employees, Local 2317, the agent
of the exclusive bargaining representative of their employees,
American Federation of Government Employees, over the procedures
which it will observe in exercising its authority with regard to
the detail of bargaining unit employees and concerning appropriate
arrangements for employees adversely affected by such changes.
(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 American Federation of Government Employees,
Local 2317, the agent of the exclusive bargaining representative
of their employees, American Federation of Government Employees,
of any intention to detail employees and, upon request, negotiate
with such representative concerning the procedures to be observed
in implementing such detail and concerning appropriate
arrangements for employees adversely affected by such detail.
(b) Rescind details of employees made on May 18, 1987, with
respect to those employees still on such details.
(c) Post at its facilities in Albany, Georgia, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by 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 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 IV, Federal Labor
Relations Authority, 1371 Peachtree Street, N.E., Suite 736,
Atlanta, GA 30367, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 31, 1988
SAMUEL A. CHAITOVITZ
Administrative Law Judge
FOOTNOTES
(1) In its motions to supplement its brief, the Respondent seeks to
add a decision of the National Labor Relations Board that issued after
it filed its brief, Island Creek Coal Company, 289 NLRB No. 121, 129
LRRM 1244 (1988), and the decision of the Court of Appeals for the
District of Columbia Circuit enforcing that decision, United Mine
Workers of America, District 31 v. NLRB, 879 F.2d 939 (D.C. Cir. 1989).
It is the obligation of parties to inform the Authority of cases that
may be pertinent to a pending case. The Authority can then determine
their pertinence, and, if necessary, request supplemental statements
from the parties. In this case, the Authority takes notice of the
decisions cited by the Respondent but sees no need for further
supplemental statements from the parties with regard to those decisions.
Accordingly, the motions to supplement Respondent's brief are denied.
(2) In his recommended order, the Judge directed that notices posted
by the Respondent be signed by "a responsible official." The Authority
has held that notices shall be signed by an official designated by the
Authority rather than one determined by the Respondent. U.S. Department
of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990). The Judge's
recommended Order has been modified to substitute "base commander" for
"a responsible official."
(3) Article 5 provides, in pertinent part:
Past practices pertaining to personnel policies, practices, and
working conditions in operation on the effective date of this
agreement will continue if they comply with applicable law and
regulations and they have not been altered or addressed by this
MLA.
Joint Exh. 1.
Article 40 provides, in pertinent part:
Section 1 This agreement shall become effective 120 days
following the date on which it is approved by the Department of
the Navy and shall remain in effect for a period of three years.
Thereafter, this agreement shall remain in effect from
year-to-year unless either party shall notify the other in writing
no more than 120 days nor less than 45 days before the expiration
date of the agreement of its desire to terminate or renegotiate
this agreement.
Section 3 If portions of this agreement are found to be
unworkable, this agreement may be opened for modification provided
that any such request is submitted in writing, along with the new
language being proposed, and both the employer and the council
consent to opening the agreement for the purpose requested. A
written notice of desire to modify the agreement during the term
of the agreement will not have the effect of terminating or
modifying the agreement.
Id.
(4) Article 16 of the MLA is set out on pp. 3-4 at n.1 of the ALJ
Decision.
(5) Insofar as the Agency relies on language in the Preamble to the
MLA stating that the MLA "constitutes (together with any amendments that
the parties might later agree upon) the total agreement between the
(parties)," Respondent's brief at 13, we agree with the NLRB that
"(s)uch a provision does not affect the statutory duty to bargain."
Armour & Co., 280 NLRB at 828 n.12. Similarly, we find nothing in
either Article 5 or Article 40 of the MLA that limits the parties'
statutory bargaining obligations.
(6) We grant the Respondent's motion to disregard a portion of the
General Counsel's brief that appears to characterize the Respondent's
agreement to enter into a stipulation regarding proffered testimony as a
stipulation regarding the issue of waiver by bargaining history.
