30 FLRA NO. 15
Dep't of the Navy, Naval Air Station, Cecil Field, Fla., and AFGE,
Local 2010, Case No. 4-CA-70455 (Decided November 23, 1987)
7114(b)(4)
7116(a)(1), (5), and (8)
7118
AGENCY ULP (ALLEGED) (7116(a)(5))
INFORMATION
AGENCY ULP (ALLEGED) (7116(a)(8))
7114(b)(4)
INFORMATION: EMPLOYEE AND UNION RIGHTS TO DATA FROM AGENCIES
AVAILABILITY OF INFORMATION ("REASONABLY AVAILABLE")
OFFICIAL PERSONNEL FOLDER
NAMES AND HOME ADDRESSES OF UNIT EMPLOYEES
NECESSITY OR RELEVANCE FOR FULL AND PROPER DISCUSSION
AVAILABILITY OF ALTERNATIVES TO INFORMATION OR ITS PURPOSE
NOT SUFFICIENT FOR DENIAL OF NAMES AND ADDRESSES
NORMALLY MAINTAINED BY THE AGENCY (7114(b)(4)(A))
PRIVACY
PRIVACY ACT (5 U.S.C. 552a)
EXCEPTION: ROUTINE USE (5 U.S.C. 552a(b)(3))
NAMES AND HOME ADDRESSES OF UNIT EMPLOYEES
TYPES OF INFORMATION SOUGHT
NAMES AND HOME ADDRESSES OF UNIT EMPLOYEES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION
PROVIDE TO UNION
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
In this unfair labor practice case, the Authority ruled that the
agency had violated section 7116(a)(1), (5), and (8) when it had denied
the union's request for the names and home addresses of bargaining-unit
employees.
The Authority ruled that all arguments raised by the agency against
the disclosure of the information were disposed of by Authority
precedent.
Case No. 4-CA-70455
DEPARTMENT OF THE NAVY
U.S. NAVAL AIR STATION
CECIL FIELD, FLORIDA
Respondent
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2010
Changing Party
The Administrative Law Judge issued the attached decision in this
case, finding that the Department of the Navy, U.S. Naval Air Station,
Cecil Field, Florida (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 and the General Counsel filed an opposition to the
Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, we have reviewed the rulings of the Judge and find that no
prejudicial error was committed. The rulings are hereby affirmed. Upon
consideration of the Judge's Decision, the exceptions, and the entire
record, we adopt the Judge's findings, conclusions, and recommended
Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Department of the Navy, U.S. Naval Air Station, Cecil
Field, Florida shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, Local 2010, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, AFL-CIO,
Local 2010 with the names and home addresses of all employees in the
bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO,
Local 2010 are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commanding Officer and shall be
posted in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. Reasonable steps shall
be taken to ensure that such notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
order as to what steps have been taken to comply.
Issued, Washington, D.C., November 23, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, Local 2010, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents. WE WILL NOT, in
any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of their rights assured them by the Federal
Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 2010 with 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, Region IV, Federal Labor Relations Authority, whose address
is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367 and
whose telephone number is: (404) 347-2324.
Case No. 4-CA-70455
DEPARTMENT OF THE NAVY
U.S. NAVAL AIR STATION CECIL FIELD, FLORIDA
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2010
Charging Party
Nona J. Jordan
For the Respondent
Kenneth D. Battle, Esq.
For the General Counsel of the FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. &
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, & 2410 et seq.
Pursuant to a charge filed on April 14, 1987, and amended on June 11,
1987, by the American Federation of Government Employees, AFL-CIO, Local
2010, (hereinafter referred to as the Union), against Department of the
Navy, U.S. Naval Air Station, Cecil Field, Florida, (hereinafter
referred to as the Respondent), the General Counsel of the FLRA, by the
Regional Director of FLRA Region IV of the FLRA, issued a Complaint and
Notice of Hearing on June 29, 1987, alleging that Respondent violated
Section 7116(a)(1), (5) and (8) of the Statute by failing and refusing
to provide the Union with the names and home addresses of employees in a
unit represented by the Union and as requested by the Union.
Respondent filed an answer admitting all the factual allegations of
the Complaint, except for paragraph 8(c), /1/ of the Complaint and
denying it had violated the Statute.
Pursuant to Section 2423.22 of the FLRA'S Rules and Regulations the
General Counsel of the FLRA filed a "Motion for Summary Judgment" dated
August 14, 1987. General Counsel of the FLRA filed a response to the
opposition to the Motion for Summary Judgment. /2/ This matter was
assigned to the undersigned for disposition.
Having considered the Complaint, Answer, the Motion for Summary
Judgment filed by the General Counsel of the FLRA, Respondent's
opposition, the response to the opposition, the memoranda filed, and the
FLRA'S decision in Farmers Home Administration, Finance Office, St.
Louis, Missouri, 23 FLRA 788 (1986), hereinafter called the Farmers Home
Case, I conclude a hearing in this matter is not necessary because there
is no material fact in dispute.
Accordingly, upon the basis of the above described record, I make the
following findings of fact, conclusions and recommendations.
At all times material herein, the Department of Defense has been, and
is now, an agency within the meaning of Section 7103(a)(3) of the
Statute.
At all times material herein, the Department of the Navy has been,
and is now, a primary national subdivision of the Department of Defense
within the meaning of Section 2421.4 of the Rules and Regulations of the
Authority, as amended.
At all times material herein, the Naval Air Station, Cecil Field,
Florida has been, and is now, an activity of the Department of the
Defense within the meaning of Section 2421.4 of the Authority's Rules
and Regulations, as amended.
At all times material herein, the Union has been, and is now, a labor
organization within the meaning of Section 7103(a)(4) of the Statute.
At all times material herein, the Union has been, and is now, the
exclusive representative of certain Non-Appropriated Fund employees of
the Naval Air Station, Cecil Field, Florida, in a bargaining unit more
fully set forth and described in a collective bargaining agreement
between the American Federation of Government Employees, Local 1824 and
the Naval Air Station Cecil Field, Florida, which is effective by its
terms from on or about May 27, 1982, for at least a three-year period
and which the parties are currently operating under.
At all times material herein, the Union has been and is now the
exclusive representative of certain Appropriated Fund employees of the
Naval Air Station, Cecil Field, Florida in a bargaining unit more fully
set forth and described in a collective bargaining agreement between the
American Federation of Government Employees, Local 1824 and the Naval
Air Station, Cecil Field, Florida, which is effective by its terms from
on or about December 22, 1983, for at least a two year period and which
the parties are currenly operating under.
Pursuant to an Amendment of Certification (Case No. No. 4-AC-40021)
dated December 18, 1984, the names of the American Federation of
Government Employees, Local 1824 was changed to the American Federation
of Government Employees, Local 2010.
At all times material herein, Respondent's Commanding Officer, Philip
H. Jacobs, herein called Jacobs, has been and is now a supervisor and/or
is an agent of Respondent.
On or about January 20, 1987, the Union, by its President, Winston E.
Jernigan, made a request to Jacobs for, inter alia, the names and home
address of the Appropriate and Non-Appropriated Fund bargaining unit
employees.
On or about February 6, 1987, Respondent, by Jacobs, denied the
Union's request for the home addresses of Appropriated Fund bargaining
unit employees.
On or about February 23, 1987, Respondent, by Jacobs, denied the
Union's request for the home addresses of Non-Appropriated Fund
bargaining unit employees.
The information requested by the Union above is normally maintained
by Respondent in the regular course of business; is reasonably
available; and is not guidance, advice, counsel or training for
management officials or supervisors, related to collective bargaining.
The General Counsel of the FLRA, relying on the FLRA'S decision in
Farmers Home Case, supra, contends Respondent violated section
7116(a)(1), (5) and (8) of the Statute when it refused to supply the
Union with the names and home addresses of all bargaining unit
employees. Respondent essentially contends the requirements of section
7114(b)(4) of the Statute have not been met in that Respondent is
prohibited by the Privacy Act, 5 U.S.C. & 552a, from releasing the
information; and the data is not necessary for the Union to carry out
its representational duties.
Section 7114(b)(4) of the Statute provides in relevant part:
"(b) the duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation . . .
"(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon request
and, to the extent not prohibited by law, data --
"(A) which is normally maintained by the agency in the regular course
of business; (and)
"(B) which is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining . . ."
In Farmers Home case, supra, the FLRA held: (1) the disclosure of
the names and addresses of bargaining unit employees to the exclusive
representative was not prohibited by the Privacy Act; (2) an agency's
possession of Official Personnel Files wherein can be found employees'
addresses satisfies the requirements of section 7114(b)(4)(A) and (B) of
the Statute that such data to be normally maintained by the agency and
reasonably available; and (3) such data was necessary under section
7114(b)(4)(B) for unions to meet their statutory obligation to represent
the interests of all employees in the unit without discrimination as
required by section 7114(a)(1) of the Statute, notwithstanding the
existence of alternative means by which a union might communicate to
unit employees. In subsequent decisions the FLRA followed Farmers Home
case, supra, in deciding numerous cases which involved substantially the
same issues. Philadelphia Naval Shipyard, 24 FLRA 108 (1986);
Department of the Navy, Portsmouth Naval Shipyard, 24 FLRA 209 (1986);
Department of the Air Force, Scott Air Force Base, 24 FLRA 226 (1986);
Department of Health and Human Services, Region V, 26 FLRA 460 (1987);
Air Force District of Washington, 26 FLRA 542 (1987); Departments of
the Army and Air Force, Army and Air Force Exchange Service
Headquarters, Dallas, Texas and Army and Air Force Exchange Service,
McClellan Air Force Base, California, 26 FLRA 691 (1987), Long Beach
Naval Shipyard, Long Beach, California, 27 FLRA No. 83 (1987); and 831
Combat Support Group (TAC), George Air Force Base, California, 28 FLRA
No. 16 (1987).
The arguments raised by Respondent herein are not significantly
different from those considered by the FLRA in Farmers Home case, supra,
and cases which followed thereafter, supra. In view of the FLRA'S
holdings in the above cases I conclude Respondent's defenses to its
failure and refusal to provide the Union with the names and home
addresses of unit employees as requested by the Union to be without
merit. I further conclude Respondent was obligated under section
7114(b) of the Statute to furnish the Union with the names and addresses
of unit employees and accordingly, I conclude Respondent's refusal to
furnish such data violated section 7116(a)(1), (5) and (8) of the
Statute.
Accordingly I hereby grant the Motion For Summary Judgment made by
the General Counsel of the FLRA and recommend the Authority issue the
following:
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Navy, Naval Air
Station, Cecil Field, Florida shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, Local 2010, the exclusive representative
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 employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute;
(a) Furnish the American Federation of Government Employees, AFL-CIO,
Local 2010, the exclusive representative of its employees, the names and
home addresses of all employees in the bargaining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO,
Local 2010, 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 or equivalent
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.
(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 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.
/s/ SAMUEL A. CHITOVITZ
Administrative Law Judge
Dated: September 16, 1987
Washington, D.C.
(1) Chapter 8(C) of the Complaint alleges that the requested names
and addresses were "Necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining; . . ."
(2) General Counsel of the FLRA filed "counsel for the General
Counsel's Response to Respondent's Motion to Dismiss General Counsel's
Motion for Summary Judgment." The FLRA'S Rules and Regulations do not
provide for the filing of a response to an opposition to a motion,
without special permission. In the instant case, however, Respondent
inartfully called its opposition to the Motion for Summary Judgment a
"Motion." Thus, I am constrained to consider the Response filed by the
General Counsel of the FLRA, eventhough it raises no new arguments or
considerations not already dealt with in the original "Motion for
Summary Judgment and the Memorandum in support thereof, and adds nothing
of value to the consideration or disposition of the subject case.
We have been found by the Federal Labor Relations Authority to have
committed an unfair labor practice. We have been ordered to post this
Notice and abide by its provisions.
WE WILL NOT refuse to furnish, upon request of the American
Federation of Federal Employees, Local 2010, the exclusive
representative of a 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 our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 2010, the exclusive representative of a unit of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
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.
30 FLRA NO. 14
Small Business Administration and AFGE, Local 2532 (Bussey,
Arbitrator), Case No. O-AR-1402, (Decided November 23, 1987)
7122(a)
7131(d)
ARBITRATION REMEDIES
OFFICIAL TIME
NEGOTIATE THE APPROPRIATE AMOUNT
ARBITRATION AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN
APPEAL, AWARD:
CONTRACT, AWARD CONTRARY TO
OFFICIAL TIME
AMOUNT
The Authority denied the Agency's exceptions to the arbitration
award, disagreeing with the argument that the award requires a grant of
official time without regard to the Agency's needs and work load
requirements. The Authority noted that it has held that agencies and
labor organizations may negotiate amounts of official time which are
reasonable, necessary, and in the public interest. The award in this
case requires the parties to meet and determine, consistent with their
respective interests and rights quaranteed under the Statute, the amount
of official time which is reasonable, necessary, and in the public
interest. The Authority also rejected the Agency's argument that the
award prevented it from correcting past errors regarding the amount of
official time, finding that the Agency had not established that the
order of the Arbitrator, requiring it to bargain over the proposed
change in an established past practice, is contrary to law. Finally,
the Authority rejected the argument that the award is contrary to the
parties' Master Agreement.
Case No. O-AR-1402
U.S. SMALL BUSINESS ADMINISTRATION
Agency
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2532
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Ellen M. Bussey filed by the Small Business Administration
(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. For the following reasons, we deny
the Agency's exceptions.
The grievance in this case concerned a request by the Local Union
President for 100 percent official time which was denied by the Agency.
The grievant was elected President of American Federation of Government
Employees (AFGE), Local 2532 in October 1986. At the same time, he
became Vice President of Council 228 of the National Council of Small
Business Administration (SBA) Locals. On October 3, 1986, the grievant
notified the Agency's Director of Personnel, by memorandum, that he
would be on 100 percent official time status, effective immediately and
"stated that it was his understanding that he would not be required to
sign in and out each day" as a participant in the Agency's flexitime
program. Arbitrator's Award at 5. The grievant cited past practice and
his representional responsibilities as justification for the 100 percent
official time.
The Director of Personnel responded to the Union President's
memorandum on October 6 and instructed him to "report to his assigned
duty station at the start of his regular duty hours each day, to obtain
prior approval for all official time as 'reasonable and necessary' in
accordance with Article 11, Section 2 of the Agreement, and pointed out
that the Agency considered 100 percent official time excessive."
Arbitrator's Award at 6. On October 27, the grievant requested formal
negotiations on the 100 percent official time and flexitime issues. The
Agency rejected the request on October 29. The Union grieved the
Agency's refusal to grant 100 percent official time and its refusal to
waive the requirement that the grievant sign in and out each day. After
Step 2 of the grievance procedure, the matter was submitted to
arbitration.
The issue before the Arbitrator was whether the Agency violated
section 7131(d) of the Statute and the parties' collective bargaining
agreement by not granting the grievant up to 100 percent official time
whenever the Union considered it reasonable and necessary.
The Arbitrator held that it was not within the Agency's discretion to
decide which Union grievances have a reasonable chance of success and
should, therefore, be developed on official time. The Arbitrator also
held that the Union President did not have the authority to determine,
as he did in his letter to the Director of Personnel, that his absence
from his assigned duty station would not affect the Agency's operations.
The Arbitrator determined that there was no requirement that the Union
President be automatically granted 100 percent official time. The
Arbitrator noted, however, that the previous President of AFGE Local
2532 was on 100 percent official time with minor exceptions. Further,
the Arbitrator stated that the evidence showed that the previous
president did request advance permission to take official time, but was
not required to adhere to the detailed justification procedures outlined
in the parties agreement. The Arbitrator stated that nothing in the
record indicated that the grievant knew or should have known, when he
was elected as Union President, that the official time conditions which
applied to the outgoing president would not apply to him, that is, that
management would not equate the agreement provisions of "reasonable and
necessary" with 100 percent official time as it had in the past or that
management would apply more stringent scrutiny to his request for
official time.
The Arbitrator found that the Agency's assertions that the previous
Union President had abused official time did not justify its unilateral
change in the established procedure for requesting and granting official
time. The Arbitrator concluded that the Agency has a right to
reevaluate its policy concerning official time with respect to quantity
and approval, but the Agency could not unilaterally decide that
"reasonable and necessary" official time means 100 percent in 1985 and
only 40 percent in 1987. Arbitrator's Award at 15. The Arbitrator held
that the grievant in this case is entitled to 100 percent official time
only if he can document that appropriate Union business requires 100
percent of his workweek. Id. at 14. The Arbitrator ruled that the
Agency must formally notify the Union of the contemplated changes and
negotiate with the Union, as requested, concerning the proposed changes
in the procedures for requesting and granting official time. The
Arbitrator noted further that the parties' agreement provides for
special official time for officers of the National Council of SBA Locals
and that since the grievant became an officer of the Council his union
responsibilities had increased over those of previous presidents of the
Local.
As her award, the Arbitrator held (Award at 16):
The President of Local 2532 is not automatically entitled to
100% official time by Law or Agreement. The Agency did grant the
previous Union President 100% official time for some years,
however, and cannot change such an established practice, or the
procedures required for obtaining official time approval,
unilaterally and arbitrarily. It must formally put the Union on
notice and negotiate both issues in good faith, allowing (the
grievant) sufficient time to enable him to carry out appropriate
Union activities in accordance with the findings.
The Agency contends that the Arbitrator's award is contrary to law in
several respects. First, the Agency argues that the award is contrary
to section 7131(d) of the Statute and the parties' Master Agreement
because it prevents the Agency from considering its work load needs in
granting official time. Secondly, the Agency argues that the award is
contrary to law because it prevents the Agency from correcting a past
error regarding the amount of official time granted presidents of the
Union Local and the process by which requests for official time are
granted. Finally, the Agency asserts that the award is contrary to the
parties' Master Agreement because it orders the Agency to negotiate a
national policy on the local level instead of with the National Council
of Locals.
The Union contends that the Arbitrator's award is fully consistent
with the letter and the spirit of section 7131(d). The Union also
argues that the award is consistent with the terms of the parties'
Master Agreement. The Union maintains further that the Agency's
arguments that the award precludes it from correcting a past error and
requires it to negotiate with the Union in violation of the Master
Agreement provide no basis for review and should therefore be rejected.
We conclude that the Arbitrator's award is consistent with law. We
disagree with the Agency's argument that the award requires a grant of
official time without regard to the Agency's needs and work load
requirements. The Arbitrator specifically stated that "(r)egardless of
the percent of official time to which the employee is entitled, the
granting of such time affects an agency's ability to assign work and,
though the Agency is compelled to make such adjustments, it has a right
to expect Union cooperation as well as the presence of essential people
in an emergency." Arbitrator's Award at 13. The Arbitrator determined
that neither law nor the parties' agreement dictated a fixed guarantee
of official time for the Union President, although a guarantee of a
fixed amount of time could have been negotiated. The Arbitrator held
that "(t)he grievant (in this case) is entitled to 100% official time
only if he can document that appropriate Union business requires 100% of
his work week." Id. at 14.
We have held that consistent with the Statute, agencies and labor
organizations may negotiate amounts of official time which are
reasonable, necessary, and in the public interest. National Archives
and Records Administration and American Federation of Government
Employees, Council 236, Local 2928, 24 FLRA 245 (1986). The
Arbitrator's award in this case requires the parties to meet and
determine, consistent with their respective interests and rights
guaranteed under the Statute, the amount of official time which is
reasonable, necessary, and in the public interest. The award does not
dictate any action, procedure, or particular grant of official time
which is contrary to the Statute or the public interest. Further, the
Agency has not demonstrated that the award conflicts with the cited
provisions of Article 11 of the parties' Master Agreement (which, among
other things, provides the Agency with discretion to approve requests
for official time). The requirement that the parties negotiate to
determine (1) a reasonable and necessary amount of official time and (2)
the procedures for requesting and granting official time, does not
remove the Agency's discretion to approve official time (which may be
exercised by agreement) nor does it prevent the Agency and the Union
from adhering to the requirements and procedures of the parties' Master
Agreement as they relate to requesting and approving official time.
We also find that the award does not prevent the Agency from
correcting past errors regarding the amount of official time granted
presidents of the Union Local and the process by which requests for
official time are granted. The Arbitrator found that the Agency had
established a past practice as to the amount of and the method of
requesting official time for the President of the Union Local.
Arbitrator's Award at 14.15. The Arbitrator held, however, that the
Agency has a right to reevaluate the granting of official time with
respect to quantity and approval procedures, but it could not
unilaterally decide to alter a policy which had become an established
past practice without formally notifying the Union and negotiating the
proposed changes. The Arbitrator's holding is consistent with the
Authority's decision in U.S. Army Corps of Engineers, Kansas City
District and Local 29, National Federation of Federal Employees, 22 FLRA
87 (1986), where it was found that an arbitrator's award withdrawing
management advisories and reinstating the established past practices
regarding the procedures for granting official time until completion of
negotiations was not inconsistent with law. The Authority held in that
case that the Arbitrator's determination that the Agency was required to
bargain concerning the change in established past practice was not
inconsistent with law. See also Veterans Administration, Veterans
Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054, 1057-58
(1985) (unilateral change in past practice allowing union officers to
use official time at their discretion violated the Statute). Therefore,
we find that the Agency in this case has not established that the order
of the Arbitrator, requiring it to bargain over the proposed change in
an established past practice, is contrary to law.
Finally, we reject the Agency's argument that the award is contrary
to the parties' Master Agreement because it orders the Agency to
negotiate a national policy on the local level instead of with the
National Council of Locals. The award requires the Agency to "formally
put the Union on notice and negotiate . . . in good faith." Arbitrator's
Award at 16. The award does not require negotiations at any particular
level nor does it prevent the parties from bargaining consistent with
the requirements of the parties' master and local agreements.
In sum, the Agency has not established that the Arbitrator's award is
deficient. Rather, the Agency's exceptions amount to mere disagreement
with the Arbitrator's reasoning and conclusions and provide no basis for
finding the award deficient. See U.S. Army Armor Center and Ft. Knox
and American Federation of Government Employees, Local No. 2302, 28 FLRA
753 (1987).
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., November 23, 1987.
/s/ JERRY L. CALHOUN, CHAIRMAN
/s/ JEAN MCKEE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 13
AFGE, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, Case
No. O-NG-1210, (Decided November 12, 1987)
7106(b)(3)
NEGOTIABILITY PROCEDURE
BIFUCATED PROCEEDINGS NOT PROVIDED BY REGULATIONS
SERVICE DATE
SERVICE OF ALLEGATION ON UNION BY MAIL
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
NO BASIS FOR GRANTING RECONSIDERATION
ATTEMPT TO RELITIGATE THE MATTER
This case was a request for reconsideration of the Authority's
earlier decision, particularly the refusal to grant the Union an
extension of time to file additional arguments on the negotiability of
the proposals. In that decision, the Authority had noted that under
section 2429.27(b) and (d) of its regulations, the date of service of
the Agency head's disapproval was the date it was deposited in the mail.
Accordingly, the disapproval had been timely served on the Union and
therefore under section 2424.7 of the regulations the full response of
an exclusive representative must be filed within 15 days of receipt of
that statement. An earlier extension had been granted the Union because
of, among other things, the complexity of the issues and, secondly, the
Union had not demonstrated why it should be granted a further extension.
In its request for reconsideration, the Union argued that its request
for an opportunity to submit arguments was conditioned on an Authority
ruling that the agency head's disapproval was timely served. Absent a
ruling on the procedural issue, arguing the merits could have been a
futility. The Union argues that the Authority was remiss in not
promptly notifying it of the decision to deny the request; that the
decision is inconsistent with the Authority's treatment of similar
requests made by various agencies; that the Authority has misapplied
its regulations, in that disputes relating to disapprovals should be
litigated under ULP procedures rather than under negotiability
procedures.
In denying the request, the Authority noted that its regulations
governing negotiability proceedings do not provide for bifurcated
proceedings such as the Union sought. Moreover, the Authority's
disposition of the procedural matter raised was based on established
precedent. The Authority's regulations specifically define date of
service or date served as the date the matter served is deposited in the
U.S. mail or is delivered in person. The Union's reasons in support of
its request constitute nothing more than disagreement with the
Authority's procedures, regulations and application of those
regulations. They do not establish extraordinary circumstances within
the meaning of section 2429.17.
Case No. O-NG-1210
(28 FLRA No. 152)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1815
Union
ARMY AVIATION CENTER
FORT RUCKER, ALABAMA
Agency
This matter is before the Authority because of the Union's request
for reconsideration of the Authority's Decision and Order in the
above-captioned case. No opposition has been filed by the Agency.
The American Federation of Government Employees (Union) filed a
petition for review dated November 15, 1985, of an agency head's
disapproval of portions of a locally executed agreement. The Union
asserted that the agency head's decision had not been served on it in a
timely manner and that the locally executed agreement was in effect. In
support, it stated that the agreement had been executed locally on
October 4, 1985, and the agency head's disapproval was not served upon
it until November 5, 1985 -- 32 days later.
In its statement of position the Agency disputed this assertion,
stating that it had deposited the disapproval in the U.S. mail
(certified) on November 1, 1985. In support, it provided a copy of a
return receipt which indicated that mailing date. It also noted that
the Authority had held that an agency head's disapproval was properly
served when it was deposited in certified mail on or before the
thirtieth day after local execution of the agreement.
Subsequent to the filing of the Agency's statement of position, the
Union requested and was granted a 3-week extension of time in which to
file its response. As reasons for its request, it cited the holidays
and the complexity of the issues in the case. The Union also submitted
its response to the Agency's statement of position. In its response, it
argued that the Agency's assertion that service of the agency head's
disapproval occurred when it was deposited in the mail was incorrect.
Rather, the Union contended that under a correct interpretation of
Authority regulations, the date of service should be the date the
disapproval was received by the Union. Thus, while not disputing the
Agency's representation as to mailing date, it contended that the agency
head's disapproval was untimely served based on date of receipt by the
Union. It cited several Authority decisions which it asserted supported
its argument. The Union further requested that it be given a futher
opportunity to present arguments as to the negotiability of the
proposals in dispute if the agency head's disapproval was held to have
been timely served.
In our decision in this case, we noted that under section 2429.27(b)
and (d) of the Authority's regulations, the date of service of the
Agency head's disapproval was the date it was deposited in the mail.
Accordingly, we held that the Agency head's disapproval had been timely
served on the Union. We also stated that under section 2424.7 of the
Authority's regulations the full response of an exclusive representative
to an agency's statement of position must be filed within 15 days of
receipt of that statement. We noted the earlier extension which had
been granted the Union because of, among other things, the complexity of
the issues in the case and, secondly, the Union had not demonstrated why
it should be granted a further extension to file additional arguments.
The Union requests reconsideration of our denial of its request for
the opportunity to submit additional argument in the case. In support
of its request for reconsideration, the Union asserts that its request
for the opportunity to submit arguments as to the negotiability of the
proposals was not a "per se request for an extension of time." Rather,
the request was conditioned on an Authority ruling that the agency
head's disapproval was timely served. The Union contends that absent a
ruling on this procedural issue, arguing the merits could have been a
futility on its part. It also contends that the Authority was remiss in
not promptly notifying it of the decision to deny its request. The
Union further argues that our decision is inconsistent with the
Authority's treatment of similar requests made by various agencies. It
also contends that the Authority has misapplied its regulations for
processing negotiability issues in cases involving agency head
disapprovals of agreements. It contends that disputes relating to
disapprovals should be litigated under unfair labor practice procedures
rather than under negotiability procedures.
The Authority's regulations which govern negotiability proceedings do
not provide for bifurcated proceedings such as the Union sought.
Moreover, the Authority's disposition of the procedural matter raised by
the Union in its reply brief was based on established precedent. The
Authority's rules and regulations specifically define date of service or
date served as the date the matter served is deposited in the U.S. mail
or is delivered in person. 5 C.F.R. Section 2429.27(d). This
definition is one of long standing. See, for example, 44 Fed. Reg.
44740, 44772-73 (1979); 45 Fed. Reg. 3482, 3519-20 (1980); National
Federation of Federal Employees, Local 1445 and Alabama Air National
Guard, 12 FLRA 64 (1983); American Federation of Government Employees,
AFL-CIO, Local 900 and Department of the Army, Office of the Adjutant
General, U.S. Army Reserve Components Personnel and Administrative
Center, St. Louis, Missouri, 18 FLRA 40 at n.1 (1985), reversed as to
other matters in our decision on remand in American Federation of
Government Employees, AFL-CIO, Local 900 and Department of the Army,
Office of the Adjutant General, U.S. Army Reserve Components Personnel
and Administrative Center, St. Louis, Missouri, 25 FLRA 952 (1987).
We reject the Union's contentions that it was accorded disparate
treatment. As to those examples which it cites, we note the following.
In American Federation of Government Employees, AFL-CIO, Council 214 and
U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund
Instrumentality, Albany, Georgia, 29 FLRA No. 126 (1987), the Agency
requested to supplement its statement of position in order to address
the issue of whether certain proposals were negotiable as appropriate
arrangements under section 7106(b)(3). The Agency's request was limited
to those proposals about which the Union had raised that particular
issue for the first time in its reply brief. It sought to submit
arguments in order to fulfill its responsibilities under the Authority's
decision in National Association of Government Employees, Local R14-87
and Kansas Army National Guard, 21 FLRA 24 (1986). In those
circumstances, the Authority granted the Agency's request and provided
the Union with an opportunity to address the Agency's supplemental
submission.
The Union does not state any specifies in conjunction with its
reference to American Federation of Government Employees, AFL-CIO, Local
1546 and Department of the Army, Sharpe Army Depot, Lathrop, California,
Case No. O-NG-1015 (25 FLRA 958 (1987)). Our examination of the case
file reveals two matters which may fit within the Union's stated
objections. First, the Agency submitted a corrected page of its
statement of position, stating that its original submission erroneously
contained a page from its first draft rather than the final version.
Allowing a party to make such a correction is not an indication of
disparate treatment. Second, the Authority granted a request by the
Office of Personnel Management (OPM) to file an amicus curiae brief.
The Union was allowed an opportunity to respond and its request for an
extension of time was granted.
Another of the Union's objections pertains to treatment accorded OPM.
The Union cites no specifics to support its allegation that the
Authority has allowed OPM to submit arguments after time limits have
expired. If the Union is referring to situations where OPM has
requested to file an amicus curiae brief, we point out that requests to
file these briefs are not governed by section 2424.6 of the regulations,
which establishes time limits for the filing of the agency's statement
of position in a negotiability case. Rather, requests to file amicus
curiae briefs are governed by section 2429.9 of the regulations.
These and the Union's other reasons submitted in support of its
request constitute nothing more than disagreement with the Authority's
procedures, regulations and application of those regulations. They do
not establish "extraordinary circumstances" within the meaning of
section 2429.17. In view of the failure to establish the existence of
extraordinary circumstances, we deny the Union's request for
reconsideration.
Issued, Washington, D.C., November 12, 1987.
/s/ JERRY L. CALHOUN, CHAIRMAN
/s/ JEAN MCKEE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 12
Dep't of the Army HQ, Presidio of San Francisco and AFGE, Local 1457,
Case No. 9-CA-60127, (Decided November 12, 1987)
7116(a)(1) and (5)
7116(d)
AGENCY ULP (ALLEGED) 7116(a)(5)
OFFICIAL TIME
OFFICIAL TIME
AMOUNT
PROCEDURE, FORUMS
FACTUAL ISSUES
GRIEVANCE OR ULP PROCEEDINGS, SELECTION OF (7116(d))
DIFFERENT ISSUES NOT A 7116(d) BAR TO FILING
FILING IS DETERMINATIVE
REMAND TO ALJ
This unfair labor practice involved the issue of whether the
Respondent Agency violated section 7116(a)(1) and (5) by unilaterally
changing the amount of official time the Union president was allowed for
representational duties. After the hearing closed, but prior to the
time for filing of briefs, the Respondent moved that the record be
reopened to receive a copy of an amended grievance form or alternatively
that the Judge take notice of the amended grievance. The Respondent
alleged that the amended grievance constituted a bar to the proceeding
because the charge was filed after the grievance. The Judge had
considered the amended grievance and concluded that the complaint was
not barred because the basic issue raised in the complaint differed from
those raised in the grievance and "it appeared unlikely that an
arbitrator would ever reach the question of whether a statutory right
was involved." In support of its motion the Respondent submitted
portions of the transcript of the arbitration hearing and a copy of the
arbitration award and argues that the arbitrator considered the same
statutory issues raised by the complaint and decided by the Judge.
The Authority concluded that the new evidence presents and reopens
the question concerning the Authority's jurisdiction and therefore must
be addressed. It granted the Respondent's motion and remanded the case
to the Judge to develop a full record and to make appropriate findings
and determinations on whether the complaint is barred under section
7116(d).
Case No. 9-CA-60127
DEPARTMENT OF THE ARMY HEADQUARTERS
PRESIDIO OF SAN FRANCISCO
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1457, AFL-CIO
Charging Party
This unfair labor practice is before the Authority on exceptions to
the attached decision of the Administrative Law Judge. The Respondent
filed exceptions to the decision and the General Counsel filed
cross-exceptions and an opposition to the Respondent's exceptions. The
issue is whether the Respondent violated section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute) by
unilaterally changing the amount of official time the Union president
was allowed for representational duties. The Respondent also filed a
motion to remand the case to the Judge to reopen the hearing for the
purpose of considering new evidence on whether the complaint is barred
by section 7116(d) of the Statute. The General Counsel filed an
opposition to the motion. For the reasons stated below, we remand this
case to the Judge on that question.
After the hearing closed, but prior to the time for filing of briefs,
the Respondent moved that the record be reopened to receive a copy of an
amended grievance form or alternatively that the Judge take notice of
the amended grievance. The Respondent alleged that the amended
grievance filed on January 1, 1986, constituted a bar to this proceeding
because the charge in this case was filed on February 3, 1986. The
General Counsel filed an opposition.
The Judge ruled that there was already record evidence concerning the
filing of the grievance. Therefore, for completeness of the record, he
found it to be appropriate to admit further evidence concerning the
exact nature of the grievance in order to allow for a suitable
determination of whether the matter was properly before the Authority.
He also ruled that the admission of the evidence was not prejudicial to
the General Counsel and deemed it unnecessary to grant the General
Counsel's request to rebut the document.
After reviewing the amended grievance form, the Judge determined that
the amended grievance was not a bar to the complaint. Specifically, he
found that the complaint was not barred because the basic issues raised
in the complaint differed from those raised in the grievance filed by
the Union president in his individual capacity. In so finding the Judge
stated that "it appears unlikely that an arbitrator would ever reach the
question of whether a statutory right was involved." Decision at 9.
On the issue of whether the Respondent violated the Statute, the
Judge concluded that the Respondent had violated section 7116(a)(1) and
(5) as alleged and recommended that the Respondent be ordered to cease
and desist and take certain corrective action.
In support of its motion to remand, the Respondent has submitted
portions of the transcript of the arbitration hearing on the amended
grievance and a copy of the arbitrator's opinion and decision on the
grievance. On the basis of the transcript and arbitrator's award, the
Respondent argues that contrary to the statement of the Judge, the
arbitrator considered the same statutory issues raised by the complaint
and decided by the Judge. Consequently, the Respondent contends that
the hearing must be reopened to consider the question of whether the
complaint is barred by section 7116(d) in view of the arbitrator's
award.
The General Counsel opposes the motion, but requests that if the
motion were granted, the remand be limited to the question of whether
the complaint is barred.
The Authority has previously held that section 7116(d) only precludes
duplicate filings of an issue actually raised in the grievance and
unfair labor practices forums and does not extend to an issue which the
aggrieved party could have, but did not, raise in the earlier-selected
forum. Immigration and Naturalization Service, U.S. Department of
Justice and American Federation of Government Employees, Local 40, 18
FLRA 412 (1985). The Respondent's motion to remand renews its
contention that the Authority lacks jurisdiction in this matter because
the earlier-filed grievance raised the same issues subsequently raised
in this unfair labor practice proceeding. In support of this
contention, the Respondent has submitted the arbitrator's award in the
grievance which sets forth the issues that the Respondent and the
Charging Party mutually agreed to submit for decision to the arbitrator
in the grievance proceeding. This new evidence was not available at the
time the Judge made his determination on the issue. In our view, the
arbitrator's award presents and reopens the question concerning the
Authority's jurisdiction and therefore must be addressed. See, for
example, Lowry Air Force Base, Denver, Colorado, 29 FLRA No. 51 (1987);
Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.),
23 FLRA 475 (1986).
We grant the Respondent's motion and remand this case to the Judge to
develop a full record and to make appropriate findings and
determinations on whether the complaint is barred under section 7116(d).
If the Judge determines that the complaint is barred in part, he should
recommend appropriate remedial action if any. The parties' right to
file exceptions to any portion of the Judge's decision on remand is
preserved.
This case is remanded to the Judge for appropriate action.
Issued, Washington, D.C., November 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 9-CA-60127
DEPARTMENT OF THE ARMY HEADQUARTERS, PRESIDO OF
SAN FRANCISCO
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1457, AFL-CIO
Charging Party
Roselyn B. Rosenfeld, Esq.
For the Respondent
Timothy Sheils, Esq.
For the General Counsel
Lawrence L. Laughlin
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq., (herein
called the Statute). It was instituted by the Regional Director of
Region IX based upon an unfair labor practice charge filed on February
3, 1986 and amended on March 7, 1986, by the American Federation of
Government Employees, Local 1457, AFL-CIO (herein called the Union)
against the Department of the Army Headquarters, Presidio of San
Francisco (herein called the Respondent). The Complaint alleged that
Respondent violated section 7116(a)(1) and (5) of the Statute by a
unilateral change in the past practice of allowing 100 per cent use of
official time by the Union President.
Respondent's Answer denied the commission of any unfair labor
practices.
A hearing was held before the undersigned in San Francisco,
California, at which time the parties were represented by counsel and
afforded full opportunity to adduce evidence and to call, examine, and
cross-examine witnesses and to argue orally. Timely briefs were filed
by the Respondent and the General Counsel and have been duly considered.
Upon consideration of the entire record in this case, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendation.
1. At all times material herein, the Union has been the certified
exclusive representative of Respondent's approximate 336 employees.
Also, the Union, at all times material has been the certified
representative of approximately 485 employees of several tenant
organizations connected with Respondent including the Letterman Army
Medical Center, Letterman Army Institute of Research and the 91st
Division Training.
2. At all times material herein, Lawrence L. Laughlin, employed by
Respondent as a carpenter has been the Union's president. The record
disclosed that from the beginning of his presidential term Laughlin
worked full-time on behalf of the Union. From approximately March 1981,
Laughlin worked regular eight-hour days in the Union office, rather than
working his customary job in Respondent's carpentry shop. The parties
stipulated that Laughlin worked no more than 30 days at the carpentry
shop from July 1981 to May 12, 1986, at which time he was relieved of
his duties by Respondent. In fact, other than for two separate one week
voluntary details at the carpentry shop in 1984, Laughlin only worked in
the carpentry shop for about six days between March 1981 and December
1985.
3. Whether or not it was appropriate, Laughlin directed the Union as
a one-man operation. Laughlin handled all grievances, classification
appeals, MSPB actions and EEO complaints. He met with an average of
eight employees daily to discuss problems. Also, Laughlin negotiated
the parties' last collective bargaining agreement, was responsible for
offering Union input in any proposed changes in working conditions, and
attended various agency meetings as the Union representative.
4. At the beginning of his presidency in 1981, Laughlin followed a
procedure of meeting with his superviosr, either Guido Scotto or Art
Garcia, each morning to explain what his Union activities were for the
day. After about three months of this procedure, Laughlin began
reporting to the carpentry shop at the beginning of the work day and
then leaving for the Union office without any discussion with
supervision.
5. In addition to the reporting requirements, Laughlin was required
to turn in Official Time Reports (herein called OTRS) to his supervisors
which reflected the amount of time he was spending working on Union
activities. The procedure regarding the OTRS changed several times
during the course of Laughlin's tenure. At first, Laughlin turned the
forms in to Respondent's Employee Relations Office through his
supervisor. Initially Laughlin provided the OTR form daily, but later
he began to turn them in once, a few at a time. Finally, while he
submitted an OTR form for each day, he began to turn them in only once
every two or three weeks.
6. The parties executed a collective bargaining agreement on July
23, 1982, which included an "official time" provision, Article XI.
Article XI allowed the Union a total of 2570 hours of annual official
time. With respect to the president's use of official time the
agreement states that, "The 2570 hours consists of 1200 hours for the
President's use."
7. Despite the collective bargaining agreement's apparent limitation
on the president's use of official time, Respondent's enforcement of the
provision was minimal. Although, on September 22, 1982, John Sergeant,
a labor relations specialist wrote Laughlin stating "the Union President
is authorized 100 hours per month under the new agreement. I look
forward to reviewing your August 1982 time report to insure that we are
on track", Laughlin continued to work an eight hour day for the Union.
It appears that Respondent's next effort to limit Laughlin's use of
official time occurred more than two years later when on January 18,
1985, Laughlin received a letter from Thomas Edgerton, Director of
Engineering and Housing stating that the president was limited to "1200
hours". Laughlin, however, continued full-time usage until sometime
around November 22, 1985.
8. According to Respondent around April 1985, it began to intensify
its effort to limit Laughlin's use of official time. The increased
effort apparently resulted from a new management team which "brought new
ideas and a fresh resolution to improve the efficiency and
cost-effectiveness of the organization wherever possible." According to
Mark Leu, "we started trying to get (t)his thing squared away as far as
time reports and missing reports and so on." Therefore, during this
period Respondent apparently began a "campaign" to require Laughlin to
maintain and turn in accurate records of his use of official time, and
to notify him of its desire to limit his use of official time to the
"1200" hours stated in the collective bargaining agreement.
9. Between May 1985 and November 22, 1985 Laughlin met with
Respondent's representative John Sergeant on many occasions, usually in
Sergeant's office, but some times in Laughlin's office. According to
Sergeant, the "1200" hour cap was acknowledged by Laughlin; Sergeant
proposed methods for reduction of official time by Laughlin including
putting Laughlin on the Union payroll, hiring a part-time business agent
or delegating more work to other Union officials. It is assumed that
Respondent felt this was notice of its time limitation to Laughlin.
10. Correspondence beginning April 22, 1985 confirms that Respondent
began efforts to limit Laughlin's use of official time. However, none
of the correspondence seems to be directed specifically at the "1200"
hour cap. In fact it appears that the letters of April 22, 1985, August
28, 1985 and September 9, 1985 voiced Respondent's objection but,
concerned use of official time to "represent non-bargaining unit
employees" and had nothing to do with the "1200" hour cap. Similarly, a
May 20, 1985 letter from John Sergeant stated generally that he expected
"all employee union officials to be in full compliance with Article XI."
Likewise, an August 28, 1985 letter from John Sergeant alluding only to
"all Union officials" are in full compliance with Article XI. Finally,
the subject of a November 13, 1985 report concerns missing OTRs. Thus,
none of the above correspondence cleary signaled Laughlin, in my
opinion, that Respondent was overly interest in the "1200" hour cap or
desired to bargain about the "1200" hour cap.
11. On November 22, 1985, Supervisor Garcia handed Laughlin a
memorandum which, in part, stated:
2. Article XI, Section 13, states that you will be authorized
no more than 1200 hours of official time each calendar year. Your
usage of 1485 hours as of 9 November 1985 exceeds this amount.
3. Effective 25 November 1985, you are, therefore, directed to
either report for work or to request appropriate leave. If you do
not report for work and are not on approved leave, you will be
carried on an absent without approved leave (AWOL) status.
Thus, for the first time, Respondent clearly expressed concern for
what it apparently viewed as a misuse of such time by Laughlin.
Laughlin immediately called the Union's district vice president, Walt
Peters, and sought his advice. Laughlin then called Sergeant and
complained that this change had occurred without bargaining. Sergeant
told Laughlin that a full-time president was not justified and, after
Laughlin threatened to file an unfair labor practice charge, Sergeant
signaled Respondent's inflexibility on the issue by answering that the
unit represented by the Union was not appropriate for exclusive
recognition and that Respondent would not change its position. The
following month, Laughlin telephoned Sergeant three more times,
unsuccessfully attempting to convince Respondent to negotiate over the
change.
12. In February and March 1986, months after the change had been
implemented and Laughlin had been placed in non-pay AWOL status,
Laughlin met with Sergeant and Mark Leu, Respondent's chief of
management employee relations. Laughlin, who had not received any pay
since November 25, 1985, agreed to work 16 hours each week if Respondent
agreed to remove the AWOL and allow the Union vice-president greater
access to the management employee relations office. However, at the
March meeting Respondent attempted to set a rigid schedule as to which
16 hours Laughlin would work each week. Laughlin could not agree to
this and the tenuous settlement fell apart. The parties had no more
negotiations.
13. After receiving the November 22, 1985 memorandum, Laughlin
continued to work full-time on behalf of the Union even after Respondent
had placed him on AWOL. In March 1986, Respondent suspended Laughlin
for two weeks and, on May 12, 1986, the Respondent removed Laughlin from
its employment because he continued to work full-time for the Union.
The record reveals that Union President Laughlin, over a prolonged
period, openly worked as a full-time president with Respondent's
knowledge despite contractual provisions which seemingly specifically
limited his use of official time. The record also discloses that
Respondent was or should have been aware of Laughlin's undisguised use
of official time to serve full time as Union President. Consequently,
Respondent's failure to enforce the contractual provision relating to
official time allowed the practice of usage by Laughlin to become a
working condition which could not be unilaterally changed without first
notifying and bargaining with the union. United States Department of
the Treasury, Internal Revenue Service, and United States Department of
the Treasury, Internal Revenue Service, Houston, District, 20 FLRA 51
(1985).
Respondent's analysis of the case is that the existing contract
provision prohibits establishment of a past practice concerning use of
official time. However, the Authority has already made it clear that a
past practice can modify a contract provision. See Department of
Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort
Eustis, Virginia, 20 FLRA 248, 267-268 (1985); Internal Revenue Service
and Brookhaven Service Center, 6 FLRA 713 (1981); Social Security
Administration, Mid-America Service Center, Kansas City, Missouri, 9
FLRA 229 (1982); see also Veterans Administration, Veterans
Administration Medical Center, Muskogee, Oklahoma, 19 FLRA 1054, 1075
(1985). The past practice in this case, which was relied on over a
period of several years undoubtably was the actual practice being
following and therefore, modified the contractual official time
provisions. Since the provision concerning Laughlin's use of time was
modified by the past practice neither the General Counsel's argument
that the agreement was not in conflict with the practice or the argument
that what ever legal effect existed, "died" with the expiration of the
agreement on July 23, 1985, need not be considered.
exists.
Respondent also argues that whether the Union President is allowed
1200 hours or 100 per cent of his time for official time is a matter of
contract interpretation. The General Counsel asserts only that under
Social Security Administration, 13 FLRA 112 (1983), official time is
negotiable as to substance and does not address the above argument. It
is my opinion that Respondent is mistaken. The issue of official time
is one of jurisdiction i.e. whether the Authority will accept or decline
to consider the matter. The Authority has always held that where a
statutory right is involved the contract article relied on must contain
a clear and unmistakable waiver, or the contractual language must
clearly show that the exclusive representative intended to give up a
right granted by the Statute. Social Security Administration, 13 FLRA
409 (1983); Department of the Air Force, Scott Air Force Base,
Illinois, 5 FLRA 9 (1981); see also Internal Revenue Service, Omaha
District Office, 4 A/SLMR 493 (1974). Article XI, in my opinion, when
read in its entirety, does not lend itself totally to the interpretation
urged by Respondent. Accordingly, my view is that a clear and
unmistakable waiver has not been established by Respondent.
Section 7131 grants employees representing an exclusive
representative authorized official time to perform representational
functions during which time the employee would otherwise be in duty
status. Where an agency seeks to place limitations on those rights
whether established by practice or contract, my view, as already
expressed, is that the Authority would not reject jurisdiction because
what is involved is clearly a statutory right. The Authority has
already indicated that questions involving its jurisdiction to entertain
a case must be addressed. See Portsmouth Naval Shipyard and Department
of the Navy, 23 FLRA 475 (1986). Since the Authority would reserve its
right to exclusively rule on the application of a statutory right, any
contention by a respondent that a waiver occurred or that the matter
should be subject to interpretation by an arbitrator must be rejected.
For this reason Respondent's use of Pearl Harbor Naval Shipyard,
8-CA-753 (1982) and FAA, Farmington, Maine, 5-CA-466 (1982) both
non-precedential cases misses the point, for in neither of those cases
is a statutory right, which would require different analysis, involved.
Both are, therefore, distinguishable from the instant case and do not
aid in its resolution.
proceeding.
Respondent also alleges that an amended grievance filed on January 1,
1986, which was not placed in evidence at the hearing, constitutes a bar
to these proceedings. In reviewing the record, it was found that
evidence of a grievance having been filed in the matter was presented.
After the hearing closed, but prior to the time for filing of briefs,
Respondent on July 3, 1986, moved that the record be reopened to receive
a copy of an amended grievance form in Case No. 85-35, or alternatively
that under Federal Rule of Evidence 201(d) the undersigned take judicial
notice of the amended grievance. Respondent noted that the amended
grievance was filed, prior to the February 3, 1986 unfair labor practice
charge in this case. Thereafter, on July 14, 1986 the General Counsel
filed an opposition to Respondent's motion stating the inappropriateness
on Respondent's request since the amended grievance was not "newly
discovered or unavailable" at the time of the hearing. On that same
date, the General Counsel moved to postpone the filing of briefs. While
the undersigned denied the motion to postpone filing of briefs, no
ruling was made on Respondent's request to reopen the record, at that
time. /1/ For completeness of the record, and since there is record
evidence concerning the filing of the grievance, it is deemed
appropriate to admit further evidence concerning the exact nature of the
grievance in order to allow for a suitable determination of whether the
matter is properly before the Authority. See Portsmouth Naval Shipyard
and Department of the Navy, supra. Case law is clear that where a
grievance raises questions other than those involved within the context
of an unfair labor practice complaint, it does not bar the complaint
under section 7116(d) of the Statute. Aerospace Guidance and Meterology
Center, Newark, Ohio, 4 FLRA 512 (1980). Furthermore, where a
respondent is attempting to support an affirmative defense that section
7116(d) applies, it must provide sufficient evidence to show that the
issues raised in the unfair labor practice complaint were raised under
the grievance procedure. Social Security Administration, Office of
Program Operations and Field Operations, Sutter District Office, San
Francisco, California, 5 FLRA 504 (1981). Here Respondent requested
that the record be reopened to receive an amended grievance form or
alternatively to take judicial notice of its existence to meet those
requirements. In reopening the record, it is my view that since a
jurisdictional question is involved, the reopening to receive the
amended grievance form is essential to developing a complete record.
Furthermore, review of the amended grievance and the requested
disposition convinces the undersigned that its admission is not
prejudicial to the General Counsel. Consequently, it is deemed
unnecessary to grant the General Counsel's request to rebut the
document. In my opinion the Authority, where as here, both a statutory
right and a jurisdictional question are involved, would not rely on an
arbitrator to make a decision as to whether or not that statutory right
had been violated.
In granting Respondent's motion to reopen the record and consider the
amended grievance, I find that although the grievance was filed prior to
the unfair labor practice charge herein, it does not require application
of the section 7116(d) bar. Department of Defense Dependents Schools,
Pacific Region, 17 FLRA 1001 (1985). As already noted, the amended
grievance involves a jurisdictional matter which can ultimately be
decided only by the Authority. See Portsmouth Naval Shipyard and
Department of the Navy, supra. Moreover, the thrust of the amended
grievance concerns denial of falsification of records concerning use of
official time. The main concern of the unfair labor practice charge, on
the other hand, is the purported change in a past practice established
over the preceding three or more years. In those circumstances, it
appears unlikely that an arbitrator would ever reach the question of
whether a statutory right was involved. In reviewing the amended
grievance, it is clear that its concern is primarily with the results of
an "erroneous CID report." It deals with falsification and recordation
of official time by Laughlin. The amended grievance, however, does not
specifically deal with refusal to negotiate on statutory rights in
derogation of section 7131 and section 7116(a)(1) and (5) of the
Statute.
The statutory rights involved are institutional in that they run
directly to the Union not to an individual. Thus, the complaint
involves rights of the Union to negotiate concerning official time while
the amended grievance involves only the individual rights of Laughlin.
Therefore, it is found that the complaint in this case is not barred by
the provisions of section 7116(d) of the Statute since the basic issues
raised in the complaint differ from those raised in the earlier amended
grievance filed by Laughlin in an individual capacity. Moreover, the
rights involved are jurisdictional which in my opinion the Authority
would not ordinarily defer to an arbitrator.
of the Statute by unilaterally limiting, by means of
discipline, the Union President to 1200 hours of
official time.