(7) In the absence of exceptions to the Judge's recommended remedy,
we adopt that remedy with the modification noted in note 2, above. We
note, however, that the Judge did not analyze the appropriateness of the
recommended status quo ante remedy under the criteria established by the
Authority in Federal Correctional Institution, 8 FLRA 604 (1982). Based
on a thorough review of the record in this case, we conclude that,
applying those criteria, a status quo ante remedy is warranted in the
circumstances of this case.
(8) Article 16 provides:
Article 16: Details and Temporary Promotions
Section 1 A detail is a temporary assignment of an employee to a
different position (or set of duties) for a specified period with the
employee normally returning to his or her regular duties at the end of
the detail. Details are intended for meeting temporary needs of an
organization when necessary services cannot be obtained by other
desirable or practical means.
Section 2 Employees may be detailed to a different position at the
same grade level, a higher grade level or a lower grade level; or to a
set of duties which have not been classified. OPM and agency directives
and the MLA shall apply to detail assignments.
Section 3 Details of more than 30 consecutive days to a position of a
different title, series and grade must be documented on an SF-50 and
recorded in the employee's Official Personnel Folder (OPF). Details of
less than 30 days will be documented by the supervisor and provided to
the employee. The employee may submit an SF-172, Amendment to Personal
Qualifications Statement, to be included in their OPF.
Section 4 When it is known in advance that a temporary assignment of
a unit employee to a position within the unit classified at a higher
grade will extend for more than 30 days, the employee, if qualified,
shall be temporarily promoted for the period of the assignment. If
during the course of an employee's detail to a higher graded position,
it becomes apparent that the temporary requirement to fill the position
will extend beyond 30 days, management will determine whether to
terminate the detail and fill the position through other means or to
allow the detailed employee to continue in the assignment. If it is
decided that the detailed employee should continue in the position, he
or she will be temporarily promoted effective on the 31st day of the
assignment.
Section 5 Extended details during major reorganizations may be an
exception to the policy of this Article provided the details are
accomplished in accordance with OPM and agency regulations.
Section 6 Temporary promotions in excess of 120 days shall be made
under competitive merit staffing procedures. Prior service under all
temporary promotions or details to higher graded positions within the
preceding 12 months is included in the determination of the 120 day
limitation. Details to higher graded positions and temporary promotions
of 120 days or less need not be filled through competitive procedures.
When competitive procedures are not used, management shall give careful
consideration to rotating the temporary assignment among those employees
with the necessary skills and abilities. Noncompetitive details and
temporary promotions will be assigned fairly and equitably.
Section 7 Employees who are temporarily detailed or promoted will be
permitted to retain dues deduction.
(9) The Servicers essentially performed oil changes and lubrications
and checked the lights on the vehicles.
(10) Nixon resigned his position shortly after the details began.
(11) Ocie Ward had no time at all to relay the information about the
details to Burnham since the details began immediately after his meeting
with Cook.
(12) The meeting was not a grievance meeting, as defined in the
collective bargaining agreement, Article 13, and as described by Ocie
Ward.
(13) Hereinafter referred to as "impact and implementation."
(14) Marine Corps Logistics Base seems to urge this matter should
have been pursued through the contract grievance procedure. This is
rejected because the alleged violation is a failure to comply with a
statutory obligation not a violation of the collective bargaining
agreement.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to meet and negotiate with the American
Federation of Government Employees, Local 2317, the agent of the
exclusive bargaining representative of our employees, American
Federation of Government Employees, over the procedures which we will
observe in exercising our authority with regard to the detail of
bargaining unit employees and concerning appropriate arrangements for
employees adversely affected by such changes.
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 American Federation of Government Employees, Local
2317, the agent of the exclusive bargaining representative of our
employees, American Federation of Government Employees, of any intention
to detail employees and, upon request, negotiate with such
representative concerning the procedures to be observed in implementing
such detail and concerning appropriate arrangements for employees
adversely affected by such detail.
WE WILL rescind details of employees made on May 18, 1987 with
respect to those employees still on such details.
(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, N.E., Suite 736, Atlanta, GA
30367, and whose telephone number is: (404) 347-2324.