It is well settled that before an agency implements a change in
working conditions affecting unit employees it is required to first
provide adequate notice of the proposed change to the employees'
exclusive representative and afford it a meaningful opportunity to
bargain. See General Services Administration, 15 FLRA 22, 24 (1984);
U.S. Customs Service, Region IV, Miami, Florida, 19 FLRA 304 (1985);
U.S. Army Reserve Components Personnel and Administration Center, 19
FLRA 290 (1985). The General Counsel claims that Respondent provided
the Union no notice whatsoever before implementation herein and thereby
violated the Statute.
Neither the testimony nor documentary evidence offered by Respondent
persuades me that sufficient notification was given to the Union prior
to the change on November 22, 1985. The Authority has held that in
order for notice to be statutorily sufficient it must be "specific and
clear enough to provide adequate notice to the Union." Department of the
Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA 575 (1982).
The testimony of John Sergeant did not meet those standards. For the
most part, the conversations related by Sergeant are spread out over a
several month period of time and concerned recordation of time and
whether Laughlin would be allowed to represent non-bargaining unit
employees rather than addressing any specific limitations on Laughlin's
use of time. If indeed Respondent appraised Laughlin of its concern, it
did not register nor based on the memoranda of these meetings should it
reasonably have been expected to do so. Further, these conversations
were apparently preserved by written communications which demonstrated
that Respondent was concerned with recordation and representation of
non-unit employees rather than with the "1200" hour cap. Since more
than 20 meetings occurred during the span of time referred to by
Respondent, I agree with the General Counsel that given Respondent's
propensity to write letters and memoranda established by stipulations in
this case, it is reasonable to assume that if Respondent really had such
an interest about the "1200" hour cap and expressed it to Laughlin, so
as to constitute notice, that at least once, that concern would have
been reduced to writing.
The memoranda submitted as evidence in this case are thus too broad
and general to supply the specific and clear notice required by the
Statute. As already noted, the memoranda basically concerns compliance
with reporting procedures, official time to attend training sessions,
official time to negotiate on behalf of non-bargaining unit employees
and are consistently silent on Laughlin's use of official time beyond
the "1200" hour cap. Accordingly, it is found that Respondent, through
the above memoranda and meetings, did not provide the Union notice of
its desire to change the "1200" hour cap on Laughlin's official time.
Moreover, the advice given on November 22, 1985 that the change was to
occur on November 25, 1985 does not qualify in this matter as requisite
notice needed to allow the Union time and the opportunity to engage in
meaningful bargaining. U.S. Department of Agriculture, Plant Protection
and Quarantine, Animal and Plant Health Inspection Service, 17 FLRA 281
(1985); U.S Government Printing Office, 13 FLRA 203 (1983).
Accordingly, it is found that Respondent failed to provide notice prior
to its change of the established past practice in this case.
Based on all of the foregoing, it is found and concluded that
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally implementing a change in conditions of employment by
requiring the Union President who had used 100 per cent official time,
to limit that use of time to 1200 hours annually without providing the
Union with adequate notice and an opportunity to bargain concerning the
change and its impact and implementation.
Having found that Respondent committed certain violations of the
Statute, it is necessary to recommend a remedy which will effectuate the
purposes and policies of the Statute. In addition to a status quo ante
remedy, a make whole remedy including backpay is deemed appropriate
here. There is no dispute that Laughlin, the Union President was placed
on AWOL, suspended and finally removed as a direct result of
Respondent's unilateral change in an established past practice. The
November 22, 1985 memorandum clearly connected the subsequent discipline
to the change. In addition, at the March 4, 1986 meeting, Sergeant
established a connection between the AWOL and subsequent discipline to
Laughlin's continued use of 100 per cent official time, when he
attempted to force a settlement on Laughlin. In an earlier cited case,
Veterans Administration, Veterans Administration Medical Center,
Muskogee, Oklahoma, supra, the agency had unilaterally changed a past
practice of allowing union officials to use official time without first
telling their supervisors. As a result of the change, two union
officers who had failed to comply with the new procedure had been placed
on AWOL. There the Authority required that the remedy include backpay
for the time spent on AWOL stating as follows:
With regard to the Judge's recommended remedy to make whole
employees Hawpe and White for the periods of time on May 15 and
September 2, 1980, respectively, when they were placed on AWOL
status while performing representational duties, the Authority has
held such a remedy appropriate under the Back Pay Act, 5 U.S.C.
Section 5596, when "but for" an unjustified or unwarranted
personnel action the employee would not have suffered a loss or
reduction in pay, allowances, or differentials. Department of the
Air Force, Air Force Systems Command, Electronic Systems Division,
14 FLRA 390 (1984). It is clear that under the practice which
existed before the Respondent unilaterally changed the method of
allowing Union officers to use official time while performing
representational duties, Hawpe and White advised the Respondent
when they were going to utilize official time, and the request was
never challenged. The unilateral change in that established
practice required Hawpe and White to request official time and the
Respondent to approve or deny the request. When such requests
were rejected and Hawpe and White attempted to utilize official
time nonetheless, they were placed on AWOL status and thereby
suffered a reduction in pay. Thus, "but for" the Respondent's
unlawful unilateral change in the established practice concerning
use of official time for representational duties performed by
employees on behalf of the exclusive representative, such loss or
reduction in pay would not have been suffered, and the Authority
therefore adopts the Judge's recommended make whole remedy.
Likewise, the "but for" test is satisfied in the instant case and
Laughlin should be made whole for Respondent's decision to disregard its
statutory bargaining obligation. /2/ See also Department of the
Treasury, U.S. Customs Service and U.S. Customs Service, Region IX,
Chicago, Illinois, 25 FLRA 161 (1987).
Accordingly, it is recommended that the Authority adopt the
following: /3/
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Army, Headquarters,
Presidio of San Francisco, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in an established practice
with respect to the use of 100 per cent official time by the Union
President engaged in representational duties on behalf of the
exclusive representative without providing notice to, and upon
request bargaining with, American Federation of Government
Employees, Local 1457, AFL-CIO, the exclusive representative of
its employees, or any other exclusive representative.
(b) Removing employees Lawrence L. Laughlin as a result of
unilaterally instituted changes with respect to the use of 100 per
cent official time to engage in representational duties by the
Union President.
(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 Statute:
(a) Upon request, meet and negotiate with the American
Federation of Government Employees, Local 1457, AFL-CIO, the
exclusive representative of its employees, with regard to any
changes in established practices concerning the use of 100 per
cent official time by the Union President to engage in
representational duties on behalf of the exclusive representative.
(b) Reinstate and make whole employee Lawrence L. Laughlin in
accordance with the Back Pay Act, 5 U.S.C. Section 5596 (Supp. III
1979) for any loss of pay or other benefits he suffered on or
about November 22, 1985 to date when he was placed on AWOL status
and subsequently dismissed while performing representational
duties on behalf of the exclusive representative, American
Federation of Government Employees, Local 1457, AFL-CIO.
(c) Post at its Department of the Army Headquarters, Presidio
of San Francisco facility, 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, or a
designee, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin
boards and other places where 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, 901 Market Street, Suite 220, San
Francisco, CA 94103, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
/s/ ELI NASH, JR.
Administrative Law Judge
Dated: May 28, 1987
Washington, D.C.
(1) The General Counsel's Motion to Strike Portions of Respondent's
Brief, dated July 29, 1986, is denied.
(2) In addition to the discussions above, the unrebutted testimony of
Laughlin proves that following the AWOL, he continued to work full-time
for the Union, with no pay, until, after his removal, he was forced to
take an occasional odd-job to feed his family.
(3) The General Counsel's uncontested motion to correct transcript is
granted and attached.
WE WILL NOT unilaterally institute changes in an established practice
with respect to the use of 100 per cent official time by the Union
President engaged in representational duties on behalf of the exclusive
representative without providing notice to, and upon request bargaining
with, American Federation of Government Employees, Local 1457, AFL-CIO,
the exclusive representative of our employees, or any other exclusive
representative.
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 Statute.
WE WILL NOT remove employee Lawrence L. Laughlin as a result of
unilaterally instituted changes with respect to the use of 100 per cent
official time to engage in representational duties by the Union
President.
WE WILL, upon request, meet and negotiate with the American
Federation of Government Employees, Local 1457, AFL-CIO, the exclusive
representative of our employees, with regard to any changes in
established practices concerning the use of 100 per cent official time
by the Union President to engage in representational duties on behalf of
the exclusive representative, and the implementation of any such
changes, at the Presidio of San Francisco facility.
WE WILL reinstate and make whole employee Lawrence L. Laughlin in
accordance with the Back Pay Act, 5 U.S.C. Section 5596 (Supp. III 1979)
for any loss of pay or other benefits he suffered on or about November
22, 1985 to date when he was placed on AWOL status and subsequently
dismissed while performing representational duties on behalf of the
exclusive representative, American Federation of Government Employees,
Local 1457, AFL-CIO.
. . . (Agency or Activity
Dated: . . . By: . . . (Signature)
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) 995-5000.
30 FLRA NO. 11
AFGE, Local 2635 and Naval Communications Unit, Cutler, East Machias,
Maine, Case No. 0-NG-1404, (Decided November 11, 1987)
7105(a)(2)(D) and (E)
7106(a)(2)(A), (B) and (C)
7106(b)(3)
7117(a)(2)
APPROPRIATE ARRANGEMENTS
POSITION, FILLING OF
APPOINTMENTS, SELECTION FOR
POSITIONS, FILLING OF
VACANCIES
COMPELLING NEED
MATTERS ALLEGED BARRED BY AN AGENCY REGULATION
FACILITIES, EQUIPMENT AND SERVICES
TELEPHONE, USE OF
FACILITIES, EQUIPMENT AND SERVICES
TELEPHONE
LIMITED TO OFFICIAL BUSINESS
LABOR-MANAGEMENT RELATIONS ACTIVITIES BY UNIONS
POSITION ASSIGNMENTS OR FILLING OF
VACANCIES
TRAINING
ASSIGNMENT OF TRAINING
TRAINING NECESSARY TO PERFORM NEW DUTIES
Provision 1 -- The provision is intended to assist employees whose
positions are eliminated. The first sentence generally provides
protection by requiring management to make reasonable effort to reassign
the employees, the record clearly indicating that it applies only where
management has decided to fill the vacant positions. The second
sentence requires the Agency to make a reasonable effort to train
employees who have the aptitude for vacant positions and to reassign
them to those positions when they are trained, which applies when the
Agency has determined that the adversely affected employee is to fill
the position but needs additional qualifications; the Agency determines
whether training is needed and what type of training is to be supplied.
The Authority determined that the provision obligates management to
attempt to fill vacant positions from a particular source, namely
reassignment of the affected employees, thereby directly interfering
with management's right to select from any appropriate source under
section 7106(a)(2)(C). The Authority found however that the proposal
was a negotiable appropriate arrangement under section 7106(b)(3),
noting that it is clearly intended to mitigate against the adverse
effects of the exercise of management rights and does not excessively
interfere with management's rights under section 7106(a)(2)(C)
Provision 2 -- The provision provides that official telephone
(autovon) shall be available to the Union only in the pursuit of
grievance procedures. The Agency contended that it conflicted with a
DOD Directive for which there was a compelling need. The Authority
concluded that the Agency had not demonstrated that the prohibition
against the use of Autovon by labor organizations as set forth in the
Directive relied upon is essential, as opposed to helpful or desirable,
to accomplish the mission of the Agency. Accordingly, the Authority
found that the Agency had failed to demonstrate that a compelling need
exists for the Directive to bar negotiations of the provision.
Case No. 0-NG-1404
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2635
Union
NAVAL COMMUNICATIONS UNIT CUTLER, EAST MACHIAS, MAINE
Agency
This petition for review comes before the Authority pursuant to
section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management
Relations Statute (the Statute) and raises issues concerning the
negotiability of two provisions of a negotiated agreement disapproved by
the Agency head under section 7114(c) of the Statute. Provision 1 is
found to be a negotiable appropriate arrangement. We find that there is
no compelling need for the Agency regulation alleged to bar negotiations
on Provision 2, and that provision is therefore within the duty to
bargain.
It is agreed that the Employer will make a reasonable effort to
reassign employees whose positions are eliminated. It is agreed
that the Employer will make a reasonable effort to train employees
where necessary for reassignment, when positions are eliminated
because of automation or adoption of labor-saving devices,
provided the employee has the necessary aptitude as determined by
the Employer.
The Agency contends that the first sentence of Provision 1 is
inconsistent with the Federal Personnel Manual (FPM) chapter 335,
subchapter 1-4, Requirement 4, a Government-wide regulation which
requires that agencies retain the authority to select candidates for
positions from any appropriate source. In particular, the Agency argues
that, under the provision, if vacant positions are available, management
must reassign employees whose jobs are being eliminated to those
positions. The Agency also contends that the second sentence of this
provision could, under some circumstances, require it to provide
training for employees, and therefore it is inconsistent with
management's right to assign work under section 7106(a)(2)(B). The
Agency contends, in short, that the implication of the provision is that
if there were a position available, management would be obligated to
reassign the employee to the vacancy and that those employees who had
the necessary aptitude would have to be trained and reassigned to a
position. Finally, the Agency asserts that the second sentence is not
an appropriate arrangement for adversely affected employees.
The Union states that the purpose of this provision is to negotiate
reasonable arrangements for unit employees who are adversely affected by
the elimination of their positions. The Union disagrees with the
position of the Agency that the first sentence of the provision is
inconsistent with FPM chapter 335, subchapter 1-4, Requirement 4. The
Union further argues that this provision has no absolute mandate for
selection. The Union states that the second sentence of Provision 1
does not specify mandatory training or what type of training is to be
given.
By its terms, Provision 1 is intended to assist employees whose
positions are eliminated. The first sentence generally provides
protection to employees by requiring management to make a reasonable
effort to reassign those employees whose positions are eliminated. The
record in this case clearly indicates that Provision 1 applies only
where management has decided to fill the vacant positions. Union
Response to Agency Statement of Position at 6-7. The second sentence of
Provision 1 provides further protection to employees by requiring the
Agency to make a reasonable effort to train employees who have the
aptitude for vacant positions and to reassign them to those positions
when they are trained. This portion of Provision 1 applies when the
Agency has determined that the adversely affected employee is to fill
the position but needs additional qualifications; the Agency determines
whether training is needed and what type of training is to be supplied.
Union Response to Agency Statement of Position at 8.
Thus, by its terms, Provision 1 obligates management to attempt to
fill vacant positions from a particular source, namely, reassignment of
the affected employees to those positions, and to attempt to provide
training should any of the selected affected employees need training to
fill the vacant position. The effect of the provision, therefore, is to
obligate management to attempt to fill vacant positions from a
particular source, namely, reassignment of the affected employees to
those positions. By providing for filling positions by reassignment,
Provision 1 directly interferes with management's right to select from
any appropriate source under section 7106(a)(2)(C) of the Statute. See
Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA
878 (1985). See also American Federation of Government Employees,
AFL-CIO, National Immigration and Naturalization Service Council and
U.S. Immigration and Naturalization Service, 27 FLRA 467 (1987)
(Provision 6), in which we found that a provision which required
management to make reasonable efforts to reassign an employee directly
interfered with management's rights under section 7106(a)(2)(A) of the
Statute.
Provision 1 therefore is outside the duty to bargain unless it
constitutes an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute. Provision 1 is clearly intended to mitigate
against the adverse effects of the exercise of management rights, in
this case, elimination of positions through the introduction of
automation or other labor-saving devices. We therefore find that the
provision constitutes a proposed "arrangement" for employees adversely
affected by the exercise of management rights within the meaning of
section 7106(b)(3). See National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).
The remaining issue is whether the provision is an "appropriate"
arrangement under the Statute. The Authority has considered a number of
proposals which provide for management to fill vacant positions with
employees who have lost their jobs, or who are threatened with the loss
of their jobs, due to a reduction-in-force (RIF). Where those proposals
took effect only after management had decided to fill the vacant
positions and required management to fill those vacancies only with
qualified employees, the Authority has found the proposals to constitute
appropriate arrangements under section 7106(b)(3). The Authority has
concluded that, on balance, the limitations placed by such proposals on
the source from which management will select to fill vacant positions do
not excessively interfere with management's right under section
7106(a)(2)(C). See National Treasury Employees Union and Department of
Health and Human Services, Region X, 25 FLRA 1041 (1987) (Proposal 5);
International Plate Printers, Die Stampers and Engravers Union of North
America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision
32); and National Association of Government Employees, Local R14-87 and
the Adjutant General of Kansas, 21 FLRA 313 (1986). As stated above,
the record in this case clearly indicates that Provision 1 applies only
where management has decided to fill the vacant positions. Compare
American Federation of Government Employees; Local No. 12 adn U.S.
Department of Labor, 25 FLRA 987 (1987) (Proposal 1).
We construe Provision 1 as not requiring management to fill positions
with unqualified employees. Interpreted in this manner, Provision 1 has
the same effect as the proposals discussed above which provide for
management, where it decides to fill vacant positions, to select from
among qualified employees who have lost their jobs or who are threatened
with the loss of their jobs. Like the proposals in those cases, by
requiring management to attempt to fill vacant positions which it
decides to fill through the reassignment of qualified employees whose
positions have been eliminated, the first sentence of Provision 1 does
not excessively interfere with management's rights under section
7106(a)(2)(C) and is an appropriate arrangement under section
7106(b)(3).
The Agency argues that Provision 1 is, in all material respects, the
same as that found nonnegotiable by the Authority in National Federation
of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas
City District, Kansas City, Missouri, 21 FLRA 630 (1986). Agency
Statement of Position at 2. In that decision, the Authority concluded
that the proposal conflicted with FPM chapter 335, subchapter 1-4, a
Government-wide regulation, and therefore was nonnegotiable. The
Authority recently has stated that it will no longer follow the
rationale in that case. See American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA
No. 40, slip op. at 10 n.1 (1987) (separate opinions by each member of
the Authority). Thus, regardless of whether the provision is intended
to take effect outside the context of a RIF or to mitigate the effects
of a RIF, FPM chapter 335, subchapter 1-4, Requirement 4 does not
constitute a bar to the negotiation of the first sentence of the
provision. See id.; National Federation of Federal Employees, Local
1450 and U.S. Department of Housing and Urban Development, 23 FLRA 3
(1986).
Moreover, we find that the second sentence of Provision 1 is to the
same effect as International Plate Printers, Die Stampers and Engravers
Union of North America, AFL-CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 140
(1987) (Provision 32). That provision specifically preserved
management's discretion to determine whether employees would be trained,
the extent and type of training, the numbers and types of employees to
be trained given available funding and training authority, and the
methods and means by which the training would be accomplished. Here,
although the precise wording of the provision does not state the
safeguards as set forth in Provision 32 in Bureau of Engraving and
Printing, the record clearly indicates that the intent of the provision
is to preserve management's discretion as in Bureau of Engraving and
Printing and we so construe the provision. Accordingly, for the reasons
more fully set forth in Bureau of Engraving and Printing, we find that
the second sentence of Provision 1 constitutes a negotiable appropriate
arrangement.
For the above stated reasons, we find that Provision 1 constitutes a
negotiable appropriate arrangement under section 7106(b)(3).
Official telephone (Autovon) shall be available to the Union
only in the pursuit of grievance procedures.
The Agency contends that the provision conflicts with Department of
Defense (DoD) Directive 4640.9, paragraph F.2.b. for which a compelling
need exists under section 7117 (a)(2) of the Statute and section 2424.11
of the Authority's Rules and Regulations. Specifically, the Agency
argues that the portion of the regulation which precludes labor union
access to the AUTOVON network is essential to the accomplishment of the
mission of the Agency.
The Union contends that the cited DoD Directive does not meet the
compelling need criteria. The Union argues that the proposal does not
conflict with the Agency's regulation. The Union further contends that
even assuming that the proposal conflicts with the Agency's regulation,
the Agency has not shown that the regulation is "essential" within the
meaning of the Authority's compelling need regulations so as to preclude
bargaining over the provision. The Union asserts that it has had access
for many years under the conditions described in the provision without
measurably eroding the Agency's ability to accomplish its mission.
The question before us in this case is whether a compelling need
exists for DoD Directive 4640.9 to bar negotiation on Provision 2. The
provision in dispute provides that AUTOVON shall be available to the
Union only in the pursuit of grievance procedures. The Authority has
consistently held that union access to Government telephones for
official labor relations business is negotiable. In American Federation
of Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1979), aff'd as to
other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140
(D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
(1982), for example, the Authority found that union access to the
nationwide Air Force telephone system is a matter affecting the
conditions of employment of unit employees and does not concern the
technology of performing work so as to be negotiable only at the
discretion of the agency. Thus, the Authority found the proposal in
that case to be within the duty to bargain. See also National Treasury
Employees Union and Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 26 FLRA 497 (1987); and National Federation of
Federal Employees and General Services Administration, 24 FLRA 430
(1986). However, those decisions did not address the issue of
compelling need.
The DoD Directive provides for exclusive access to the AUTOVON
network by operational/military users, although the directive does not
define an "operational user." The directive indicates that a waiver may
be granted on a case-by-case basis to those who are not
operational/military users based on criteria provided in the directive.
However, the directive specifically states that requests from labor
unions do not meet the stated criteria. DoD Directive 4640.9, paragraph
F.2.b. See Appendix A for complete text.
The Agency asserts that a compelling need exists for DoD Directive
4640.9 under section 2424.11(a) of the Authority's regulations because
it is essential to the accomplishment of the mission or the execution of
functions of the agency in a manner which is consistent with the
requirements of an effective and efficient government. Agency Statement
of Position at 8. However, the Agency has not demonstrated that the
prohibition against the use of AUTOVON by labor organizations as set
forth in DoD Directive 4640.9 is essential, as opposed to helpful or
desirable, to the accomplishment of the mission of the Agency. The
Agency states that prohibiting access to AUTOVON by 100 different labor
organizations in 1750 bargaining units would lessen the burden on the
system. However, the Agency provides no evidence as to whether any of
the labor organizations actually use AUTOVON, as compared to local
telephone service. Moreover, the Agency provides no evidence relating
to the amount of AUTOVON use, if any, by the Union at the activity. For
this reason, we find that the Agency has failed to demonstrate that a
compelling need exists for DoD Directive 4640.9 to bar negotiation on
Provision 2. See Department of the Air Force, Flight Test Center,
Edwards Air Force Base, California and Interdepartmental Local 3854,
American Federation of Government Employees, AFL-CIO, 21 FLRA 445 (1986)
(the agency failed to establish that an interest arbitration award
providing for union access to the AUTOVON system was contrary to section
7117(a)(2) of the Statute).
The Agency must rescind its disapproval of Provisions 1 and 2 which
were bargained on and agreed to by the parties at the local level. /*/
Issued, Washington, D.C., November 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In deciding that Provisions 1 and 2 are within the Agency's duty
to bargain , we make no judgment as to their merits.
DoD Directive 4640.9 states at paragraph F.2., in pertinent part:
AUTOVON access by all others who clearly are not operational/military
users must be determined on a case-by-case basis and in accordance with
reference (a) (JCS Memorandum of Policy 151). Waivers are looked upon
with disfavor, unless an exceptional circumstance is found.
a. Circumstances that may warrant the granting of a waiver generally
fall into two categories: (1) critical emergency requirements of
certain civil agencies concerned with National Security, and (2)
requirements of non-military DoD-connected agencies that are unable to
enter into a commercial system. In all cases, the service is provided
on a reimburseable basis in accordance with DoD cost accounting and
reimbursement policies in DoD 7220.9-M (reference (b)).
b. Examples of requests that do not meet the stated criteria are:
(1) foreign embassy requests for communications with their native
country, and (2) labor union requests for AUTOVON access for local
bargaining units. In each of these cases, commercial communications
facilities are available to the requestor.
30 FLRA NO. 10
VA Medical Center and AFGE Local No. 85 (Moore, Arbitrator), Case No.
0-AR-1425, (Decided November 12, 1987)
7122(a)
ARBITRATION EXCEPTIONS, ARBITRATOR:
ARBITRATOR ERRED BY:
MISINTERPRETING AGENCY REGULATIONS
DISCIPLINE OF EMPLOYEES
REASONS FOR DISCIPLINE, EXAMPLES OF
AWOL
In its exceptions, the Agency contended that when the Arbitrator
found that the Activity had failed to timely document a AWOL charge and
concluded that there was no justification for the discipline issued, he
had misconstrued Agency regulations. The Authority concluded that the
Agency had failed to establish that the award was deficient on any of
the grounds set forth in the Statute, the exceptions being merely an
attempt to relitigate the merits of the case. The exceptions were
denied.
Case No. 0-AR-1425
VETERANS ADMINISTRATION MEDICAL CENTER
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 85
Union
This matter is before the Authority on an exception to the award of
Arbitrator Preston J. Moore filed by the Veterans Administration (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. For the reasons stated below, the Agency's exception
is denied.
The grievant is a Union officer and an employee in the laundry at the
Veterans Administration Medical Center, Leavenworth, Kansas. On
December 4, 1986, the grievant's supervisor approved official time for
the grievant for several meetings which she was scheduled to attend that
day in her capacity as a Union representative. An afternoon meeting was
cancelled, and the grievant returned to the laundry approximately 30
minutes late. She was charged for being absent without leave (AWOL) and
was disciplined with a written reprimand. The employee grieved the AWOL
charge and the matter was submitted to arbitration.
The issue before the Arbitrator was whether the Activity had just and
sufficient cause to discipline the grievant because of unauthorized
absence from work and whether the reprimand was a reasonable penalty for
her second offense of this nature. Before the Arbitrator, there was
conflicting evidence as to whether the supervisor approving the official
time instructed the employee to return to the laundry immediately after
the meeting. Among other arguments, the Union referred to Medical
Center policy 05-14, Paragraph 3 Procedure D, which indicates that
failure to document the specific details surrounding an AWOL charge will
nullify any subsequent disciplinary action taken as a result of the AWOL
charge. The Arbitrator found that the Activity failed to timely
document the AWOL charge and that, under the circumstances, there was no
justification for the discipline issued. The Arbitrator sustained the
grievance.
As its exception, the Agency contends that the Arbitrator
misconstrued Agency regulations by applying them to a situation for
which they are not intended. The Union did not file an opposition to
the Agency's exceptions.
We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, 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. See, for example, Federal Correctional
Institution, Petersburg, Virginia and American Federation of Government
Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983)
(exceptions, which merely attempt to relitigate the merits of the case
before the Authority and constitute nothing more than disagreement with
the arbitrator's findings of fact, his reasoning and conclusions,
provide no basis for finding the award deficient).
Accordingly, the Agency's exception is denied.
Issued, Washington, D.C., November 12, 9187.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 9
AFGE and SSA, Case No. 3-CO-20003, (Decided November 12, 1987)
7114(a)(1)
7116(b)(1) and (8)
REPRESENTATION OF EMPLOYEE BY UNION
DUTY OF FAIR REPRESENTATION
ATTORNEY FEES ASSESSMENT BASED ON MEMBERSHIP
This case was before the Authority pursuant to a remand from the U.S.
Court of Appeals for the District of Columbia. The Authority had
requested remand in order to address the question of whether it is an
unfair labor practice for the Respondent Union to charge non-union
member employees disparate fees to participate in a civil action law
suit under the Back Pay Act. The Authority stated that the Union's duty
of fair representation extended to the grievance/arbitration procedure
pursuant to its status as exclusive representative, but that the
institution of the law suit was not so integrally related to the pending
grievance as to be part and parcel of those actions. Accordingly, the
Union did not violate its duty of fair representation by bringing the
law suit on behalf of Union members. Accordingly, the unfair labor
practice complaint was dismissed.
Case No. 3-CO-20003
(17 FLRA 446)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Respondent
SOCIAL SECURITY ADMINISTRATION
Charging Party
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit.
The Authority had requested remand of this case in light of National
Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU
II), which the court decided after the Authority's issuance of its
original decision in this matter, American Federation of Government
Employees, AFL-CIO, 17 FLRA 446 (1985). The question before us is
whether it is an unfair labor practice under the Federal Service
Labor-Management Relations Statute (the Statute) for the Respondent to
charge non-union member employees disparate fees to participate in a
civil action law suit under the Back Pay Act. We find that the
Respondent did not commit the unfair labor practices alleged and vacate
the Authority's previous decision in this case.
In a recent Decision and Order in Fort Bragg Association of
Educators, National Education Association, Fort Bragg, North Carolina,
28 FLRA 908 (1987), the Authority reviewed its previous decisions
concerning the scope of a labor organization's duty of fair
representation. The Authority concluded, in agreement with the court in
NTEU II, and in National Treasury Employees Union v. FLRA, 721 F.2d 1402
(D.C. Cir. 1983) (NTEU I), that "Congress adopted for government
employee unions the private sector duty of fair representation." Fort
Bragg, 28 FLRA at 915. The Authority also determined that it will
analyze a union's responsibilities under section 7114(a)(1) of the
Statute in the context of whether the union's representational
activities on behalf of employees are grounded in the union's authority
to act as exclusive representative. Fort Bragg, 28 FLRA at 918.
In the underlying decision in this case, the Administrative Law Judge
found that section 7114(a)(1) of the Statute obliges an exclusive
representative to adhere to a standard of fair representation only in
those proceedings which are in the sole control of the exclusive
representative by virtue of its certification. The Judge concluded that
the Statute does not impose such obligations in those proceedings which
are available to employees in general, and are supplementary to, but not
a substitute for, proceedings which are the sole prerogative of the
exclusive representative. American Federation of Government Employees,
17 FLRA at 459. Consistent with the Authority's decision in Fort Bragg,
we conclude, in agreement with the Judge, that the Respondent's action
in charging non-union member employees disparate fees to participate in
a civil action law suit under the Back Pay Act did not violate section
7116(b)(1) and (8) of the Statute.
In this case, a question arose regarding whether the Social Security
Administration (the Agency) had been paying the appropriate night
differential to Baltimore, Maryland, bargaining unit employees
performing electronic data processing tasks in an overtime status.
After discovering the alleged underpayment, several bargaining unit
employees filed grievances under the negotiated grievance procedure of
the collective bargaining agreement then in effect. The Respondent and
the Ageney met and discussed the mechanics for processing the
grievances. They agreed to seek a ruling from the Comptroller General
on the overtime issue. They also established a task force to review the
background records and claims for backpay from the numerous grievants.
The Respondent's President became dissatisfied with the task force's
progress in handling the many grievances. To spur the Agency to process
the grievances more expeditiously, the Respondent engaged an attorney to
file a civil suit to obtain the backpay. Consent forms were circulated
among employees, asking whether they wished to join in the litigation.
One of the Respondent's official publications also published a consent
form for participation in the suit, indicating a fee of 5 percent of any
recovery for union members, and a 10 percent fee for non-union members.
A civil action suit against the Agency seeking payment of the employees'
night differential pay claims was filed in the summer of 1981.
There was no dispute as to the liability of the Agency for the
overtime payments. The only question remaining was the calculation of
the amounts owed to the individual grievants. The employees who grieved
their overtime payment would not have received any different amount of
backpay based upon their participation in the civil action. Although
only the Respondent could invoke arbitration on behalf of the employees
under the existing collective bargaining agreement, there was no need
for any of the grievances to proceed to arbitration, unless there was a
disagreement over the computation of the overtime. There is no mention
in the record of the Respondent failing to invoke arbitration. The
Respondent did not intend the civil action to replace or substitute for
the grievance/arbitration mechanism of the collective bargaining
agreement. Rather, the civil action was merely a means to spur the
Agency to more expeditious processing of the grievances.
The Judge found that the civil action was a route available to all
employees, and not within the sole control of the Respondent. The Judge
also found that the civil action was used as a tool to expedite the
processing of the grievances. Under these circumstances, the Judge
found that the civil action suit constituted a benefit of Union
membership as opposed to a right flowing from the Union's status as
exclusive representative. The Judge concluded that the Respondent did
not deny fair representation to the non-Union members by permitting the
attorney to charge different fees to the participants in the suit
depending on their membership in 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. The rulings are affirmed. Upon consideration of the Judge's
Decision and the entire record, and consistent with the Authority's
decision in Fort Bragg and the court's decision in NTEU II, we find that
the Judge properly analyzed the case in the context of whether the
Union's representational activities on behalf of the employees were
grounded in the Union's authority to act as exclusive representative.
The Union's duty of fair representation in this case extended to the
grievance/arbitration procedure pursuant to its status as exclusive
representative. We find, in agreement with the Judge, that the
institution of the law suit was not so integrally related to the pending
grievances as to be part and parcel of those actions; that is, the law
suit was not a substitute for arbitration in the circumstances of this
case. Rather, the law suit was, as found by the Judge, a supplement to
the pending grievance actions, and was not a proceeding that was in the
sole control of the Union by virtue of its certification as the
exclusive representative. We therefore adopt the Judge's findings,
conclusions, and recommendations. Accordingly, we find that the Union
did not violate its duty of fair representation by bringing the law suit
on behalf of Union members, and we will dismiss the complaint.
The complaint in this case is dismissed.
Issued, Washington, D.C., November 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 8
NTEU and IRS, Indianapolis District, Case No. 0-NG-1402, (Decided
November 12, 1987)
7105(a)(2)(D) and (E)
CONDITIONS OF EMPLOYMENT
NON-BARGAINING UNIT EMPLOYEES
HEALTH AND SAFETY
SMOKING
DESIGNATED SMOKING AREAS
The proposal provided that all employees may smoke within the
confines of designated smoking areas and that individuals occupying
designated smoking areas will respect the rights of nonsmokers and will
refrain from smoking at the request of nonsmoking employees or make
other suitable accommodations. The Authority found the proposal
negotiable, rejecting the Agency's contention that it was nonnegotiable
because it would effect nonunit personnel.
Case No. 0-NG-1402
NATIONAL TREASURY EMPLOYEES UNION
Union
INTERNAL REVENUE SERVICE INDIANAPOLIS DISTRICT
Agency
This case is before the Authority because of 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 a single proposal. For the following reasons, we find
the proposal to be negotiable.
All employees may smoke within the confines of designated
smoking areas throughout the District. Individuals occupying
designated smoking areas within the District will respect the
rights of nonsmokers and will refrain from smoking at the request
of nonsmoking employees or make other suitable accommodations.
The Agency recognizes that the Authority has found proposals
concerning smoking to be negotiable even where they would affect nonunit
employees. However, the Agency contends that the proposal in this case
is different in that it would directly prescribe the conduct of
managerial employees. The Agency argues that the impact of the proposal
on nonbargaining unit employees is significant and direct, and that in
fact the proposal primarily will affect nonbargaining unit employees as
most all of the Agency's private offices are occupied by managerial
employees.
The Union contends that the intent of the proposal is to enable
nonsmoking bargaining unit employees to ask individuals occupying
designated smoking areas to refrain from smoking when bargaining unit
employees must be in these areas, thereby protecting the health and
safety of unit employee nonsmokers. Accordingly, the Union asserts that
the primary impact of its proposal is on the nonsmoking unit employees
whom it is seeking to protect.
As the parties noted, we recently decided in National Association of
Government Employees, Local R14-32 and Department of the Army, Fort
Leonard Wood, Missouri, 26 FLRA 593 (1987), that proposals concerning
the implementation of an agency smoking policy were negotiable. We
rejected the Agency's argument in that case that the proposals were
nonnegotiable because they were determinative of the working conditions
of nonbargaining unit employees. We concluded that the proposals
primarily affected nonsmokers rather than nonunit employees. Therefore,
we found that the proposals were not directly determinative of the
conditions of employment of nonunit employees.
We find that the proposal in this case is negotiable on the same
grounds as we found the proposal in Fort Leonard Wood to be negotiable.
While the proposal therein sought to extend the rights of smokers and
the proposal in this case seeks to extend the rights of nonsmokers, we
find that the proposals are similar in that they are not directly
determinative of the rights of nonbargaining unit employees. In that
regard, the present proposal would have an impact on managerial or other
nonbargaining unit employees only when they are having a meeting in
their office attended by nonsmoking bargaining unit employees.
Moreover, we note that the General Services Administration (GSA) smoking
regulations are intended to protect the health and safety of all
employees. While the proposals permit smokers to smoke within their
private offices, the proposals generally preclude smoking in "public"
areas. When employees are summoned to a meeting in a manager's office,
that office loses its privacy for the duration of the meeting. A
proposal seeking to protect the rights of nonsmoking employees who are
required to attend such meetings is both consistent with the GSA
regulations and with our standard, set forth in American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 22 FLRA 478 (1986), petition for review filed sub nom.
American Federation of Government Employees, Local 32 v. FLRA, No.
86-1447 (D.C. Cir. August 11, 1986) (proposals which have only a limited
or indirect effect on nonbargaining unit employees are within the duty
to bargain).
The Agency must bargain, upon request or as otherwise agreed to by
the parties, over the proposal. /*/
Issued, Washington, D.C., November 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding this proposal to be negotiable, we make no judgment as
to its merits.
30 FLRA NO. 7
AFGE, Local 1760 and HHS, SSA, Case No. 0-NG-1181, (Decided November
12, 1987)
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
EXTRAORDINARY CIRCUMSTANCES
NO BASIS FOR GRANTING RECONSIDERATION
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
The matter before the Authority was an Agency filed request for
reconsideration. The Authority stated that the Agency was correct in
noting that the nature of the case was incorrectly set forth in the
decision in that the dispute resulted from the Agency's allegation of
nonnegotiability rather than, as stated in the decision, an Agency head
disapproval of a locally negotiated agreement. The request was granted
in this respect and the Decision and Order modified to so reflect. The
Authority however denied the remainder of the Agency's request,
concluding that the arguments constituted disagreement with the merits
of the negotiability determinations and were an attempt to relitigate
the substance of those determinations.
Case No. 0-NG-1181
(28 FLRA No. 26)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 1760
Union
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency
This matter is before the Authority pursuant to the Agency's request
for reconsideration of the Authority's Decision and Order on
Negotiability Issues in 28 FLRA No. 26, dated July 23, 1987. In that
decision, we determined that Provisions 1 through 6 were within the duty
to bargain and that Provision 7 was outside the duty to bargain. The
Agency also requests that we order a stay of our decision in 28 FLRA No.
26 pending our review of the Agency's request for reconsideration. The
Union opposed the Agency's requests. For the reasons discussed below,
we grant in part the Agency's request for reconsideration and deny it in
part.
In its request for reconsideration, the Agency first contends that
the Authority's decision in this case is based on a nonfact and
constitutes an erroneous interpretation of the record evidence. In
support of this contention, the Agency argues that the Union's appeal
resulted from the Agency's allegations of nonnegotiability rather than,
as stated in the decision, an Agency head disapproval of a locally
negotiated agreement.
The Agency is correct in noting that the nature of this case before
the Authority was incorrectly set forth in our decision. Accordingly,
under section 2429.17 of our Regulations, we grant this aspect of the
Agency's request for reconsideration and modify our Decision and Order
as follows: (1) the Statement of the Case is revised to show that the
Union appealed to the Authority from an Agency allegation of
nonnegotiability rather than from an Agency head disapproval of a
locally negotiated agreement; (2) "Provisions" 1 through 6 in the
decision are redesignated as "Proposals" 1 through 6; and (3) the
Union's petition for review as to the second sentence of Proposal 4 and
Proposal 5 is dismissed because the Agency has not alleged that these
proposals are inconsistent with law, rule or regulation and thus there
is no negotiability dispute concerning these proposals as to which we
can accept jurisdiction. Should the Agency subsequently allege that the
proposals are inconsistent with law, rule or regulation, the Union is
not foreclosed by our decision from petitioning the Authority for review
of the Agency's allegations. See American Federation of Government
Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768
(1987).
As its second contention, the Agency argues that the Authority's
decision is based on record evidence which was not submitted in
accordance with the Authority's Regulations. In support of this
contention, the Agency first notes that although the decision states
that the Union's petition sought review of two additional provisions,
the petition which was served on the Agency did not contain those
additional proposals. We correct the record to reflect that those two
proposals were contained in the Union's request for an allegation of
nonnegotiability from the Agency, but were not part of the Union's
petition for review.
In connection with its second contention, the Agency also references
the Authority's ruling as to the timeliness of the Union's petition for
review. Our decision as to the timeliness of the petition was based on
the determination that the evidence submitted by both parties on that
issue was conflicting, and that in those circumstances the date of the
Agency's allegation of nonnegotiability was used as the date of service
of the Union's petition for review. See section 2424.3 and sections
2429.21 and 2429.22 of the Authority's Rules and Regulations. Based on
that date, the petition for review was timely filed.
As to the Agency's remaining contentions, we find that the Agency has
not established "extraordinary circumstances" within the meaning of
section 2429.17 of our Regulations necessary to warrant granting
reconsideration. Rather, the arguments presented by the Agency simply
constitute disagreement with the merits of the negotiability
determinations made in the decision and are an attempt to relitigate the
substance of those determinations. Accordingly, the remaining portion
of the Agency's request for reconsideration is denied.
The substantive negotiability determinations made in the decision are
unaffected by the granting in part of the Agency's request for
reconsideration. The Order in this case is modified to read as follows:
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposals 1-3, the first sentence of
Proposal 4 and Proposal 6. The petition for review as to the
second sentence of Proposal 4, Proposal 5 and Proposal 7 is
dismissed.
The Agency's motion for a stay is dismissed as moot.
Issued, Washington, D.C., November 12, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 6
Dep't of Agriculture and AFGE, Local 2831, Case No. 2-CA-70099,
(Decided November 10, 1987)
7116(a)(1) and (5)
AGENCY ULP (ALLEGED) 7116(a)(5)
OFFICIAL TIME
BARGAINING
LEVEL OF BARGAINING
MINISTERIAL ACTIONS OF A SUBORDINATE ENTITY
OFFICIAL TIME
TRAVEL AND PER DIEM
The complaint alleged that the Respondent Agency had violated section
7116(a)(1) and (5) of the Statute by preventing through a Personnel
Letter, its subordinate organization from engaging in collective
bargaining over the Union's contract proposal concerning travel and per
diem expenses associated with labor relations activities. The
Authority, relying on its decision in U.S. Customs Service, 21 FLRA 6
(1986), found that the Respondent violated the Statute.
Case No. 2-CA-70099
UNITED STATES DEPARTMENT OF AGRICULTURE
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2831
Charging Party
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations based upon a stipulation entered into by the Respondent, the
Charging Party (the Union) and the General Counsel. The General Counsel
and the Respondent have filed briefs with the Authority. /*/
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by preventing through its Personnel Letter No. 711-10 (May 16,
1984), its subordinate organization Farmers Home Administration, New
Jersey (FmHA, New Jersey) from engaging in collective bargaining over
the Union's contract proposal concerning travel and per diem expenses
associated with labor relations activities. As a result, the Respondent
interfered in the collective bargaining relationship between FmHA, New
Jersey and the Union.
Since April 27, 1983, the Union and FmHA, New Jersey have been
parties to a collective bargaining agreement with a term of 3 years with
the agreement subsequently effective pending renegotiations. Article 2,
Section 2.5 of the agreement provides as follows:
2.5 MILEAGE AND PER DIEM: When necessary, the Employer will
pay the mileage and per diem of the Union officials who are
engaged in representation activities. The Union agrees its
stewards will attempt to resolve grievances by telephone before
traveling to the worksite of the grieving employee. A steward
will represent only the employees in the specific area in which
the steward is a designated representative. Mileage and per diem
will be kept to a minimum and will be paid only to Union
officials.
In January 1986, the Union requested renegotiation of the agreement.
During the course of negotiations, the Union submitted a contract
proposal for Article 2, Section 2.5 requiring payment by FmHA, New
Jersey of travel and per diem expenses for Union representatives engaged
in labor-management activities. The proposal required payment of travel
and per diem expenses by deleting the phrase "when necessary" from the
existing contract language.
On October 27, 1986, based on the Respondent's Personnel Letter
711-10, FmHA, New Jersey declared the Union's proposal regarding travel
and per diem to be nonnegotiable. Personnel Letter 711-10 pertinently
provided:
The following procedures are established regarding the payment
of travel and per diem expenses to employee union representatives
when official time is granted for negotiations and/or contract
administration activities under 5 USC 7131(a) and (d).
(2) Management negotiators cannot negotiate any agreement with
any union which would authorize payment of travel and per diem to
union negotiators and/or representatives. It is the Department's
position that the issue is nonnegotiable.
In their stipulation of facts, the parties agree that the Union's
proposal on travel and per diem expenses is substantially similar to a
proposal found negotiable by the Authority in National Treasury
Employees Union and Department of Treasury, U.S. Customs Service, 21
FLRA 6 (1986), petition for review filed sub nom. Department of the
Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. March 27,
1986), which was decided and issued on January 31, 1986. In their
stipulation of facts, the parties further agree that through its
personnel letter, the Respondent prevented its subordinate organization
FmHA, New Jersey from engaging in collective bargaining over the Union's
contract proposal concerning travel and per diem expenses.
The Respondent acknowledges that the language of the Union's proposal
is identical to the language of the proposal the Authority held
negotiable in Customs Service. However, the Respondent contends that in
contrast to Customs Service, there is no statement of intent and no
other evidence in the record that indicates that the proposal requires
the payment of travel and per diem expenses to comport with the Travel
Expense Act and Federal Travel Regulations. Consequently, the proposal
must be construed to require the payment of travel and per diem expenses
regardless of whether such payment comports with the Travel Expense Act
and the Federal Travel Regulations. Accordingly, the Respondent argues
that because it is inconsistent with Federal law and Government-wide
regulation, the proposal must be found outside the duty to bargain.
The General Counsel contends that the Authority's decision in Customs
Service is dispositive of the issues in this case. The General Counsel
maintains that the Union sought to negotiate the travel and per diem
proposal consistent with that decision. Consequently, the General
Counsel argues that the Respondent violated section 7116(a)(1) and (5)
of the Statute by preventing its subordinate organization FmHA, New
Jersey from bargaining with the Union over a negotiable proposal and as
a result by interfering in the bargaining relationship between FmHA, New
Jersey and the Union.
We agree with the General Counsel that the decision in Customs
Service is dispositive. Accordingly, we find that the Respondent
violated the Statute as alleged.
It is well established that an agency violates section 7116(a)(1) and
(5) of the Statute when it refuses to bargain over a proposal that is
substantially identical to a proposal the Authority has previously
determined to be negotiable under the Statute. For example, Internal
Revenue Service, 28 FLRA 14 (1987). In the case before us, the parties
have stipulated that the Union's proposal is substantially similar to
the proposal the Authority found negotiable in Customs Service. We
find, contrary to the Respondent's contentions, that in entering into
such a stipulation, the parties agreed that the intended meaning as well
as the literal language of the proposal submitted by the Union are
substantially similar to the intended meaning and literal language of
the proposal found negotiable in Customs Service. We therefore, reject
the Respondent's contention that the Union's proposal is nonnegotiable
because it is inconsistent with Federal law and Government-wide
regulations. Accordingly, we find that the refusal to bargain over the
Union's proposal constituted a violation of section 7116(a)(1) and (5)
of the Statute. See Internal Revenue Service, 28 FLRA 14, 15-16.
Based on the stipulation by the parties, we further find that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
preventing its subordinate organization FmHA, New Jersey from bargaining
over the Union's proposal, and as a result by interfering in the
collective bargaining relationship between FmHA, New Jersey and the
Union. See Department of Health and Human Services, Social Security
Administration, Region VI and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA 26
(1982).
We conclude that the Respondent interfered with its subordinate
organization's collective bargaining relationship with the Union in
violation of section 7116(a)(1) and (5) of the Statute. To remedy this
unfair labor practice, we will order the Respondent to cease and desist
from directing FmHA, New Jersey to declare nonnegotiable proposals made
in the course of negotiations by the Union which are substantially
identical to proposals previously determined to be negotiable by the
Authority. Furthermore, we will direct the Respondent, upon request of
the Union, to permit FmHA, New Jersey to negotiate concerning the
Union's proposal that would require the payment of travel and per diem
expenses of employees engaged in union representation activities.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the United States Department of
Agriculture, shall:
1. Cease and desist from:
(a) Directing the U.S. Department of Agriculture, Farmers Home
Administration, New Jersey, to declare nonnegotiable proposals made in
the course of negotiations by American Federation of Government
Employees, AFL-CIO, Local 2831 which are substantially identical to
proposals previously determined to be negotiable by the Federal Labor
Relations Authority.
(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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request by the American Federation of Government Employees,
AFL-CIO, Local 2831, permit Farmers Home Administration, New Jersey, to
negotiate concerning Local 2831's proposal that would require Farmers
Home Administration, New Jersey, to pay the travel and per diem expenses
of employee engaged in union representation activities.
(b) Post at its Farmers Home Administration, New Jersey facility
where bargaining-unit employees represented by the American Federation
of Government Employees, AFL-CIO, Local 2831 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 of Personnel, U.S. Department of Agriculture, 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, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) The General Counsel has moved to strike certain portions of the
Respondent's brief as exceeding the facts stipulated by the parties.
The Respondent in response has moved to strike certain portions of the
General Counsel's motion as referring to facts not contained in the
stipulation. We deny the motions. In stipulation cases we consider
only the facts contained in the stipulation.
WE WILL NOT direct the U.S. Department of Agriculture, Farmers Home
Administration, New Jersey, to declare nonnegotiable any proposals made
in the course of negotiations by the American Federation of Government
Employees, AFL-CIO, Local 2831 which are substantially identical to
proposals previously determined to be negotiable by the Federal Labor
Relations Authority.
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 of the American Federation of Government
Employees, AFL-CIO, Local 2831, permit Farmers Home Administration, New
Jersey, to negotiate regarding the proposal providing for the payment of
the travel and per diem expenses of employees engaged in union
representation activities.
. . . (Agency)
Dated:
By: . . . (Signature)
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 of the Federal Labor Relations Authority, Region II, whose
address is: 26 Federal Plaza, Room 3700, New York, New York 10278 and
whose telephone number is: (212) 264-4934.
30 FLRA NO. 5
Oklahoma Air Logistics Center, Tinker Air Force Base, California and
AFGE Local 916, Oklahoma City, Oklahoma (Carter, Arbitrator), Case No.
0-AR-1419, (Decided November 10, 1987)
7122(a)
ARBITRATION EXCEPTIONS, AWARD:
CONTRACT, AWARD CONTRARY TO
DISCIPLINE EMPLOYEES
SUSPEND EMPLOYEES
The Authority denied the Union's exceptions, concluding that they
failed to establish that the award, which sustained a 1-day suspension,
was deficient on any of the grounds set forth in section 7122(a) of the
Statute. In reaching its decision, the Authority noted that exceptions
which attempt to relitigate the merits of the case and the fact that the
arbitrator conducted the hearing in a manner that a party finds
objectionable do not provide a basis for finding an award deficient.
Case No. 0-AR-1419
OKLAHOMA AIR LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, OKLAHOMA
CITY, OKLAHOMA
Union
This matter is before the Authority on exceptions to the award of
Arbitrator A. J. Carter 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. We deny the
exceptions.
The parties stipulated and submitted to arbitration the issue of
whether a 1-day suspension of the grievant for failure to properly
request leave was in accordance with the parties' collective bargaining
agreement. On threshold issues, the Arbitrator ruled that the Agency
was required to make available all witnesses requested by the Union
while noting that this ruling was limited to this case. The Arbitrator
rejected the Union's objection to management exhibits offered to support
its position that the penalty imposed was consistent with prior cases of
a similar nature. On the merits, the Arbitrator denied the grievance,
finding that the suspension was in accordance with the agreement.
In its exceptions the Union contends that the award is contrary to
the collective bargaining agreement and Air Force regulations on
discipline, merit system principles, and sick leave. The Union also
contends that the Arbitrator made numerous incorrect determinations;
that the discipline was never properly supported; that contrary to the
Arbitrator's ruling, the Activity did not make available all Union
witnesses; and that the Arbitrator erred by admitting the exhibits
objected to by the Union.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute: specifically, 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. See, for example, Federal Correctional
Instutution, Petersburg, Virginia and American Federation of Government
Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983)
(Exceptions which attempted to relitigate the merits of the case before
the Authority provided no basis for finding the award deficient; the
exceptions constituted nothing more than disagreement with the
arbitrator's findings of fact, reasoning, conclusions, evaluation of the
evidence and testimony, and interpretation and application of the
agreement.); U.S. Department of Health and Human Services, Social
Security Administration and American Federation of Government Employees,
Local No. 547, 24 FLRA 959 (1986) (the fact that the arbitrator
conducted the hearing in a manner that a party finds objectionable does
not provide a basis for finding an award deficient).
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 4
AFGE, Local 2024 and Dep't of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, Case No. 0-NG-1403, (Decided November 10,
1987)
7106(a)(2)(B)
7106(b)(3)
APPROPRIATE ARRANGEMENTS
EXCESSIVE INTERFERENCE TEST
MANAGEMENTS RIGHTS AND DELIBERATIONS, IMPACT ON
HEALTH AND SAFETY
ASSIGN WORK
DUTIES AND WORK TO BE ASSIGNED
PROHIBITION AGAINST ASSIGNMENT
HEALTH AND SAFETY
HANDICAPPED OR TEMPORARILY IMPAIRED EMPLOYEES
LIGHT DUTY STATUS
The proposal at issue requires management to assign "light duty" to
any employee who is unable to perform the regular duties of his or her
position due to illness of injury. The Authority found that the
provision directly interfered with management's right to assign work
under section 7106(a)(2)(B) by limiting the work which can be assigned
to employees, but that it is a negotiable appropriate arrangement under
section 7106(b)(3), concluding that on balance, the protection for the
employees against further job-related injury outweighs the detrimental
impact on management's ability to accomplish its workload.
Case No. 0-NG-1403
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2024
Union
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Agency
The petition for review comes before the Authority because of a
negotiability appeal filed under section 7105(a)(2)(E) of the Federal
Service Labor-Management Statute (the Statute). It raises issues
concerning the negotiability of a single Union proposal. For the
reasons which follow, we find this proposal to be negotiable. /1/
When an employee has been returned to work by the Employer's
medical authority for a temporary, brief period of light duty, the
Employer agrees to assign the type of work to the employee that
will not aggravate his illness or injury when such work is
available which he is qualified to perform. If the Employer is
unable to provide such light duty, the Employer will approve a
period of absence due to illness as recommended by its medical
authority.
The Union contends that the intent of this proposal is to make
reasonable accommodations for temporary incapacity of employees. The
Union also claims it is an "appropriate arrangement" designed to lessen
the likelihood that an employee will lose his/her job as a result of a
temporary incapacity, or to force employees out of work on workers'
compensation.
The Agency contends that the instant proposal is inconsistent with
the Agency's right under section 7106(a)(2)(B) of the Statute to assign
work. Further, the Agency argues that this proposal is not an
"appropriate arrangement" within the meaning of section 7106(b)(3).
This proposal requires management to assign "light duty" to an
employee who is unable to perform the regular duties of his or her
position due to illness or injury. The proposal is to the same effect
as Provision 1 found negotiable in National Federation of Federal
Employees, Local 284 and Department of the Navy, Naval Air Technical
Training Center, Lakehurst, New Jersey, 29 FLRA No. 69 (1987).
Provision 1 in that case provided that when an employee became capable
of performing light duty work, after an on-the-job injury, the agency
would make every reasonable effort to assign light duty work consistent
with the restrictions specified by other agency officials.
We found that Provision 1 directly interfered with management's right
to assign work under section 7106(a)(2)(B) by limiting the work which
can be assigned to employees. Consequently, based on the reasons and
cases cited in Naval Air Technical Training Center, Lakehurst, we find
that Proposal 2 in this case also limits the work which can be assigned
to employees in certain circumstances.
We further found that Provision 1 in Naval Air Technical Training
Center, Lakehurst, was a negotiable appropriate arrangement under
section 7106(b)(3) of the Statute. The language of Provision 1 which
required the Agency "to make every reasonable effort" to make work
assignments which were consistent with the branch clinic's
recommendations did not excessively interfere with management's right to
assign work. On balance, we concluded that the protection afforded
employees against further job-related injury outweighed the detrimental
impact on management's ability to accomplish its work load.
Similarly, we note that, according to the Union, this proposal is
intended to take effect only when an employee suffers "actual adverse
effects" resulting from management's exercise of its right to assign
work. Reply Brief at 3, 6. The Union further contends that the
provision is intended to make reasonable accommodations for temporary
incapacities of employees and to lessen the likelihood that an employee
will lose his/her job as a result of temporary incapacity. We,
therefore, conclude that the provision is intended to be an arrangement
for employees who may be adversely affected by the exercise of
management's right to assign work.
The remaining question is whether the burden imposed on management's
exercise of its right by the proposal is excessive when weighed against
the proposal's benefit to the employees. We conclude that, on balance,
the benefits accruing to employees outweigh the detriment imposed on the
Agency's right to assign work.
The proposal simply requires that, in accordance with the Agency's
medical authority, the Agency assign to the employee "light duty" work
when such work is available and which the employee is qualified to
perform. Once the determination is made by the Agency's medical
authority that an employee should be placed in a "light duty" status, to
require the Agency to make such "light duty" work assignments, when they
are available and the employee is qualified to perform them, does not
excessively interfere with management's right to assign work. The
limitations established by the provision are those recommended by the
Agency's own officials. Moreover, management is not absolutely bound by
those limitations, but is obligated only to make such assignments when
the work is available and the employee is qualified to perform such
work.
On balance, therefore, we conclude that the protection for the
employees against further job-related injury outweighs the detrimental
impact on management's ability to accomplish its workload.
Consequently, we find the provision does not excessively interfere with
management's right to assign work and assign employees and is an
appropriate arrangement within the meaning of section 7106(b)(3).
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain on the proposal. /2/
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Agency withdrew its allegation of nonnegotiability concerning
a second proposal in this case. Thus, this proposal will not be further
addressed.
(2) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.
30 FLRA NO. 3
AFGE, Local 3884 and VA Medical and Regional Office Center, Fargo,
ND, Case No. 0-NG-1388, (Decided November 10, 1987)
7103(a)(14)(c)
7105(a)(2)(E)
7106(a)(2)(A)
7106(b)(2) and (3)
DISCIPLINE EMPLOYEES
NOTICE
LIMITATIONS ON AGENCY
ABSOLUTE PROHIBITION
INFORMATION, TYPES OF INFORMATION REQUESTED LEAVE
LEAVE
SICK LEAVE AND SICK PAY
ABUSE OF SICK LEAVE
NEGOTIABILITY PROCEDURE
PROPOSAL LANGUAGE OR FORMAT
SPECIFICITY
PROCEDURE, FORUMS
FACTUAL ISSUES
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING
DISCIPLINE
UNITED STATES CODE
5 U.S.C. 7503(a)
38 U.S.C. 410)
The case concerns the negotiability of two Union proposals which
apply to nurses who are employed with the Agency's Department of
Medicine and Surgery (DM&S). The Authority rejected the Agency's
contention that the Union's appeal should be dismissed on procedural
grounds, which was based on a claim that there were other matters to be
resolved besides negotiability issues, e.g., no change in conditions of
employment have been made. The Authority stated that the where, as in
this case, the conditions for review of negotiability issues have been
met, a union is entitled to a decision by the Authority as to whether a
proposal is negotiable, despite the existence of additional issues in
the case. Additional issues should be resolved in other appropriate
proceedings.
Proposal 1 -- The proposal provides that if management feels that a
pattern of leave abuse is developing, it shall inform the Union 90 days
prior to any type of action being taken against the employee. Within
the 90 days, it corrective action/substantiation of need takes place,
there shall be no administrative action. The Authority, contrary to the
Agency's contention, found that the proposal is not excepted from the
definition of "condition of employment" under section 7103(a)(14)(c) so
as to be outside the duty to bargain, but found that it directly
interfered with management's right to discipline employees under section
7106(a)(2)(A). The Authority noted in this latter regard that the
proposal does not merely delay management actions concerning patters of
leave abuse, but prevents management from taking effective action to
prevent or correct such patterns. The Authority further found that the
proposal does not constitute a procedure which is negotiable under
section 7106(a)(2)(A), noting that the nature and extent of the
proposal's interference with the right to discipline strongly outweighs
the alleged benefit to employees.
Proposal 2 -- The proposal provides that management shall supply to
the Union all patterns of leave use which Management feels are leave
abuse. The Authority first rejected the Agency's contention that the
proposal should be dismissed for lack of specificity, finding the
information which management would be required to release sufficiently
specific to enable the Agency to review the proposal in connection with
the requirements of law, rule, and regulation and to enable it to rule
on the proposal's negotiability. On the merits, the Authority found the
proposal negotiable, rejecting the Agency's contentions that it is
inconsistent with Agency regulations and that it conflicts with
management's right to discipline employees.
Case No. 0-NG-1388
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3884, AFL-CIO
Union
VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE CENTER, FARGO, ND
Agency
This case is before the Authority because of 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 two Union proposals which apply to nurses who are
employed within the Agency's Department of Medicine and Surgery (DM&S).
We reject the Agency's contention that the Union's appeal should be
dismissed on procedural grounds. We conclude that the first proposal is
nonnegotiable. The second proposal is negotiable.
Without objection by the Union, the Agency requests us to consider
its supplemental submission, which asserts that the Union's appeal
should be dismissed because the Agency has not changed conditions of
employment relative to the matters proposed for negotiation so as to
give rise to a duty to bargain. We grant the request and have
considered the Agency's submission and the Union's response concerning
the Authority's jurisdiction over the Union's petition under section
7117. We reject these contentions of the Agency for the following
reasons.
Under part 2424 of our Regulations, we consider a petition for review
of negotiability issues only where the parties are in dispute as to
whether a matter proposed for bargaining is inconsistent with law, rule,
or regulation. In this case, the Agency claims that the Union's
proposals are inconsistent with various provisions of law and
regulation. Where, as here, the conditions for review of negotiability
issues have been met, a union is entitled to a decision by the Authority
as to whether a proposal is negotiable under the Statute, despite the
existence of additional issues in the case. For example, in this case
the Agency claims that it has no duty to bargain because no change in
conditions of employment has occurred. See Internal Revenue Service, 29
FLRA No. 12 (1987) ("the goal of providing more equality in the
positions of unions and agencies . . . is promoted by requiring
bargaining on union-initiated, mid-term proposals in some
circumstances").
To the extent that there are additional issues regarding the duty to
bargain in this case, these issues 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). Accordingly, the Agency's claim
that a threshold duty to bargain does not exist does not preclude us
from determining the negotiability of the Union's proposals because they
are otherwise properly before us. American Federation of Government
Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768
(1987).
In its statement of position, the Agency argues that the petition
should be dismissed as to the second proposal on grounds that it is not
sufficiently specific to constitute a "proposal" within the meaning of
our Regulations. In our view, the Agency has shown no basis for this
contention.
As explained below, the proposal requires management to provide
certain information to unit employees and the Union. In our opinion,
the information which management would be required to release under the
proposal is sufficiently specific to enable the Agency to review the
proposal in connection with the requirements of law, rule, and
regulation and to enable us to rule on the proposal's negotiability.
Therefore, we reject the Agency's claim that this proposal should be
dismissed for lack of specificity.
If management feels that a pattern of leave abuse is
developing, it shall inform the Union 90 days prior to any type of
action being taken against the employee. Within the 90 days, if
corrective action/substantiation of need takes place, there shall
be no administrative act;on.
The Agency asserts that this proposal is outside its duty to bargain
because the proposal concerns disciplinary matters which are
specifically provided for by Federal statute (5 U.S.C. Section 7503(a))
and are therefore excepted from the definition of conditions of
employment under section proposal conflicts with management's right to
discipline employees, under section 7106(a)(2)(A), because the proposal
would preclude effective use of counseling and discipline for patterns
of leave abuse. The Union disputes the Agency's contentions and argues
that the proposal constitutes a negotiable procedure and/or appropriate
arrangement under section 7106(b)(2) and (3).
The proposal as a whole is not excepted from the definition of
"conditions of employment" under section 7103(a)(14)(c) so as to be
outside the duty to bargain, as contended by the Agency. Under 38
U.S.C. Section 4108, the Agency's Administrator has discretion to
establish personnel policies for nurses in its DM&S notwithstanding any
law or regulation. Furthermore, 38 U.S.C. Section 4119 requires the
provisions of title 5 to yield to the provisions of title 38 where a
direct conflict exists between those statutes, except in circumstances
not present in this case. See Colorado Nurses Association and Veterans
Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA 803, 806
(1987), petition for review filed sub nom. Colorado Nurses Association
v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987). Accordingly, the Agency
has not shown that 5 U.S.C. Section 7503(a) "specifically provides" for
the matter covered by the proposal within the meaning of section 7103(a)
(14). For example, Veterans Administration, Washington, D.C., 27 FLRA
159 (1987), petition for review filed sub nom. Veterans Administration,
Washington, D.C. v. FLRA, No. 87-1341 (D.C. v. FLRA, No. 87-1341 (D.C.
Cir. July 24, 1987).
For the reasons discussed below, we find that the proposal directly
interferes with management's right to discipline employees under section
7106(a)(2)(A). See, for example, American Federation of Government
Employees, Local 1822, AFL-CIO and Veterans Administration Medical
Center, Waco, Texas, 9 FLRA 709, 711-12 (1982) and National Treasury
Employees Union and Internal Revenue Service, 6 FLRA 522, 522-53 (1981)
(union proposals which bar management from using discipline to correct
employee infractions conflict with section 7106(a)(2)(A)).
Based on the proposal's wording and the Union's explanation of its
intent, this proposal requires management to inform the Union of a
suspected pattern of leave abuse 90 days before management takes "any
type of action" against an employee for such conduct. The proposal also
precludes management from disciplining an employee for a pattern of
leave abuse if the employee corrects the pattern within the 90-day
period.
So intended, this proposal does not merely delay management actions
concerning patterns of leave abuse, as argued by the Union. It prevents
management from taking effective action to prevent or correct patterns
of leave abuse. After management has informed the Union that a pattern
of leave abuse has occurred, management must remain blind to the abuse
for 90 days. It cannot take action to correct the abuse which has
occurred. It cannot act to prevent abuse which may be continuing.
Management is also totally precluded from taking disciplinary action
concerning a pattern of leave abuse, no matter how severe the pattern
prior to or during the 90-day period if the employee corrects the
pattern at some time during the 90-day period (for example, on the 90th
day).
As explained above, the proposal directly and substantively
interferes with management's right to discipline employees under section
7106(a)(2)(A). Therefore, it does not constitute a procedure which is
negotiable under 7106(b)(2). For example, National Federation of
Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848
(1987) (Proposals 4-6). Further, we conclude that the proposal does not
constitute a negotiable appropriate arrangement under section
7106(b)(3).
Like subsection (a) of Provision 22 in International Plate Printers,
Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and
Department of the Treasury, Bureau of Engraving and Printing,
Washington, D.C., 25 FLRA 113 (1987), this proposal concerns employees
against whom management may initiate discipline for conduct for which
the employee is at "fault." Further, by both (1) substantively limiting
management's ability to use discipline to prevent recurrences of leave
abuse and (2) precluding management from disciplining an employee no
matter how severe the abuse, if the employee corrects the pattern
consistent with the proposal, the proposal would excessively interfere
with the right to discipline. In this regard, we find that the nature
and extent of the proposal's interference with the right to discipline
strongly outweighs the alleged benefit to employees from the Union's
proposed arrangement. Id.
Proposal 1 is nonnegotiable. It excessively interferes with
management's right to discipline employees under section 7106(a)(2)(A).
Management shall supply to the Union all patterns of leave use
which Management feels are leave abuse.
The Agency asserts that the information which this proposal requires
management to provide the Union is governed by Agency regulations (1)
which are promulgated under the authority of 38 U.S.C. Section 4108 and
(2) which mirror the requirements of Government-wide regulations of the
Office of Personnel Management (OPM). It argues that the proposal is
outside its duty to bargain for these reasons. The Agency also argues
that the proposal conflicts with management's right to discipline
employees under section 7106(a)(2)(A). The Union disputes these
contentions and argues that the proposal is negotiable.
This proposal is negotiable. It merely requires management to notify
the Union of the patterns of leave use which management believes would
constitute patterns of leave abuse. There is nothing in the wording of
this proposal or the Union's explanation of its intent which indicates
that implementation of this proposal would affect the descriptions of
leave abuse which may be contained in the Agency's regulations. In any
event, the Agency has not asserted that the proposal conflicts with its
regulations, that a compelling need exists for its regulation to bar
negotiation of the proposal, or that the regulations involve the
exercise of management's rights. Accordingly, the Agency's contention
that this proposal is barred from negotiation by Agency regulations is
without merit.
The contention that this proposal conflicts with management's right
to discipline employees is also without merit. As explained by the
Union, this proposal is only intended to require management to provide
the Union and employees with advance notice of the patterns of leave use
which management feels are indicative of leave abuse. In our view,
based on the plain wording of the proposal, the proposal would not limit
management's prerogative to discipline employees for leave abuse when
management decides that leave abuse has occurred, even if the pattern of
leave abuse involved was one as to which the Agency has not previously
informed the Union.
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposal 2. /*/ The Union's petition for
review is dismissed as to Proposal 1.
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.
30 FLRA NO. 2
Hill Air Force Base, Utah and AFGE, Local No. 1592 (Wollett,
Arbitrator), Case No. 0-AR-1372, (Decided November 10, 1987)
7122(a)
ARBITRATION AWARDS, MODIFIED
ARBITRATION, REMEDIES ORDERED
COMPENSATION AND OTHER MONEY RELATED MATTERS
BACKPAY
PROMOTION
RETROACTIVE PROMOTION WITH BACKPAY
BACKPAY
RETROACTIVE PROMOTION
CONSIDERATIONS FOR THE AWARD OF A RETROACTIVE PROMOTIONS
MINIMUM QUALIFICATIONS
FEDERAL PERSONNEL MANUAL
CHAPTER 335
OPM
X-118 HANDBOOK
PROMOTION
TEMPORARY PROMOTION FOR PERFORMING DUTIES OF A HIGHER GRADE
The award at issue awarded the grievants retroactive temporary
promotions with backpay for the period of time commencing with the 31st
day of an assignment and ending with the date of their reassignment.
Both the Agency and Union filed exceptions.
With respect to the Agency's exceptions, the Authority found the
award deficient. The Authority noted that in order for an employee to
be properly promoted consistent with civil service laws and regulations,
whether temporarily or permanently, the employee must meet at the time
of the promotion the minimum qualification requirements for the position
to which the employee is to be promoted. The Authority found that the
Agency has established that the grievants did not meet the minimum
qualification requirements for the temporary promotion ordered. The
Authority noted however that the Director of the Office of Personnel
Management is authorized to grant variations from civil service
regulations (5 C.F.R. sec. 5.1). Accordingly, they modified the award
to direct that such a request be made.
The Authority denied the Union's exceptions that the award was
contrary to OPM Manual X-118, finding that it constituted nothing more
than disagreement with the Arbitrator's interpretation and application
for the collective bargaining agreement and provides no basis for for
finding the award deficient.
Case No. O-AR-1372
HILL AIR FORCE BASE, UTAH
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 1592
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Donald H. Wollett filed by both 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. The Union filed an opposition to the Agency's exceptions.
Two grievances were filed and jointly submitted to arbitration on the
issues of whether the parties' collective bargaining agreement entitled
the grievants to (1) retroactive temporary promotions for the nearly
2-year period during which they performed the duties of the higher-grade
position of production controller, GS-7; and (2) credit at the GS-7
level for the experience gained during this time.
On the issue of whether the grievants were entitled to have been
temporarily promoted, the Activity argued before the Arbitrator that
they were not eligible for promotion under X-118 civil service
qualification standards because they did not have the minimum qualifying
experience of 5 years of total experience, which must include 3 years of
specialized experience. The Activity further maintained that this
requirement was not subject to waiver.
The Arbitrator agreed with the Activity that the X-118 qualification
standard required 5 years of experience and that the grievants failed to
meet this minimum qualification requirement. However, the Arbitrator
disagreed that the standard was not waivable, and he ordered the
Activity to waive the qualification requirement. The Arbitrator awarded
the grievants retroactive temporary promotions with backpay for the
period of time commencing with the 31st day of the assignment and ending
with the date of their reassignments.
The second issue concerned whether the grievants were entitled under
the parties' collective bargaining agreement to credit at the GS-7 level
for the experience gained during the period they performed the duties of
the production controller position. The Arbitrator determined that
under the terms of the collective bargaining agreement, Grievant Cook
was entitled to credit, but Grievant Crane was not, except for the
period of his formal detail.
4 The Agency contends that the award is contrary to civil service
regulations. Specifically, the Agency maintains that by awarding the
grievants retroactive temporary promotions with backpay, the award is
contrary to Federal Personnel Manual chapter 335, which prohibits
promotions of employees who do not meet the minimum qualification
requirements for the position. In addition, the Agency maintains that
X-118 minimum qualification requirements cannot be waived by agencies.
The Union generally disputes the Agency's contentions. In addition,
however, the Union maintains that the Activity should be required to
comply with the award because it could and should have requested from
the Office of Personnel Management under 5 C.F.R. Section 5.1 a
variation from the X-118 standards in order to grant the temporary
promotions.
We conclude that the award is deficient. In order for an employee to
be properly promoted consistent with civil service laws and regulations,
whether temporarily or permanently, the employee must meet at the time
of the promotion the minimum qualification requirements for the position
to which the employee is to be promoted. For example, American
Federation of Government Employees, Local 1631 and Veterans
Administration Medical Center, Chillicothe, Ohio, 23 FLRA 507 (1986).
In this case, we find that the Agency has established that the grievants
did not meet the minimum qualification requirements for a temporary
promotion to GS-7 for the disputed period.
We note that, on the basis of the Activity's evidence and testimony,
the Arbitrator agreed with the Activity that the grievants did not meet
the X-118 qualification standards for promotion to GS-7. Additionally,
there is no provision for waiver by an agency of the X-118 qualification
standard in dispute. Consequently, the award by the Arbitrator of
temporary promotions in conjunction with the Activity's waiver of the
qualification requirement is deficient and must be modified. However,
the Director of the Office of Personnel Management (OPM) is authorized
to grant variations from civil service regulations. 5 C.F.R. Section
5.1. Accordingly, we will modify the award to direct that such a
request be made. See Department of the Army, New Cumberland Army Depot
and American Federation of Government Employees, Local 2004, 21 FLRA 968
(1986) (award modified to direct the activity to request OPM to
authorize a temporary promotion for the period involved that was in
excess of 2 years).
The Union contends that the award, to the extent that it denied
Grievant Crane experience credit, is contrary to OPM Manual X-118.
Specifically, the Union argues that Manual X-118 permits the crediting
of experience in cases of "misassignment" and claims that consequently,
the award is deficient by denying Grievant Crane experience credit for
his misassignment.
We deny the Union's exception. The Arbitrator specifically
determined that under the parties' collective bargaining agreement,
Grievant Crane was not entitled to experience credit. Even assuming
that Grievant Crane's situation was a misassignment within the meaning
of the cited provision of Manual X-118, the provision for crediting of
experience is only permissive and not prescriptive.
Accordingly, the Union's exception constitutes nothing more than
disagreement with the Arbitrator's interpretation and application of the
collective bargaining agreement and provides no basis for finding the
award deficient as alleged. See, for example, American Federation of
Government Employees (AFL-CIO) Local 1770 and Headquarters XVIII
Airborne Corps and Fort Bragg, Fort Bragg, N.C., 6 FLRA 348 (1981).
For the reasons discussed, the award is modified to substitute the
following for paragraph 3 of the award which grants the grievant's
retroactive temporary promotions with backpay:
The Activity shall request that the Director of the Office of
Personnel Management grant a variation from civil service
regulation and formally authorize the Activity to award the
grievants retroactive temporary promotions with backpay for the
period designated by the Arbitrator despite their not meeting
minimum qualification requirements during the period.
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
30 FLRA NO. 1
VA Regional Office and AFGE, Local 1765 (Stallworth, Arbitrator),
Case No. 0-AR-1272, (Decided November 10, 1987)
7106(a)(2)(B)
7121(f)
7122(a)
ARBITRATION AWARDS SET ASIDE
FSLMR STATUTE, AWARD CONTRARY TO
7106(a)(2)(B)
ASSIGN WORK
ARBITRATION EXCEPTIONS, AWARD:
FSLMR STATUTE, AWARD CONTRARY TO THE
7106(a)(2)(B)
ASSIGN WORK
HOURS OF WORK
TIME ALLOCATION OF WORK ASSIGNMENTS
AMOUNT OF TIME TO PERFORM SPECIFIED WORK
HOURS OF WORK
NUMBER OF HOURS PER WEEK
SHIFT ASSIGNMENTS AND HOURS
CHANGES CONTINGENT ON EMPLOYEE APPROVAL OR REQUEST
PROCEDURE, FORUMS
ARBITRATION AWARDS, REVIEW OF
ADVERSE ACTIONS
REDUCE IN PAY OR GRADE
UNITED STATES CODE
5 U.S.C. 7511(a)(4)
5 U.S.C. 7512
The Authority set aside an arbitration award that ordered that
grievants be restored to previous schedules and that they not be
required to work the disputed tour of duty without their consent. The
award also awarded backpay for the reduction in pay as a result of
previous changes in tours of duty. The exceptions filed by the Agency
contended that the award was contrary to management's right to assign
work under section 7106 (a)(2)(B), arguing that the award essentially
mandated that the grievants be assigned 24 hours of work per week
contrary to management's determination to assign them only 20 hours of
work per week.
The Authority first rejected the Union's contention that the matter
at issue was a reduction-in-pay under 5 U.S.C. sec. 7512 and, as a
matter described in section 7121(f) of the Statute, not subject to
exceptions under section 7122(a). The Authority stated that for section
7512 to be applicable there must be a reduction in the basic pay for the
position held by the employee. (5 U.S.C. sec. 7511(a)(4)) On the
merits, the Authority found that by rejecting management's determination
to schedule and assign the grievants 20 hours of work per week and by
instead compelling the Activity to schedule and assign them 24 hours of
work per week, the award restricts management right to determine the
number of hours of work the grievants will be assigned and is contrary
to section 7106(a)(2)(B).
Case No. 0-AR-1272
VETERANS ADMINISTRATION REGIONAL OFFICE
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1765
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Lamont E. Stallworth 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.
For the reasons which follow, we find that the award is deficient.
A grievance was filed and submitted to arbitration on the issue of
whether the Activity acted properly when it changed the tours of duty of
the grievants, two permanent, part-time career employees. In 1982, each
grievant became a permanent, part-time career employee and each grievant
was assigned a tour of duty of 8 hours a day, 3 days a week. On
February 13, 1986, the grievants were notified that as a result of a
management decision to reduce salary costs, effective March 3, their
hours of work would be reduced from 24 to 20 and their tours of duty
would be changed to 4 hours a day, 5 days a week. It was this work
schedule that resulted in the grievance.
The Arbitrator concluded that under civil service laws and
regulations pertaining to part-time career employment, the Activity was
not authorized to reduce unilaterally the grievants' hours of work. In
addition, the Arbitrator concluded that even if the Activity were
authorized to reduce the hours of work of a part-time career employee,
there must be notice to the employees of this possibility on appointment
or conversion to part-time career employment. In this case, the
Arbitrator found no such notification to the grievants. Accordingly,
the Arbitrator, as his award, determined that the Activity had not acted
fairly and properly. He ordered that the grievants be restored to their
previous schedules and that they not be required to work the disputed
tour of duty without their consent. He also awarded them backpay for
the reduction in their pay as a result of the change in their tours of
duty.
As one of its exceptions, the Agency contends that the award is
contrary to management's right to assign work under section
7106(a)(2)(B) of the Statute. The Agency argues that the award
essentially mandates that the grievants be assigned 24 hours of work per
week contrary to management's determination to assign them only 20 hours
of work per week.
The Union has contended that the reduction in hours of work of the
grievants is a reduction-in-pay under 5 U.S.C. Section 7512 and, as a
matter described in section 7121(f) of the Statute, exceptions cannot be
filed to the award under section 7122(a). We reject the Union's
contention and confirm our jurisdiction to resolve the Agency's
exceptions. We find that for section 7512 to be applicable there must
be a reduction in the basic pay for the position held by the employee.
5 U.S.C. Section 7511(a)(4). The reduction in the hours of work of
grievants did not result in a reduction in the basic pay for their
positions because the rate of pay for their positions remained the same.
See, for example, Burkwist v. Department of Transportation, 27 MSPR 419
(1985).
We conclude that the award is contrary to section 7106(a)(2)(B). The
Authority has specifically held that proposals which restrict
management's determination on the duration of work assignments conflict
with management's right to assign work. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 13 and cases
cited in the decision).
In our view, management's determination as to the number of hours of
work which will be scheduled and assigned to a part-time career employee
is similar to management's determination of the duration of work
assignments and is encompassed by management's right to assign work.
Consequently, we find that by rejecting management's determination to
schedule and assign the grievants 20 hours of work per week and by
instead compelling the Activity to schedule and assign them 24 hours of
work per week, the award restricts management's right to determine the
number of hours of work the grievants will be assigned and is contrary
to section 7106(a)(2)(B).
Accordingly, the award is set aside. /*/
Issued, Washington, D.C., November 10, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) In view of this decision, it is not necessary to address the
Agency's other exceptions to the award. However, we note that there is
no basis in law or regulation for the Arbitrator's conclusion that there
must be notice to part-time career employees on appointment or
conversion that management can reduce their hours of work.
29 FLRA NO. 126
AFGE, Council 214 and U.S. Marine Corps, Marine Corps Logistics Base,
Nonappropriated Fund Instrumentality, Albany, Georgia, Case No.
0-NG-1320, (Decided November 6, 1987)
7105(a)(2)(D) and (e)
7106(a)(2)(A), (B) and (C)
7106(b)(2) and (3)
APPOINTMENTS, MANAGEMENT RIGHT
POSITIONS, FILLING OF
LIMITATIONS ON SELECTION
APPROPRIATE ARRANGEMENTS
ARRANGEMENT
NOT AN "ARRANGEMENT" WHERE NO ADVERSE IMPACT
ASSIGN WORK
EXCESSIVE INTERFERENCE TEST
MANAGEMENTS RIGHTS AND DELIBERATIONS, IMPACT ON
DISPROPORTIONATE IMPACT ON MANAGEMENT'S RIGHTS
OVERTIME
POSITION, FILLING OF
PROMOTION
TRAINING
ARBITRATION
MEETINGS PRIOR TO ARBITRATION HEARING
ASSIGN WORK
DUTIES AND WORK TO BE ASSIGNED
PROHIBITION AGAINST ASSIGNMENT OF CERTAIN DUTIES
POSITION DESCRIPTIONS, WORK UNRELATED TO
INAPPROPRIATE TO THE POSITION
EMPLOYEES TO WHOM OR POSITIONS TO WHICH WORK WILL BE ASSIGNED
NON-BARGAINING UNIT EMPLOYEE
OVERTIME
COLLECTIVE BARGAINING AGREEMENT
EXPIRED AGREEMENT, CONTINUATION OF PROVISIONS
CONDITIONS OF EMPLOYMENT
EXAMPLES OF MATTERS ALLEGED TO BE A C.O.E.
LEAVE
NON-BARGAINING UNIT EMPLOYEES
DIRECT EMPLOYEES
PROMOTION
FEDERAL PERSONNEL MANUAL
CHAPTER 335
LEAVE
ANNUAL LEAVE OR VACATION PAY
COMPENSATION FOR LEAVE NOT TAKEN
MANAGEMENT RIGHTS: GENERALLY
LANGUAGE OR TERMS USED
PRIORITIZING OF MANAGEMENT OBJECTIVES
"TO THE MAXIMUM EXTENT . . ."
ORGANIZATION, DETERMINATION OF, RESERVED MANAGEMENT RIGHT
TRAINING
OVERTIME
CALL BACK
OVERTIME RESTRICTIONS
EMERGENCIES ONLY
PROMOTION
TEMPORARY PROMOTION
ROTATION OF TEMPORARY PROMOTIONS
POSITION ASSIGNMENTS OR FILLING OF
RATING AND RANKING PANEL
TRAINING
ASSIGNMENT OF TRAINING
CROSS TRAINING
OPPORTUNITY FOR TRAINING
The case presents issues concerning the negotiability of nine
provisions of the parties' locally negotiated agreement which were
disapproved by the head of the agency pursuant to section 7114(c).
Provision 1 -- The provision provides that to the maximum extent
consistent with work requirements, employees will assign to work
appropriate to their job classification specified in (their) job
description(s) and at the step or grade level for which they are being
paid. The Authority found it nonnegotiable because it violated the
agency's right under section 7106(a)(2)(B) to assign work in that it
precluded the agency from requiring employees to perform duties
"inappropriate to their position or qualifications." The fact that the
provision is qualified by the language "to the maximum extent consistent
with work requirements" does not remove the limitation on the Agency's
right to exercise its discretion in making work assignments.
As to whether the proposal is an appropriate arrangement under
section 7106(b)(3), the Authority stated that even assuming that it
constitutes an arrangement for adversely affected employees, it is not
an "appropriate" arrangement because it interferes excessively with
management's rights. Balancing the restriction which the provision
would place on the Agency's right to assign work against the limited
extent to which it would benefit employees, the Authority concluded that
the negative impact on management's right is disproportionate to the
benefit derived by employees.
Provision 2 -- The provision seeks to restrict the ability of the
Agency to assign certain overtime work to nonunit employees. The
Authority, noting that the right to assign work encompasses the
assignment of overtime, found that the provision constitutes a
substantive limitation on the Agency's right to assign, directly
interfering with management's right, and not constituting a procedure
negotiable under section 7106(b)(2). The Authority also rejected the
contention that the provision was negotiable as an appropriate
arrangement, the effects on management's rights outweighing the benefit
to employees.
Provision 3 -- This provision provided that employees called in to
work outside of their basic work would be guaranteed a minimum of 2
hours of work and shall be excused upon completion of the task they were
called in to perform. Further, all call-back overtime worked shall be
considered to be at least 2 hours in duration. The Authority determined
that as the provision expressly limited the agency's right to assign
work on call back to duties related to the emergency situation
necessitating the call back, it was inconsistent with section
7106(a)(2)(B). Further, balancing the detriment to the Agency's ability
to exercise its right to assign against the extent to which employees
would be benefited by the provision, the Authority concluded that the
provision interferes excessively with management's right and is not an
appropriate arrangement which is negotiable under section 7106(b)(3).
Provision 4 -- This provision provided that the maximum amount of
accumulated vacation leave that may be carried over from one leave year
to another is 240 hours, any amount in excess being forfeited except
upon a certification by the employer that an eligible employee has been
denied the privilege to take vacation leave, in which case the employee
will be paid cash in lieu of the vacation not taken. The Authority
rejected the Agency's contentions that the provision did not concern a
condition of employment simply because it concerns a money-related
fringe benefit; and that a compelling need existed for a regulation
that barred negotiations on the provision. As to the latter, the
Authority found that as the Agency had presented nothing more than
generalized and conclusionary statements to support its contention, that
it had not met its burden of demonstrating that its regulation is
essential, as distinguished from merely being helpful or desirable.
Chairman Calhoun in a separate opinion stated that in the absence of a
clear expression of Congressional intent to make wage and money-related
fringe benefits negotiable, he would find that they are not within the
duty to bargain.
Provision 5 -- The disputed portion of the provision would require
that when it is anticipated that a temporary promotion will extend over
a protracted period of time, such temporary promotion will be rotated
among available qualified employees every 90 days. The Authority found
that this portion of the provision directly and excessively interfered
with the Agency's right under section 7106(a)(2)(A) and(B) to assign
work and direct employees and is not an appropriate arrangement within
the meaning of section 7106(b)(3).
Provision 6 -- The provision provided for a rating panel to rate and
rank applicants and screen out all but five highly qualified candidates
whose names would be furnished to the selecting official. For each
additional vacancy, one additional name would be added to the highly
qualified list. The selection list is prepared by listing the highly
qualified in alphabetical order and the selecting official shall select
from among them. The Authority concluded that the provision interferes
with the right under section 7106(a)(2)(C) to select from other
appropriate sources. It does not however violate FPM Chapter 335, as
alleged by the Agency. Moreover, the provision is not negotiable as a
procedure under section 7106(b)(2) or an appropriate arrangement under
section 7106(b)(3), in that the Union had not established that it
relates to only adversely effects on employees.
Provision 7 -- At issue were two sections. Section 3 provides that
the Employer will provide employees on-the-job cross-training to the
maximum extent practicable, using techniques such as interchanging
employees. Section 5 provides that if new equipment is installed or new
procedures implemented appropriate training will be provided affected
employees. The Authority concluded as to both section 3 and section 5,
that as the Agency's right to assign work under section 7106(a)(2)(B)
encompasses the assignment of training, they are inconsistent with that
right. Section 3 was found not to constitute a negotiable arrangement
under section 7106(b)(3) as it would apply regardless of whether any
management right was exercised and since the exercise of the management
right which might be involved is purely speculative, there is no basis
for finding it to be an arrangement for employees adversely affected by
the exercise of a right within the meaning of 7106(b)(3). Section 5 was
determined to be negotiable as an appropriate arrangement, noting that
it was limited to requiring appropriate training to be given affected
employees. The Authority found that the negative impact on the Agency's
right to assign work is outweighed by the benefits to employees of being
afforded appropriate training where new equipment and procedures are
introduced.
Provision 8 -- At issue was a sentence in an EEO provision that
provided that the Employer agrees to provide opportunities for employees
to improve their skills through on-the-job training, work-study
programs, or other training programs including redesigning jobs where
and if feasible so that they may perform at their highest potential and
advance in accordance with the abilities. The Authority found the
sentence in conflict with section 7106 right, concluding that the
provision places a substantive limitation on the Agency's discretion to
determine whether it will assign training during duty hours and or
redesign jobs. The Authority found direct interfering with the right to
determine its organization and to assign work, rejecting the Union's
argument that it constituted a negotiable procedure under section 7106
(b)(3). Further, it was concluded that the Union had not established
that the provision is an "arrangement" under section 7106(b)(2).
Provision 9 -- The provision provides that if neither party serves
notice to negotiate the agreement, it shall automatically renew for a
one year period, subject to the due delay on the part of either party.
The second sentence provided that prior to meeting with the arbitrator,
the parties will meet to define the issue to be arbitrated. The Agency
had contended that the provision conflicted with Agency regulations in
that if it did not choose to renegotiate the agreement, the provision
would prevent it from bringing the agreement into conformance with
Government-wide and Agency regulations for which a compelling need
exists. The Authority, after describing how the Agency could accomplish
such conformance notwithstanding the language of the provision, rejected
the Agency's contention, finding that the Agency had not established
that the provision is inconsistent with Agency regulations.
Case No. 0-NG-1320
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2317
Union
U.S. MARINE CORPS MARINE CORPS LOGISTICS BASE,
NONAPPROPRIATED FUND INSTRUMENTALITY, ALBANY GEORGIA
Agency
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It presents issues
concerning the negotiability of nine provisions of the parties' locally
negotiated agreement which were disapproved by the head of the agency
pursuant to section 7114(c). The Agency has withdrawn its disapproval
of three additional provisions. /1/
For the reasons discussed below, the Authority finds that the Agency
must rescind its disapproval of Provisions 7 (section 5) and 9. The
Union's petition for review concerning Provisions 1, 2, 3, 5, 6, 7
(section 3) and 8 is dismissed. The Authority Members have reached
differing conclusions concerning Provision 4. The Decision and Order
and Chairman Calhoun's dissenting opinion on this provision immediately
follow this decision.
Article VIII, Section 1
The Employer agrees that employees, to the maximum extent
consistent with work requirements, will be assigned to work
appropriate to their job classification specified in (their) job
discription(s) and at the step or grade level for which they are
being paid.
The Union asserts that this provision is intended to prevent
exploitation of employees in the assignment of work. That is, it
generally requires that the Agency limit work assignments to what
accords with predetermined classifications and pay rates. It
specifically seeks to cure the problem of assignment of work which is
classified at a higher pay level. It does not dictate how the Agency
will establish classifications and pay rates, but only requires that
management adhere to them in the assignment of work to the maximum
extent consistent with work requirements. It argues that the provision
is negotiable as an "appropriate arrangement" under section 7106(b)(3).
In support it argues that employees have no control over their work
assignments and have a significant interest in being appropriately
compensated for the work assigned. Moreover, it argues that the impact
on the Agency's right to assign work is limited in that, while the
provision would generally proscribe assignments which do not comport
with classification and pay rates, such proscription would not apply
where work requirements dictate otherwise. On balance it contends that
the benefits to employees outweigh the negative impact on the Agency's
rights.
The Agency asserts that the provision interferes with its right under
section 7106(a)(2)(B) to assign work. As to the negotiability of this
and other provisions under section 7106(b)(3), the Agency argues that
the provision is not focused on ameliorating adverse effects consequent
to the exercise of a management right, but rather on preventing the
exercise of the right. Also it argues that section 7106(b)(3) is
applicable only where management effects a substantial change in
conditions of employment as opposed to routine exercises of management
rights. Based on these reasons it contends that the provision is
nonnegotiable.
This provision, by its express language and its intent, would
preclude "to the maximum extent consistent with work requirements" the
assignment of duties which are not consistent with an employee's
classification and pay rate. It is to the same effect as Provision 2 in
National Federation of Federal Employees, Local 1622 and Department of
the Army, Headquarters, Vint Hill Farms Station, Warrenton, Virginia, 16
FLRA 578 (1984), which the Authority found was nonnegotiable because it
violated the agency's right under section 7106(a)(2)(B) to assign work
in that it precluded the agency from requiring employees to perform
duties "inappropriate to their positions or qualifications."
The fact that this provision is qualified by the language "to the
maximum extent consistent with work requirements" does not remove the
limitation on the Agency's right to exercise its discretion in making
work assignments. Such qualifying language does not make an otherwise
nonnegotiable matter negotiable. To the contrary, such language
constitutes a substantive criterion which would enable an arbitrator to
substitute his or her judgement for management's as to, for example,
whether management had made work assignments within the limitations
prescribed by Provision 1 to the maximum extent consistent with work
requirements. Overseas Education Association, Inc. and Department of
Defense Dependents Schools, 29 FLRA No. 56 (1987) (Proposals 5a-d).
Furthermore, this provision is unlike proposals which have been found
negotiable because they required only that management take specified
matters into consideration in making work assignments but which left
intact the Agency's discretion with respect to making the assignments.
Compare, for example, American Federation of Government Employees,
AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio,
Texas, 12 FLRA 76 (1983) (Proposal 37 and cases cited therein).
More recently, the Authority was presented with a proposal concerning
the assignment of duties to employees which was held to be
nonnegotiable. National Association of Government Employees, SEIU,
AFL-CIO and State of Connecticut, Adjutant General Office, 27 FLRA No.
86 (1987) (Proposal 2) (Chairman Calhoun dissenting on Proposal 3). The
proposal would have limited the definition of the phrase "other duties
as assigned" in employee position descriptions in order to prevent the
agency from assigning menial or lower grade duties which employees were
not qualified to perform, whether or not the agency amended the position
descriptions to reflect assignment of the proscribed duties. Therefore,
we held that the proposal was nonnegotiable, as Provision 1 is in the
instant case, for having the same effect as Provision 2 in Vint Hill
Farms Station, discussed above.
In National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24 (1986), the Authority articulated
the test for determining whether a proposal is negotiable as an
appropriate arrangement under section 7106(b)(3). Under that test,
whether the exercise of management rights involved is "routine" or
results in a substantial change in conditions of employment is not,
standing alone, determinative of the question of negotiability, as the
Agency suggests. The factor may be a consideration in balancing the
interests of employees against those of management. It therefore may
have some impact on the ultimate determination of whether a proposal is
negotiable under section 7106(b)(3).
The Union asserts that the provision is intended as an arrangement to
ameliorate the adverse effect on employees of being assigned work of a
level and nature which does not correspond to the rate at which they are
compensated. We do not think it is apparent, and the record does not
show, that employees would inevitably or uniformly be affected adversely
by such assignments. The Union tacitly concedes this dichotomy in its
arguments as to other provisions of this case: that opportunities to
develop broader skills are beneficial to employees. See Provisions 7
and 8 in this decision. In some circumstances, assignments to work of a
different classification and higher rate of pay without receiving the
higher rate of pay, might reasonably be viewed as detrimental to the
interests of employees. In other circumstances those assignments might
reasonably be viewed as being beneficial.
However, even if we assume that the proposal constitutes an
arrangement for adversely affected employees, we find that it is not an
"appropriate" arrangement because it interferes excessively with
management's rights. As explained by the Union the provision would act
as a general, although not absolute, proscription on the assignment of
work which is not in accordance with an employee's job classification
and pay rate. It would severely limit the Agency's discretion with
respect to making such work assignments. As to benefits to employees,
it would limit the extent to which they would be required to perform
work associated with a higher pay rate without receiving that pay rate.
However, it would also limit their opportunities to gain experience and
develop whatever skills might be associated with broader work
assignments. On the whole, balancing the restrictions which the
provision would place on the Agency's right to assign work against the
limited extent to which it would benefit employees, we conclude that the
negative impact on management's rights is disproportionate to the
benefits derived by employees.
Provision 1 excessively interferes with the Agency's right to assign
work and is not within the duty to bargain.
Article IX, Section 2
Overtime shall be equitably distributed among employees engaged in
similar work in a particular work area as far as practicable. It
is understood that where special skills are required, employees
possessing such skills will be assigned to the overtime work
involved. Supervisors shall not assign overtime work to employees
as a reward or penalty but solely in accordance with the Employers
need. In case of dispute regarding equity of overtime
distribution, the Employer shall, to the extent permitted by the
Privacy Act of 1974, make overtime records of the employees
involved available to the Union.
The Agency asserts that this provision interferes with its right
under section 7106(a)(2)(B) to assign work in that it would restrict the
Agency's discretion to assign bargaining unit work on an overtime basis
to nonbargaining unit employees. It argues that this provision is not
an appropriate arrangement because it prevents the exercise of the
management right rather than ameliorating its claimed adverse effect on
employees.
The Union asserts that this provision merely sets forth a procedure
for the assignment of overtime and that it does not interfere with the
Agency's right to assign work. It describes the proposal as seeking to
protect the rights of bargaining unit employees to an "equitable" share
of overtime work and the accompanying premium pay. However, it asserts
that under the provision the Agency retains the ability to assign
bargaining unit work on an overtime basis to nonbargaining unit
employees where restriction to the bargaining unit is not "practicable."
As an alternative argument, the Union asserts that even if the
provision interferes with management's right, it is negotiable as an
appropriate arrangement intended to address the adverse effects of
inequitable assignment of overtime work.
Assign Work and Is Not a Procedure
As described by the Union, the purpose of this provision is the
preservation of bargaining unit work. That is, it seeks to restrict the
ability of the Agency to assign certain overtime work to nonunit
employees.
The right to assign work encompasses the assignment of work on
overtime. The Authority consistently has found that proposals which
restrict the assignment of overtime to bargaining unit employees
conflict with that right. See, for example, American Federation of
Government Employees, Local 1409, AFL-CIO and U.S. Army Adjutant General
Publications Center, Baltimore, Maryland, 16 FLRA 352 (1984) (Provision
1).
In contrast, proposals which are limited to determining which
particular employees, among those employees to whom management in its
discretion has already assigned the work involved, will be selected to
perform the work in an overtime status when management determines that
overtime is required have been held negotiable. See for example,
American Federation of Government Employees, AFL-CIO, National Joint
Council of Food Inspection Locals and Department of Agriculture, Food
Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982)
(Proposal 1). The critical difference between the two types of
proposals is that the first limits the agency's discretion to decide
whether it will restrict overtime assignments to the bargaining unit;
the second does not. Provision 2 is in the first category.
The Union asserts that because the proposed restriction is qualified
by the language "as far as practicable" it preserves management's
flexibility to assign unit work to nonunit employees when necessary. We
rejected a similar claim in connection with the phrase "to the maximum
extent consistent with work requirements" in Provision 1. We reject
this argument for the same reasons. Consequently, since the provision
constitutes a substantive limitation on the Agency's right to assign
overtime work to nonunit employees, we find that it directly interferes
with management's right to assign work, and does not constitute a
procedure negotiable under section 7106(b)(2).
Arrangement
It is not clear that bargaining unit employees are "adversely
affected" by management's exercising its right to assign overtime work
to nonunit employees. We may assume, however, for the purpose of this
decision that the provision was intended to ameliorate an adverse effect
perceived by a qualified bargaining unit employee who was not assigned
overtime work even though the assignment was "practicable," and lost the
opportunity to earn overtime compensation, because management assigned
the work to a nonunit employee instead. In this circumstance, the
proposal would prevent the Agency from assigning the overtime work
outside the bargaining unit notwithstanding any determination by
management under section 7106(a)(2)(B) that the work should be assigned
to, for example, a supervisor, an employee in another bargaining unit,
or a contractor's employee. See Defense Logistics Agency, Council of
AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics
Agency, 24 FLRA 367 (1986) (Proposal 4). Such a proposal, which
abrogates the exercise of the discretion inherent in management's right
to assign work, see Department of Agriculture, Food Safety an Quality
Service, Washington, D.C. at 664, clearly does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3). See
AFGE Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing
and remanding American Federation of Government Employees, AFL-CIO,
Local 2782 and Department of Commerce, Bureau of the Census, Washington,
D.C., 7 FLRA 91 (1981). The proposal's effects on management's rights
outweighs the benefit to employees, in our view. Accordingly, the
provision excessively interferes with management's right.
Provision 2 is not within the duty to bargain because it violates
management's rights under section 7106(a)(2)(B) and does not constitute
a negotiable procedure under section 7106(b)(2) or an appropriate
arrangement under section 7106(b)(3) of the Statute.
Article IX, Section 6
Employees called in to work outside of and unconnected with their
basic work week shall be guaranteed a minimum of 2 hours of work
and shall be immediately excused upon completion of the task they
were called in to perform. All call-back overtime worked shall be
considered to be at least 2 hours in duration.
The Agency contends that this provision is nonnegotiable insofar as
it mandates that employees who have been called in to work beyond their
basic workweek must be released upon completion of the particular task
which they were called in to perform. It contends that this aspect of
the provision conflicts with the right to assign work under section
7106(a)(2)(B). It asserts that the provision is not negotiable as an
appropriate arrangement for several reasons. First, it argues that
section 7106(b)(3) is not intended to apply to routine exercises of
management authority but only where an exercise of that authority
results in a change in conditions of employment which is substantial.
Even if section 7106(b)(3) applies in circumstances such as those to
which this provision would apply, the provision would excessively
interfere with the right to assign work in that it would deprive the
Agency of all discretion inherent in its right to assign work during
callback while providing insignificant benefits to employees.
The Union asserts that this provision is intended as an arrangement
for employees adversely affected by the Agency's exercise of its right
to assign work by calling them back outside their work hours. The
adverse effects which the provision is intended to ameliorate are the
intrusion into the employee's personal time and the "uneven release
procedure practiced by the employer" -- that is, sometimes employees are
released after completing the particular task for which they were called
back and other times employees are assigned other tasks. It asserts
that the impact on the Agency's management rights is limited to
preventing the Agency from assigning "busy work" to employees who are on
call back. Thus it asserts that the Agency would only be required to
refrain from assigning duties during call back which would normally be
assigned during the regular workweek. As to benefits to employees, the
Union contends that the provision would minimize the inconvenience to
employees which is attendant to being called back to work during times
they would otherwise be off duty. As to the effect of the provision on
effective and efficient Government, the Union contends there would be
little, because in practice call back situations seldom occur.
The provision is in dispute insofar as it requires that employees on
call back will be released from duty when they have completed the
specific task for which they were called back.
Right to Assign Work
The disputed portion of this provision is to the same effect as a
portion of a proposal which was found nonnegotiable in National
Federation of Federal Employees, Local 1380 and Department of the Navy,
Naval Coastal Systems Center, Panama City, Florida, 11 FLRA 129 (1983).
That proposal expressly limited the agency's right to assign work on
call back to duties related to the emergency situation necessitating the
call back. The Authority held that it was inconsistent with section
7106(a)(2)(B) of the Statute. We reach the same conclusion as to this
provision.
Assign Work
For the reasons expressed in conjunction with Provision 1, we reject
the Agency's argument that section 7106(b)(3) does not apply to
"routine" exercises of management rights. We find that the provision is
intended as an "arrangement" for employees who are adversely affected by
the Agency's exercise of its right to assign work in circumstances where
it calls employees who are off duty back to perform work. Balancing the
respective interests of the Agency and the employees, we find that the
proposed arrangement excessively interfers with the Agency's right to
assign work and is, therefore, not within the duty to bargain, as
explained below.
The provision absolutely prohibits the Agency from requiring
employees to perform additional tasks -- other than the specific one(s)
for which they had been called back -- while they are on callback
overtime, without regard to the Agency's needs. Thus, in addition to
foreclosing the assignment of "busy work," the provision would also
foreclose the assignment of work for which the Agency might have a
legitimate need at the time. On the other hand, the provision could
serve to limit the amount of time which the employee was required to
spend at the work site when called back, thus limiting the extent of the
intrusion into the employee's personal time. However, the intrusion
into their personal time is somewhat mitigated by their being paid on an
overtime basis and being guaranteed a minimum of 2 hours of such pay.
In view of these circumstances we see the negative impact on the
Agency's right to assign work is disproportionate to the additional
benefit which the provision would afford employees by requiring their
release upon completion of the task for which they were called back.
Moreover, we cannot conclude that the nature and extent of the adversity
suffered by employees as a consequence of the Agency's exercise of its
right to call them back is particularly severe especially in view of the
fact that, as the Union acknowledges, call back is an infrequent
occurrence. Compare National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA No.4 (1986) (Provision 2)
(the severity of impact of a reduction-in-force on employees).
Balancing the detriment to the Agency's ability to exercise its right
to assign work and to perform its mission effectively and efficiently
against the extent to which employees would be benefited by the
provision, we conclude that the provision interferes excessively with
management's right and is not an appropriate arrangement which is
negotiable under section 7106(b)(3).
The Authority members disagree as to the negotiability of this
provision. The decision and order on Provision 4 and Chairman Calhoun's
dissent immediately follow this decision.
Article XXI, Section 5
The Employer agrees that any employee in the unit requested to
perform temporarily the duties of a higher job classification for
more than thirty (30) days will be compensated at the appropriate
higher rate of pay for the period served. The effective date of
such promotion will be in accordance with applicable regulations.
At the end of such assignment, the employee will revert to the
former job classification and pay grade. When it is anticipated
that the higher level vacancy will extend over a protracted period
of time, such temporary promotion will be rotated among available
qualified employees every ninety (90) days.
The Agency asserts that, by requiring it to rotate assignments to a
position when a temporary promotion is involved, this provision
conflicts with its right under section 7106(a)(2)(B) to assign work. It
claims that the provision is not an "arrangement" under section
7106(b)(3) because bargaining unit employees suffer no adverse effect
from a management decision to temporarily promote one of them. The
Agency further asserts that, even assuming that the provision could be
construed as an "arrangement," it is not "appropriate" because it
excessively interferes with the exercise of management's right by
stripping the Agency of discretion as to whether to continue a
particular employee in an assignment. It would also detrimentally
affect the continuity of the Agency's operations by requiring periodic
changing of the employee assigned to a particular project. Thus,
management could be forced under this provision to replace an employee
who has not yet finished a project or assignment with another who
requires a break-in period to achieve the same level of effectiveness.
The Union asserts that because the provision requires only that
management rotate employees it has determined are qualified for a
particular assignment, the provision constitutes a procedure under
section 7106(b)(2) or, alternatively, is an appropriate arrangement for
employees adversely affected by being denied the career enhancing
opportunities and higher pay attendant to a temporary promotion which
management gave to another employee. Moreover, the Union claims that
the possible presence of favoritism in such actions further serves to
adversely affect such employees. The Union contends that the
provision's only impact on the Agency's rights is that it would not be
free to retain one employee in a temporary promotion for more than 90
days. It further claims that this impact would be offset by the fact
that the work involved would be accomplished by a succession of
employees whom management had determined to be qualified. Consequently,
more employees would share in the benefits of temporary promotion. The
Union asserts that the effect on efficiency of operations would be
minimized because the employees eligible for rotation would have to meet
the Agency's qualifications requirements.
Its Management Rights
The Agency disapproved only the last sentence of this provision.
Therefore, our ruling is limited to that portion of the provision.
The disputed portion of this provision is to the same effect as
Provision 4 in American Federation of Government Employees, AFL-CIO,
Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19
FLRA 640 (1985). That provision, which required 30-day rotation of
temporary promotions, was held to be inconsistent with the Agency's
right under 7106(a)(2)(B) to assign work: it would have required
management to reassign work after the specified period. For the same
reasons, Provison 5 is inconsistent with section 7106(a)(2)(B). See
also, American Federation of Government Employees, AFL-CIO, Local 916
and Tinker Air Force Base, Oklahoma, 7 FLRA 292 (1981) (Provision II).
In that case the Authority found that a provision which required that
details to positions of the same or lower grade not exceed 60 days
conflicted with management's right to assign employees. The Authority
noted that inherent in the right to assign employees is the right to
determtne the duration of the assignment.
Negotiable under Section 7106(b)(3)
Here, we may assume that the disputed sentence was intended to
ameliorate an adverse effect perceived by a qualified, available
bargaining unit employee when another bargaining unit employee is
temporarily promoted to a higher level position and retained at the
higher level for more than 90 days. In the circumstances covered,
however, the proposed amelioration would eliminate management's
discretion to require a particular employee to complete an assignment
extending beyond 90 days. This severe limitation on management's
ability to exercise its rights would apply without regard for the degree
of inefficiency or disruptiveness the Agency might determine it would
engender in specific situations. Such a proposed amelioration
excessively interferes with the exercise of management's rights to
direct employees and to assign work. See International Plate Printers,
Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and
Department of the Treasury, Bureau of Engraving and Printing,
Washington, D.C., 25 FLRA 113 (1987) (Proposals 6, 7, and 8).
consequently, it does not constitute an appropriate arrangement within
the meaning of section 7106(b)(3). See AFGE, Local 2782 v. FLRA, 702
F.2d 1183, 1188 (D.C. Cir. 1983).
The disputed portion of Provision 5 directly and excessively
interferes with the Agency's right under section 7106(a)(2)(A) and (B)
to assign work and direct employees and is not an appropriate
arrangement within the meaning of section 7106(b)(3). It is therefore
not within the duty to bargain.
Article XXI, Section 8
A rating panel will be established to rate and rank applicants and
screen out all but five highly qualified candidates, the names
will be furnished to the selecttng official. For each additional
vacancy, one additional name will be added to the highly qualified
list. The selection list will be prepared by listing the highly
qualified candidates in alphabetical order. The selecting
official shall select from among the highly qualified candidates.
The Agency asserts that this provision conflicts with section
7106(a)(2)(C) and Federal Personnel Manual (FPM) Chapter 335 -- a
Government-wide regulation -- since it would prevent management from
either declining to make a selection or selecting from another
appropriate source. As to the Union's assertion that the provision is
an appropriate arrangement, the Agency claims that it is not aimed at
ameliorating adverse effects flowing from the exercise of management
rights but at establishing prior limitations on how the right will be
exercised.
The Union argues that the provision is susceptible to two
interpretations. One being that it would limit the highly qualified
candidates, from among whom the Agency would make its selection to
bargaining unit employees. The other being that the Agency could choose
from candidates from all appropriate sources who had been processed by
the rating panel. According to the Union the second interpretation
would preserve the Agency's option to select from any appropriate
source. Under this latter interpretation, all that is required is that
applicants from all sources be submitted for rating and ranking by the
panel. The Union contends that this requirement is merely procedural
and does not violate the Statute.
It also argues that the provision is negotiable as an appropriate
arrangement for employees adversely affected by the Agency's exercise of
its rights to select employees for vacancies. The adverse effect which
the provision is intended to ameliorate is the possibility that some
employees might fail to be selected for positions because other
employees have been held to a lesser standard in terms of
qualifications. Although it acknowledges that the provision may limit
the number of candidates from which the Agency may make its selection,
it argues that the provision has no impact on the Agency's right to
select from all appropriate sources. Lastly, the Union argues that FPM
Chapter 335 is inapplicable inasmuch as nonappropriated fund employees
are involved in this case.
The Agency disapproved only the last sentence of this provision. Our
ruling here is limited to that portion of this provision.
7106(a)(2)(C) to Select from Other Appropriate Sources
The express language of this provision restricts the Agency when
filling vacancies to making selections from a certificate of "highly
qualified" candidates. It is to the same effect as Proposal 2 in
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 8 FLRA 460 (1982).
Like that proposal, this provision would limit the Agency to making
selections from the "source" specified in section 7106(a)(2)(C)(i) and
as a corollory would prevent it from making selections directly from
other appropriate sources, such as reemployment or repromotion
eligibles, or transfer or reinstatement, under section
7106(a)(2)(C)(ii). We reject the Union's assertion that the provision
is merely procedural. Rather, it goes to the substance of section
7106(a)(2)(C) which, among other things, preserves as a management right
the option of making selections directly from sources other than
certificates of qualified candidates. We find that Provision 6
conflicts with the Agency's rights under section 7106(a)(2)(C).
We reject the Agency's assertion that this provision is rendered
nonnegotiable because it conflicts with FPM, Chapter 335. That portion
of the FPM does not apply to nonappropriated fund employees as are
involved in this case. See 5 U.S.C. Section 2105(c).
Affected Employees
The Union intends this provision to ameliorate the adverse effect
perceived by an employee who is not selected for a position because
another candidate has been held to a lesser qualifications standard.
Assuming for the purpose of this decision that this is an adverse effect
within the meaning of section 7106(b)(3), the provision goes too far.
It would funnel candidates for every selection action, from every
appropriate source, through a rating panel. This proposed amelioration,
thus, would (1) apply without regard to whether any bargaining unit
employee would be adversely affected by a particular selection action,
and (2) totally preclude the Agency from making any selection directly
from other appropriate sources. Consequently, the Union has not
established that the provision relates to only adverse effects on
employees. Moreover, the proposed amelioration, which totally abrogates
management's right to make selections directly from other appropriate
sources under any circumstances, does not constitute an appropriate
arrangement under section 7106(b)(3). See AFGE, Local 2782 v. FLRA, 702
F.2d 1183, 1188 (D.C. Cir. 1983).
The disputed portion of Provision 6 is not within the duty to bargain
because it violates management's right under section 7106(a)(2)(C)(ii)
to make selections from appropriate sources and does not constitute a
negotiable procedure under section 7106(b)(2) or appropriate arrangement
under section 7106(b)(3).
Article XXIV, Sections 3 and 5
(Section 3)
The Employer will provide employees on-the-job cross-training to
the maximum extent practicable, using techniques such as
interchanging employees.
(Section 5)
If new equipment is installed or new procedures implemented
appropriate training will be provided affected employees.
The Agency asserts that both sections of Provision 7 interfere with
the Agency's right under section 7106(a)(2)(B) to assign work in that
both require the Agency to assign training to employees. Additionally,
it asserts that neither are negotiable as appropriate arrangements. As
to section 3, it argues that any relationship between the provision and
the exercise of a management right is remote and speculative at best.
Consequently, it asserts that the provision does not meet the test for
establishing that a proposal is intended as an arrangement for employees
adversely affected by a management right. It argues that any contention
that section 5 constitutes an arrangement for employees adversely
affected by the exercise of a management right is similarly speculative
in nature. Even assuming that it does constitute an arrangement, the
Agency argues that section 5 excessively interferes with the exercise of
its rights.
The Union asserts that both sections are negotiable under section
7106(b)(3) as appropriate arrangements. According to the Union, section
3 is intended as an arrangement for employees who work in circumstances
where they are faced with constantly changing priorities and
reorganizations. In such an environment, section 3 would provide
employees with enhanced job security and career potential. The Union
asserts that the impact on the Agency's management right is limited by
the qualification that on-the-job cross-training will be provided only
to the maximum extent practicable. It argues that the benefits to
employees outweigh the negative impact on the Agency's rights.
As to section 5, the Union asserts that it is intended as an
arrangement for employees adversely affected by the introduction of
technological and operational changes. It further asserts that the
extent and the nature of the training provided as a consequence of
section 5 would be directly proportional to the extent and nature of the
change which results in the need for the training.
Right to Assign Work
The Agency's right to assign work under section 7106(a)(2)(B)
encompasses the assignment of training. See, for example, American
Federation of Government Employees, Local 3231 and Social Security
Administration, 22 FLRA No. 92 (1986) (Proposal 3). Therefore, we
conclude that Provision 7 is inconsistent with the Agency's right to
assign work.
Section 7106(b)(3)
Based on the Union's explanation, Section 3 is (1) not focused on any
particular exercise of a management right; and (2) not conditioned on
any management right being exercised. Rather it is intended to
generally broaden employee skills and qualifications in the hope that
employees will thereby have more options available to them in the event
that reorganizations and realignments occur in the future.
Since, section 3 would apply regardless of whether any management
right was ever exercised and since the exercise of the management rights
which might be involved is purely speculative, we find no basis to
conclude that section 3 is an "arrangement" for employees who are
adversely affected by the exercise of a management right within the
meaning of section 7106(b)(3).
Section 5, unlike section 3, is directly linked to an actual exercise
of management rights -- that is, those associated with the introduction
of new equipment and new operational procedures. It would only apply in
the event that such rights were exercised. Unlike section 3, we find
that section 5 addresses reasonably foreseeable adverse effects
associated with the Agency's requirement that employees master and use
different equipment or operating procedures.
In this regard the section is limited to requiring that "appropriate"
training be given "affected" employees. Thus, the section requires
training to be given only where there is a need for it, not in all
circumstances without regard to its relevance or necessity. Also, the
nature of the training would be directly tied to the changes in employee
work requirements. This section thus is to the same effect as Proposal
3 in American Federation of Government Employees, Local 3231 and Social
Security Administration, 22 FLRA No. 92 (1986), which the Authority
found constituted an arrangement within the meaning of section
7106(b)(3). Based on the foregoing, we conclude that section 5 also is
an arrangement.
In balancing the respective interests of the Agency and employees we
find that section 5 does not excessively interfere with the Agency's
right to assign work. As noted, the type and nature of the training
required is expressly linked to the change in employee work
requirements. The section does not dictate either the type or extent of
the training to be given. Thus, the Agency retains discretion in this
regard -- subject to arbitral review as to whether "appropriate"
training has been provided. Nor does the section dictate when training
will be given. In our view it is reasonable to conclude that section 5
will promote an affected employee's ability to adapt to the introduction
of new equipment and procedures and to function effectively and
efficiently. It can also reasonably be expected to reduce the negative
effects on employee performance of the introduction of new equipment and
procedures.
The negative impact of section 5 on the Agency's right to assign work
is limited. In the first place, the Agency must provide only training
"appropriate" to the nature and extent of the change resulting from its
introduction of new equipment and procedures. In the second place, the
negative impact which might otherwise arise would be offset, at least in
part, by the greater efficiency and productivity which can reasonably be
expected from employees who are adequately trained in the use of new
equipment and procedures.
We conclude that the negative impact on the Agency's right to assign
work is outweighed by the benefits to employees of of being afforded
appropriate training where new equipment and procedures are introduced.
We find that section 5 is negotiable under section 7106(b)(3).
Article XXX, Section 3
The parties agree that all employees shall be afforded a
reasonable opportunity to self-improvement and that efforts will
be made to utilize the present skills of employees. The Employer
agrees to provide opportunities for employees to improve their
skills through on-the-job training, work-study programs, or other
training programs including redesigning jobs where and if feasible
so that they may perform at their highest potential and advance in
accordance with the abilities.
The Agency asserts that this provision conflicts with its right under
section 7106(a)(2)(B) to assign work. The Union asserts that this
provision is negotiable for the "same reasons as in Clauses 8, 9, and
10." /3/ The union has made no substantive argument in its Response as
to the negotiability of "Clause 8." As to "clauses 9 and 10," the Union
essentially argued that those provisions were negotiable under section
7106 (b)(3) as appropriate arrangements for employees adversely affected
by the exercise of management rights. It also argues that the second
sentence is negotiable under section 7106(b)(2) as a procedure. The
Union argues that the provision does not mandate that the Agency take
specific actions but only provide employees the opportunity to display
their existing qualifications and to improve their skills by providing
training and job redesign where feasible.
Because the Agency disapproved only the second sentence of this
provision, our ruling is limited to that portion of this provision.
Section 7106.
This provision is part of an article relating to Equal Employment
Opportunity. It would require the Agency to make available to employees
opportunities to improve their skills through training programs and job
redesign where feasible. The Union states that the training
opportunities encompassed by the provision "are meant primarily to be
provided from ongoing activity at the worksite." It further states that
the provision "anticipates that existing work situations would be
exploited to provide such (training) opportunities." As to job redesign,
the Union describes the requirement upon the Agency as being limited to
those circumstances where it is feasible: the provision would not
require job redesign if the Agency reasonably decides that it is not
feasible. In its petition the Union states that:
An example would be where jobs could just as easily be designed as
career-ladder instead of 'dead end' jobs. The clause would
require the employer to at least take a look at job families where
there is a logical progression of duties and provide for
structured job classification which could deliver promotions. The
clause would not require the employer to implement such plans if
the implementation was not consistent with the accomplishment of
the mission in an effective and efficient manner.
Union Petition at 5.
The Authority has consistently held that the right to assign work
under section 7106(a)(2)(B) encompasses training assigned during duty
hours. For example, National Association of Air Traffic Specialists and
Department of Transportation, Federal Aviation Administration, 6 FLRA
588 (1981) (Proposals 1 through 3). Thus a proposal which requires
training to be given during duty hours directly interferes with that
right. In contrast, the Authority has held that a proposal which did
not mandate training during duty hours, or otherwise deprive the agency
of discretion concerning the methodology, scheduling, duration, type,
content, or other characteristics of the training itself was negotiable.
American Federation of Government Employees, AFL-0CIO, Social Security
Local No. 1760 and Department of Health and Human Services, Social
Security Administration, 9 FLRA 813 (1982) (Proposal 2).
As to job redesign, the Authority has held that a proposal which
requires management to redesign jobs to create promotion opportunities
interferes with the rights to determine organization and to assign work.
American Federation of Government Employees, AFL-CIO Local 32, and
Office of Personnel Management, 17 FLRA 790 (1985) (Proposal 4). On the
other hand, the Authority found that a proposal which merely identified
job redesign as one alternative which could be followed for utilizing
the present skills of employees was negotiable. In so finding, the
Authority noted that a proposal to redesign a position or job in a
particular manner would conflict with the right to assign work.
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command Wright-Patterson Air Force Base, Ohio, 2 FLRA 604,
620-621, (1980), aff'd sub nom. Department of Defense v. FLRA, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
Based on the language of this provision and the Union's statements as
to its intended meaning, we conclude that it would reguire the Agency to
(1) assign training during duty hours and (2) redesign jobs to provide
promotional opportunities. The Union suggests that the insertion of the
phrase "where and if feasible" sufficiently preserves the Agency's
discretion and renders this otherwise nonnegotiable provision
negotiable. We rejected the same claims in connection with similarly
qualifying language as to Provisions 1 and 2. We reject this argument
for the same reasons. Since the provision places a substantive
limitation on the Agency's discretion to determine whether it will
assign training during duty hours and or redesign jobs, it directly
interferes with the Agency's rights to determine its organization and to
assign work. In view of this substantive interference, we reject the
Union's argument that the provision is procedural and negotiable under
section 7106(b)(2).
"Arrangement" under Section 7106(b)(3)
The Union relies on the arguments it made in conjunction with
Provision 7 to support its claim that this provision is negotiable as an
appropriate arrangement under section 7106(b)(3). We find that this
provision, like section 3 of Provision 7, does not constitute an
"arrangement" within the meaning of section 7106(b)(3) because the Union
has not established how this provision relates to only adverse effects
on employees produced by the exercise of management rights.
Consequently, we conclude here, as we did concerning section 3 of
Provision 7, that the Union has failed to identify a basis for us to
conclude that this provision constitutes an arrangement within the
meaning of section 7106(b)(3).
The disputed portion of Provision 8 directly interferes with the
Agency's rights under section 7106(a) to determine its organization and
to assign work. The Union has failed to establish that the provision is
an "arrangement" for employees adversely affected by the exercise of
management rights. Therefore, we find that the disputed portion of
Provision 8 is not within the duty to bargain.
Article XXXIX, Section 3
If neither party serves notice to negotiate this Agreement, the
Agreement shall be automatically renewed for a one year period,
subject to the due delay on the part of either party. Prior to
meeting with the arbitrator, the parties will meet to define the
issue to be placed in arbitration.
The Agency contends that this provision conflicts with an Agency
regulation for which a compelling need exists. The Union contends that
the Agency has not established that the regulation relied upon meets the
criteria for determining compelling need.
The regulation on which the Agency relies, DOD Civilian Personnel
Manual (CPM) 1400.25-M, CPM Chapter 711, Subchapter 3-4.b, provides in
relevant part as follows:
(4) Substantive Government-wide regulations as well as
regulations which are issued within DOD, and which do not merely
transmit requirements imposed by law, do not over-ride any
provisions of a negotiated agreement during the term of that
agreement. However, each agreement must be brought into
conformance with applicable published policies and regulations of
the primary national subdivision and of the DOD and with
regulations of appropriate non-DOD authorities, at the time it is
renogotiated, or when it is renewed or extended and such renewal
of extension will result in its being in effect for more than 3
years and 90 days since it was last brought into conformance with
applicable laws and regulations.
(6) No agreement will exceed 3 years in duration from its
effective date. An agreement may be renewed or extended for a
specific period (not to exceed 3 years for each renewal or
extension) where the parties so agree, subject to the requirement
set forth in subparagraph (4) above.
The Agency asserts that, if it does not choose to renegotiate the
agreement, Provision 9 would prevent it from bringing the agreement into
conformance with Government-wide rules and regulations and Agency
regulations for which a compelling need exists. Consequently, the
provision conflicts with the above-quoted regulation.
We find that, inasmuch as Provision 9 allows either party the option
of seeking renegotiation of the agreement, the Agency has a sufficient
opportunity to comply with the requirement of its regulation. We reject
the Agency's suggestion that invoking its option would effectively
compel it to negotiate matters which are not within the duty to bargain
-- that is, matters which are inconsistent with applicable regulations.
Moreover, we note that the Agency acknowledges that although it does not
have any obligation to negotiate over whether to delete provisions which
are in conflict with applicable regulations, it does have an obligation
to negotiate over "the impact and implementation of the change." We also
note that the Union states that nothing in Provision 9 forecloses a
renewed agreement from being subjected to agency-head review under
section 7114(c) of the Statute. Such review would afford the Agency the
opportunity to bring the agreement into conformance with governing
regulation. Based on these circumstances we find that the Agency has
not established that Provision 9 is inconsistent with the regulatory
provisions on which the Agency relies.
In view of the absence of any inconsistency, we do not pass upon the
issue of whether there is a compelling need for the regulatory
provisions.
The Agency has not established that Provision 9 is inconsistent with
an agency regulation for which a compelling need exists. It is,
therefore, within the duty to bargain.
The Agency must rescind its disapproval of Provisions 7 (section 5)
and 9. /4/ The Union's petition for review concerning Provisions 1, 2,
3, 5, 6, 7 (section 3) and 8 is dismissed.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Article XIII, Section 3
Accumulation of Vacation Leave. The maximum amount of accumulated
vacation leave that may be carried over from one leave year to the
next will be 240 hours. Vacation leave in excess of 240 hours
which has not been used by the end of the leave (sic) will be
forfeited, except that upon certification by the employer that an
eligible employee has been denied the privilege to take vacation
leave, he shall be paid cash in lieu of the vacation not taken.
The Agency asserts that this provision concerns a money-related
fringe benefit and, therefore, does not relate to conditions of
employment within the meaning of the Statute. It also contends that it
is inconsistent with an agency regulation for which a compelling need
exists.
The Union asserts that provision concerns conditions of employment
and that the Agency has not demonstrated that a compelling need exists
for its regulation.
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), we held that nothing in the Statute, or its legislative
history, bars negotiation of proposals relating to pay and fringe
benefits insofar as (1) the matters proposed are not specifically
provided for by laws and are within the discretion of the agency and (2)
the proposals are not otherwise inconsistent with law, Government-wide
rule or regulation or an agency regulation for which a compelling need
exists. Based on the reasons expressed in that decision we reject the
Agency's argument here that Provision 4 is not within the duty to
bargain simply because it concerns a money-related fringe benefit. /5/
Exists for Its Regulations
As the compelling need, the Agency argues that the proposal is
inconsistent with paragraph 2b(1) of SECNAV Instruction 5300.22A, Navy
and Marine Corps Personnel Policy Manual for Nonappropriated Fund
Instrumentalities, which it characterizes as providing for payments for
unused annual leave in very limited circumstances.
The Agency contends that its regulatory provision meets the
Authority's criterion for determining compelling need which is found 5
CFR Section 2424.11(a). That is, it claims that the regulation is
essential, as distinguished from helpful or desirable, to the
accomplishment of its mission in a manner which is consistent with the
requirements of an effective and efficient government. In support it
states but does not demonstrate that its regulation is necessary to
minimize the overhead employment costs of operating the NAF system and
reflects the need to maintain a viable NAF system. See Lexington-Blue
Grass Army Depot, Lexington, Kentucky and American Federation of
Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6 (1986), in which
the Authority held that effectiveness and efficiency are not to be
measured solely in monetary terms.
To establish that a proposal is nonnegotiable on the basis of
compelling need, an agency must (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal, and (3) demonstrate that its regulation is supported
by a compelling need with reference to the Authority's illustrative
standards set forth in section 2424.11 of its Regulations. Generalized
and conclusionary reasoning does not support a finding of compelling
need. American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No.
104 (1986) (Union Proposal 7).
We find that the Agency has presented nothing more than generalized
and conclusionary statements to support its contention that a compelling
need exists for its regulation. Thus, we must find that the Agency has
not met its burden of demonstrating that its regulation is essential, as
distinguished from merely being helpful or desirable, under 5 CFR
Section 2424.11(a), as it claims. See American Federation of Government
Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air
Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454 (1980).
In view of this finding, it is unnecessary to pass upon the Agency's
argument that the provision and its regulation are inconsistent.
We find that Provision 4 concerns a condition of employment and does
not conflict with an agency regulation for which a compelling need
exists. Absent any other basis for finding the provision nonnegotiable,
we find it is within the duty to bargain.
The Agency shall rescind its disapproval of Provision 4. /6/
Issued, Washington, D.C., November 6, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Proposal 4 concerns accumulation of and cash payments for annual
leave, a money-related fringe benefit, for Nonappropriated Fund
Instrumentality employees. In my opinion in American Federation of
Government Employees, AFL-CIO, Local 1897 and Department of the Air
Force, Elgin Air Force Base, Florida, 24 FLRA 377, 390 (1986), I stated
that in the absence of a clear expression of Congressional intent to
make wages and money-related fringe benefits negotiable, I would find
that they are not within the duty to bargain. I found no such
expression in that case, which also concerned NAF employees, and I find
none here. Accordingly, I would find that Proposal 4 is nonnegotiable
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Authority granted a request by the Agency to supplement its
statement of position. The Agency's request was limited to addressing
arguments raised by the Union for the first time in its Response, that
certain of the provisions in dispute were negotiable as appropriate
arrangements under section 7106(b)(3). The Authority provided the Union
the opportunity to respond to the Agency's supplemental statement.
However, the Union neither responded within the allotted time limit nor
requested an extension to time. Subsequent to the expiration of the
established time limit the Union requested permission to submit a
"supplemental submission," based on its contention that the Agency's
supplemental statement introduced several new matters. In view of the
fact that the Union had previously been provided an opportunity to
respond to the Agency's supplemental statement and failed to do so, we
deny the Union's request to submit a "supplemental statement" on the
matter.
(2) The parties have presented arguments regarding the consistency of
their positions with the statutory provision in title 5, U.S. Code,
governing callback -- those found at U.S.C. Section 5542. Inasmuch as
this statutory provision does not apply to non-appropriated fund
employees, the arguments are not germane to this proposal. 5 U.S.C.
Section 2105. Consequently, they will not be addressed further in this
decision.
(3) The Agency has withdrawn its disapproval of "Clause 8." "Clause
9" is Provision 7 (section 3) and "Clause 10" is Provision 7 (section
5).
(4) In finding that these provisions are within the duty to bargain,
we make no judgment as to their merits.
(5) In view of our decision, we do not reach the issue of whether an
agency head in disapproving a provision of a locally negotiated
agreement under section 7114(c), is precluded from relying on a
contention that the provision at issue does not concern a matter
affecting conditions of employment. See generally the decision of the
Federal Labor Relations Council in National Federation of Federal
Employees, Local 1745 and Veterans Administration Data Processing
Center, Austin, Texas, 5 FLRC 784, 786-89 (1977). Cf. National
Association of Government Employees, Local R4-75 and U.S. Department of
the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No 7
(1986).
(6) In finding that this provision is within the duty to bargain, we
make no judgment as to its merits.
29 FLRA NO. 125
AFGE and SSA (Smith, Arbitrator), Case No. 0-AR-1336, (Decided
November 6, 1987)
7122(a)
ARBITRATION EXCEPTIONS, ARBITRATOR:
ARBITRATOR FAILED TO CONDUCT A FAIR HEARING
BIAS AND/OR HOSTILE, ARBITRATOR WAS
CONFLICT OF INTEREST -- AWARD VS. ARB'S COMPENSATION
ARBITRATOR ERRED BY:
FACTUAL FINDINGS
ARBITRATOR EXCEEDED HIS AUTHORITY
ARBITRATION EXCEPTIONS, AWARD:
AWARD FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT
ARBITRATION AWARDS, MODIFIED BY AUTHORITY
ARBITRATION AWARDS, REVIEW OF, NO BASIS FOR REVIEW
CONTRACT INTERPRETATION, DISAGREEMENT WITH ARBITRATOR
FINDINGS OF FACT, DISAGREEMENT WITH ARBITRATOR'S
ARBITRATOR, AUTHORITY OF
CONFLICT OF INTEREST
ARBITRATION AWARDS THAT MAY AFFECT ARBITRATOR'S COMPENSATION
OFFICIAL TIME
This case is one of several disputes submitted by the parties to the
Arbitrator essentially concerning official time for employees'
representational activities. By agreement of the parties, a two-phase
arbitration process was established to resolve the basic dispute and the
resulting individual grievances. The first phase involved the
interpretation of the official time provisions of the Statute and the
parties' collective bargaining agreement. In the second phase, the
Arbitrator held hearings to resolve, by bench decisions when
practicable, specific grievances pending in the various regions of the
Agency. The exceptions in this case were filed to three cease and
desist orders rendered by the Arbitrator concerning the Agency's failure
to comply with certain of his earlier awards, reaffirming his earlier
awards, and ordering the Agency to cease and desist from its
noncompliance.
First Exception -- As to the contention that the orders are deficient
because the Arbitrator denied it a fair hearing, that he exceeded his
authority, that the orders do not draw their essence from the agreement,
and that the Arbitrator erred in his factual findings, the Authority
concluded that the Agency had failed to establish that the Arbitrator's
award is deficient. The Authority viewed the Agency's assertions as
constituting nothing more than disagreement with the Arbitrator's
findings of fact and interpretation and application of the agreement.
"In essence, they are an attempt to relitigate the matter before the
Authority.
Second Exception -- The Agency contends that the Arbitrator's order
is deficient on three grounds: (1) the Arbitrator was biased because he
refused to permit the Agency to select another arbitrator to determine
arbitrability and declared himself to be a permanent arbitrator of all
pending and future grievances; (2) the Arbitrator exceeded his
authority because he ordered the Agency to cease and desist from
selecting separate arbitrators to resolve grievances; and, (3) the
order does not draw its essence from the agreement because the agreement
provides that only the grieving party may invoke arbitration and the
Arbitrator's order allows the Union to invoke arbitration in
Agency-filed grievances. The Authority decided that the dispute
requires that the Arbitrator's order be set aside. In reaching their
conclusion, the Authority emphasized four points. First, the issue in
the case is one of first impression and is fundamentally different from
other issues involving an arbitrator's authority to hear and decide
cases. Second, the decision should not be interpreted to require the
disqualification of an arbitrator in every circumstance where the
arbitrator's ruling may affect his compensation. Third, they did not
find that the Arbitrator was actually biased in his interpretation of
the agreement. In the Authority's view, the record did not permit an
evaluation of the Arbitrator's conclusion. Moreover, the deficiency in
the case does not relate to the validity of the Arbitrator's
determination. It relates to his disqualification from addressing the
matter of his authority by reason of his impermissible self-interest.
In conclusion the Authority noted the long-standing and evident
rancor between the parties over the issue in the arbitration proceeding
and urged the parties to expend all available effort to resolve the
dispute bilaterally. However, recognizing that resolution may require
third-party assistance, the Authority directed the parties to submit the
dispute concerning the nature and extent of the Arbitrator's authority
to another neutral arbitrator. Further, they were directed that the
process be accomplished within 30 days from the date of the Decision,
and, additionally, to request that the arbitrator schedule proceedings
so as to resolve the dispute as quickly as possible. The parties were
urged to consider using the services of the Federal Mediation Service
and the American Arbitration Association in this process.
Member McKee dissented, disagreeing with the conclusion that the
nature of the dispute requires that the cease and desist order requires
that the entire order be set aside. She also disagreed with the
disposition of the dispute, most particularly directing the parties to
submit the dispute concerning the nature and extent of the Arbitrator's
authority in this matter to another arbitrator if the parties are unable
or unwilling to resolve the dispute. Member McKee viewed the present
record was adequate to permit the Authority to rule with an acceptable
degree of confidence or, if necessary, have the record supplemented
through Authority processes. On the merits, Member McKee would find
that the Arbitrator was without authority to preclude the Agency from
selecting separate arbitrators, but would deny the other exceptions to
the cease and desist orders.
Case No. 0-AR-1336
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Union
SOCIAL SECURITY ADMINISTRATION
Agency
This matter is before the Authority on exceptions to the award of
Arbitrator Justin C. Smith 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. /1/
This case is one of several in a dispute submitted by the parties to
the Arbitrator essentially concerning official time for employees'
representational activities. By agreement of the parties, a two-phase
arbitration process was established to resolve the basic dispute and the
resulting individual grievances. The first phase of the process
involved the interpretation of the official time provisions of the
Statute and the parties' collective bargaining agreement.
In the second phase, the Arbitrator held hearings to resolve, by
bench decisions when practicable, specific grievances pending in the
various regions of the Agency. Subsequent to resolving a number of
issues by bench decisions, the Arbitrator held hearings at the Union's
request to address whether the Agency had in fact complied with his
earlier bench decisions. The exceptions in this case have been filed to
three cease and desist orders rendered on March 30, 1987. In these
orders the Arbitrator generally ruled that the Agency had failed to
comply with certain of his earlier awards, reaffirmed his earlier
awards, and ordered the Agency to cease and desist from its
noncompliance.
The Agency contends that each of the Arbitrator's cease and desist
orders is deficient because the Arbitrator denied it a fair hearing and
exceeded his authority, the orders do not draw their essence from the
parties' collective bargaining agreement, and the Arbitrator erred in
his factual findings.
Except as otherwise concluded in this case, we find that the Agency
has failed to establish that the Arbitrator's award is deficient. The
Agency's assertions constitute nothing more than disagreement with the
Arbitrator's findings of fact and interpretation and application of the
parties' agreement. In essence, they are an attempt to relitigate the
matter before the Authority. Such assertions provide no basis for
finding the orders deficient under the Statute. For example, U.S.
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 22 FLRA No 16
(1986), request for reconsideration denied, (Aug. 15, 1986); American
Federation of Government Employees and Social Security Administration,
25 FLRA No 12 (1987), request for reconsideration denied, 25 FLRA No. 32
(1987); Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
25 FLRA No. 33 (1987), request for reconsideration denied, 27 FLRA No 22
(1987). The Agency's exception must be denied.
The Members disagree regarding the second exception to the
Arbitrator's Award. The Decision on this exception immediately follows
this Decision, along with Member McKee's dissent.
In the second cease and desist order the Arbitrator ordered the
Agency to:
cease and desist from improperly denying official time,
restricting access to photocopy facilities, restricting space and
facilities, improperly disciplining or otherwise
harassing/retaliating against Union lead counsel and her Technical
Assistants in the performance of their legitimate representational
duties.
He Agency makes a number of specific contentions in regard to various
portions of this order.
1. The Agency must cease and desist from improperly denying official
time.
The Agency contends that this portion of the order is contrary to
management's reserved rights under section 7106 to assign work, assign
and direct employees, to determine the numbers, types and grades of
employees assigned to its organizational subdivision, work project or
tour of duty even in emergencies. The Agency incorporates by reference
its arguments in support of similar exceptions to another award of
Arbitrator Smith filed with the Authority and docketed as Case No.
0-AR-1352. In its exceptions to the award of Arbitrator Smith in Case
No. 1352 the Agency argues that the Arbitrator ruled that the Union lead
counsel, Gayla Reiter, would receive 100% of official time for the life
of the parties' agreement regardless of what is reasonable for the
representational duties involved or the Agency's workload requirements.
2. The Agency must cease and desist from restricting access to
photocopying facilities, space and facilities.
The Agency contends that in this portion of the order the Arbitrator
exceeded his authority because the order was neither based on a
violation of the parties' agreement nor on an established past practice
of providing Union officials with a photocopy machine.
3. The Agency must cease and desist from improperly disciplining or
otherwise harassing/retaliating against Union lead counsel and her
Technical Assistants in the performance of their legitimate
representational duties.
The Agency contends that this portion of the order is deficient on
three grounds: (1) it does not draw its essence from the parties'
agreement because it substitutes the subjective standard of "improper"
for the contractual standard of "just cause" for discipline; (2) it is
contrary to section 7106(a)(2)(A) of the Statute because it does not
allow the Agency to discipline employees who are Union officials; and,
(3) the Arbitrator exceeded his authority because the order attempts to
protect unknown and unnamed employees who have not filed grievances.
We find that the grounds asserted by the Agency in this exception for
finding the order deficient are without merit. More specifically:
1. We find that the Agency has failed to establish that the
Arbitrator's order is contrary to section 7106 of the Statute. In this
portion of the order, the Arbitrator ordered the Agency to cease and
desist from improperly denying official time under the terms of the
parties' collective bargaining agreement which was negotiated consistent
with section 7131(d) of the Statute. We have specifically held that
section 7131(d) of the Statute "carves out an exception" to management's
right to assign work and that official time negotiated under section
7131(d) does not violate management's right to assign work
notwithstanding other provisions of the Statute. See Military Entrance
Processing Station, Los Angeles, California and American Federation of
Government Employees, Local 2866, AFL-CIO, 25 FLRA No. 57 (1987), slip
op. at 4. See also Department of Health and Human Services, Social
Security Administration and American Federation of Government Employees,
AFL-CIO, 27 FLRA No. 22 (1987), slip op. at 4.
It is clear that the Arbitrator did not order the Agency to approve
any and all requests for official time. Rather, it is clear that the
Arbitrator ordered the Agency to approve only proper requests for
official time in accordance with its obligation under the collective
bargaining agreement as interpreted by the Arbitrator. The award does
not in any way affect the Agency's rights to direct and assign
employees, assign work, to establish tours of duty, or to determine the
numbers, types and grades of employees as the Agency contends.
Moreover, the Agency has failed to make any arguments in support of its
contentions that the order violates the provisions of section 7106 other
than the arguments it made in support of its exceptions in Case No.
0-AR-1352. The portions of the Arbitrator's award excepted to in Case
No. 0-AR-1352, and which the Agency's arguments in that case support,
are not part of the cease and desist order before us in this case and we
decline to address them. Accordingly, this contention must be denied.
2. We find that the Agency has failed to establish that the
Arbitrator's order is deficient as alleged. Contrary to the Agency's
argument that the Arbitrator ordered that a photocopy machine must be
provided to the Union, in this portion of the order the Arbitrator
required that the Agency must cease and desist from restricting access
to photocopy facilities based on his previous interpretation of the
parties' agreement and on his findings that the parties' established
past practice allowed the Union unrestricted access to the office
photocopy machine. See Department of Health and Human Services, Social
Security Administration and American Federation of Government Employees,
AFL-CIO, 27 FLRA No 54 (1987), slip op. at 6-7. Moreover, the Agency
acknowledges in its exception that the Union representatives in this
case have been permitted to use the photocopy facilities and that Union
counsel was given excess space. Agency Statement in Support of
Exceptions at 15. Thus, the thrust of the Agency's exception
constitutes nothing more than disagreement with the Arbitrator's
interpretation and application of the pertinent provisions of the
parties' collective bargaining agreement. It is well established that
such disagreement does not provide a basis for finding an award
deficient. Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
25 FLRA No. 33 (1987), slip op. at 5, request for reconsideration
denied, 27 FLRA No. 22 (1987). Accordingly, this contention must be
denied.
3. We find that the Agency has failed to establish that the order is
deficient as alleged. In regard to the Agency's argument that the order
does not draw its essence from the parties' collective bargaining
agreement because it substitutes the subjective standard of "improper"
for the contractual standard of "just cause" for discipline, it is clear
that the Agency has misconstrued the Arbitrator's order. Rather than
substituting the standard of improper for the standard of just cause for
discipline in the parties' agreement, the order merely requires the
Agency to apply the contractual just cause standard properly, that is,
in accordance with the parties' collective bargaining agreement. We
conclude that the Agency's allegation constitutes nothing more than
disagreement with the Arbitrator's interpretation of the parties'
agreement and, therefore, that it provides no basis for finding the
order deficient.
In regard to the Agency's argument that the order is contrary to
section 7106(a)(2)(A) of the Statute, the Agency has again misconstrued
the Arbitrator's order. The order does not in any way preclude the
Agency from disciplining employees who are union officials. Rather, the
order, as noted previously, only requires that any discipline must be in
accordance with the terms of the parties' agreement. Again, the
Agency's allegation constitutes nothing more than disagreement with the
Arbitrator's interpretation of the parties' collective bargaining
agreement and therefore, does not provide a basis for finding the award
deficient.
In regard to the Agency's argument that the Arbitrator exceeded his
authority because he attempts to protect unknown and unnamed employees
who have not filed grievances, the Agency has misconstrued the order.
The order clearly requires the Agency to cease and desist from
improperly disciplining or otherwise harassing or retaliating against
Union lead counsel and her technical assistants. The award in no manner
applies to any unknown or unnamed individuals. Accordingly, the Agency
has failed to establish the order is deficient as alleged and its
contentions must be denied.
Accordingly, this exception must be denied.
In the third cease and desist order the Arbitrator ordered that the
Agency:
cease and desist from taking any action against Mary Ellen Shea
pending a full and complete presentation of the matter to the
Arbitrator at the earliest possible date. /2/
The Agency contends the Arbitrator's order is deficient on three
grounds: (1) the Arbitrator denied the Agency a fair hearing because
the Arbitrator entered the order based upon ex parte communication with
the Union and without giving the agency an opportunity to present its
case; (2) the order is contrary to section 7106(a)(2)(A) because it
prevents the Agency from acting at all with respect to disciplining Ms.
Shea for her failure to return to work as ordered; and (3) the
Arbitrator exceeded his authority because he entered the order without
having found a violation of the collective bargaining agreement or
having the issue of Ms. Shea's entitlement to LWOP properly before him.
We find that the grounds asserted by the Agency in this exception for
finding the award deficient are without merit. More specifically:
1. We find that the Agency has failed to establish that it was
denied a fair hearing. The thrust of the Agency's exception, that it
was denied a fair hearing because the Arbitrator entered the order based
on an ex parte communication with the Union and without giving the
Agency an opportunity to present its case, is disagreement with the
manner in which the Arbitrator conducted the hearing. It is well
established that an Arbitrator has considerable latitude in the conduct
of a hearing. The fact that an arbitrator conducted the hearing in a
manner which one party finds objectionable does not support a contention
that the Arbitrator denied the party a fair hearing. U.S. Department of
Health and Human Services, Social Security Administration and American
Federation of Government Employees, Local 547, 24 FLRA No. 93 (1986).
Accordingly, this contention must be denied.
2. We find that the Agency has failed to establish that the order is
contrary to section 7106(a)(2)(A). The Arbitrator's order requires the
Agency to cease and desist from taking any action against Ms. Shea
"pending a full and complete presentation of the matter to the
Arbitrator." In our view, nothing in the Arbitrator's order prevents the
Agency from exercising its right under section 7106(a)(2)(A). Rather,
the order merely stays any Agency action against Ms. Shea pending the
outcome of his review and determination on Ms. Shea's right to LWOP
under the parties' agreement. The Authority has consistently held in
resolving negotiability disputes that proposals which stay management
actions pending the completion of the negotiated grievance procedure or
other applicable appellate procedures are within the duty to bargain
under the Statute. See, for example, American Federation of Government
Employees, AFL-CIO, Local 1760 and Department of Health and Human
Services, Social Security Administration. 28 FLRA No. 26 (1987)
(Provision 4), slip op. at 8; American Federation of Government
Employees, AFL-CIO, Council 214 and Department of the Air Force,
Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34
(1986) (Proposal 2), slip op. at 3-8. Since the Arbitrator's order in
this case does not interfere with the Agency's exercise of its rights
under section 7106(a)(2)(A), this contention must be denied.
3. We find that the Agency has failed to establish that the
Arbitrator exceeded his authority. There is no support in the record
for the contention that the Arbitrator ruled on a matter which was not
before him as part of the overall proceeding. Contrary to the Agency's
contention, Ms. Shea's entitlement to LWOP in lieu of official time was
specifically put in issue and addressed by the parties in the course of
the overall arbitration proceeding. See Arbitrator's Order Directing
the Social Security Administration to Cease and Desist from Certain
Activities (#3) at 1, paragraph 3; 25 FLRA No. 33, slip op. at 2 n.1.
Moreover the Arbitrator ordered the Agency to cease and desist from
taking any action against Ms. Shea until he had an opportunity to rule
upon a provision in the parties' agreement which assertedly required
LWOP in similar circumstances and to determine its applicability to the
facts of the case before him. The Agency's exception constitutes
nothing more than disagreement with the Arbitrator's resolution of the
issue of Ms. Shea's entitlement to LWOP and generally with his reasoning
and conclusions based on the evidence and testimony before him.
Consequently, the contention does not provide a basis for finding the
award deficient and must be denied. See Federal Correctional
Institution, Petersburg, Virginia and American Federation of Government
Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983).
For the reasons stated above, the Agency's exceptions are denied.
Issued, Washington, D.C., November 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
As it relates to this exception, the Arbitrator made the following
findings and entered the following order:
(1) S.S.A. and A.F.G.E.'S agreement to arbitrate all official
time issues via A.A.A. case 74-30-0228-82 requires this arbitrator
to resolve all official time disputes covered by the 31 broad
issues of the original grievance which arise during the term of
the parties' collective bargaining agreement.
(2) All grievances and/or disputes (including disciplinary
actions taken as a result of official time disputes) arising
concerning application of the aforementioned official time
provisions and which are not resolved during the grievance
procedure, must be referred to this arbitrator for resolution
under A.A.A. 74-30-0228-82.
Whereupon, the following order is entered:
It is hereby ordered that the Social Security Administration
cease and desist from selecting arbitrators to: (a) resolve
contractual official time language, and (b) resolve any individual
grievances or disputes involving official time which have been
placed before this arbitrator in A.A.A. case 74-30-0228-82. All
questions regarding application of official time contractual
language which has been interpreted by this Arbitrator must be
heard by this Arbitrator.
The Agency contends that the Arbitrator's order is deficient on three
grounds: (1) the Arbitrator was biased because he refused to permit the
Agency to select another arbitrator to determine the arbitrability of
the Agency-filed grievances and declared himself "to be a permanent
umpire of all pending and future grievances filed by the agency," Agency
Statement in Support of Exceptions at 10; (2) the Arbitrator exceeded
his authority because he ordered the Agency to cease and desist from
selecting separate arbitrators to resolve Agency-filed grievances; and,
(3) the order does not draw its essence from the parties' collective
bargaining agreement because the agreement provides that only the
grieving party may invoke arbitration and the Arbitrator's order allows
the Union to invoke arbitration in Agency-filed grievances.
The Agency contends that the Arbitrator's award is deficient because
the Arbitrator was biased, and cites in support of its contention the
court's decision in Pitta v. Hotel Association of New York City, 806
F.2d 419 (2d Cir. 1986). Under section 7122(a)(2), the Authority will
find an arbitration award deficient on "grounds similar to those applied
by Federal courts in private sector labor-management relations." For the
reasons discussed below we find that the Arbitrator's cease and desist
order must be set aside.
In Pitta, a dispute arose over whether the appointment of a
"permanent umpire" under a collective bargaining agreement had been
properly terminated. Id. at 420. The permanent umpire had decided that
his appointment had not been terminated. As stated by the court, the
appeal from a lower court ruling presented "the issue, rarely litigated,
whether an arbitrator may resolve a grievance that requires him to
interpret his own contract of employment to decide if he has been
validly dismissed." Id. After finding that the dispute was arbitrable,
the court vacated the arbitration award and directed the parties to
appoint another arbitrator to hear and decide the issue. The court
stated as follows:
Because the subject of the arbitrable grievance directly
concerns the arbitrator's own employment for what may be an
extended period of time, impermissible self-interest requires his
disqualification. In assessing "evident partiality," we need not
inquire into whether (the arbitrator) showed actual rather than
merely apparent bias. The relationship between a party and the
arbitrator may, in some circumstances, create a risk of unfairness
so inconsistent with the basic principles of justice that the
arbitration award must be automatically vacated.
Id. at 423-24.
The court emphasized the following:
We do not suggest that an arbitrator must recuse himself from
every decision that might have any bearing on his compensation.
Carried to extremes, such a rule would preclude an arbitrator,
compensated on a per diem basis, from adjudicating any request
that would continue a hearing an additional day, such as a request
to call additional witnesses. Such trivial concerns are to be
contrasted with a dispute concerning the employment of a
particular arbitrator for a considerable period of time at a
substantial salary.
Id.
In this case, it is clear that the Arbitrator's order is intended to
not only preclude the Agency from filing and pursuing grievances over
official time, it is also intended to require (1) all disciplinary
matters relating to the official time dispute to be heard by the
Arbitrator and (2) all "questions" regarding official time language to
be heard by the Arbitrator. Further, as is apparent from the
Arbitrator's findings, these requirements apply "during the term of the
parties' collective bargaining agreement." The Arbitrator based his
order on the parties' "agreement to arbitrate all official time issues"
in A.A.A. case 74-30-0228-82.
Like the situation in Pitta, the dispute in this case concerns the
Arbitrator's own employment for the duration of the collective
bargaining agreement. Thus, we conclude that the nature of the dispute
requires that the Arbitrator's order be set aside.
In reaching our conclusion, we emphasize four points. First, the
issue in this case is one of first impression and is fundamentally
different, in our view, from other issues involving an arbitrator's
authority to hear and decide cases. Second, like the court in Pitta,
our decision should not be interpreted to require the disqualification
of an arbitrator in every circumstance where the arbitrator's ruling may
affect his compensation. Third, we do not here find that the Arbitrator
was actually biased in his interpretation of the parties' agreement to
arbitrate in A.A.A. case 74-30-0228-82. Finally, we do not reach this
conclusion because we disagree with the Arbitrator's interpretation of
the parties' agreement. In our view, the record before us does not
permit an evaluation of the Arbitrator's conclusion. Moreover, the
deficiency in this case does not relate to the validity of the
Arbitrator's determination. It relates to his disqualification from
addressing the matter of his authority by reason of his impermissible
self-interest.
Section 7122 of the Statute provides that if the Authority finds that
an arbitration award is deficient, the Authority "may take such action
and make such recommendations concerning the award as it considers
necessary, consistent with applicable laws, rules, or regulations." In
fashioning appropriate action in this case we recognize that the
parties' dispute over the official time provisions of their collective
bargaining agreement is one of long-standing and evident rancor.
Further, it is one which has received much attention from third parties.
As such, we believe that the parties should expend all available
efforts to resolve this dispute bilaterally. At a minimum, the parties
should attempt agreement on the processing of this and related cases.
It is our hope that these discussions would resolve not only the issue
of how these cases are to be processed, but also the underlying issue of
how official time matters may be resolved without resort to arbitration.
We also recognize that the parties may be unable or unwilling to
reach agreement on these matters. In that event, the dispute must be
resolved by a third party. Similar to the court's finding in Pitta, we
find that the dispute over the Arbitrator's authority is arbitrable.
Accordingly, the parties are directed to submit the dispute concerning
the nature and extent of the Arbitrator's authority to another neutral
arbitrator. Further, we direct that this process be accomplished in an
expeditious matter. To that end, we direct the parties to select an
arbitrator within 30 days from the date of this Decision, and
additionally, to request that arbitrator to schedule proceedings so as
to resolve the dispute as quickly as possible. We urge the parties to
consider using the services of the Federal Mediation and Conciliation
Service and the American Arbitration Association in this process.
Issued, Washington, D.C., November 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee, dissenting, in part:
I disagree with the conclusion of the majority that the nature of the
dispute over the Arbitrator's cease and desist order requires that we
set aside the entire order. I also disagree with the majority's
disposition of the dispute, most particularly directing the parties to
submit the dispute concerning the nature and extent of the Arbitrator's
authority in this matter to another arbitrator if the parties are unable
or unwilling to resolve the dispute.
I believe that we have an obligation under the Statute to decide the
Agency's exception alleging that the Arbitrator exceeded his authority,
rather than directing the parties to refer the question of the extent of
that authority to another arbitrator.
Among the duties of the Authority under section 7105 of the Statute
is the duty to resolve exceptions to arbitration awards. Section
7105(a)(2) expressly provides: "The Authority shall, to the extent
provided in this chapter, and in accordance with (its) regulations . . .
(H) resolve exceptions to arbitrators' awards under section 7122 . . .
." In section 7122, Congress provided for review of exceptions to an
arbitrator's award by the Authority, not be other arbitrators. The
exclusivity of the Authority's review is further reflected in section
7123 and in the legislative history. In section 7123, Congress excluded
judicial review of awards except in a limited category of cases. The
legislative history further indicates Congress' intent that only the
Authority is authorized to review awards and that even Authority review
is to be very limited. The Conference Report accompanying the bill
which was signed into law as the Statute provides:
The Authority will only be authorized to review the award of the
arbitrator on very narrow grounds similar to the scope of judicial
review of an arbitrator's award in the private sector. In light
of the limited nature of the Authority's review, the conferees
determined it would be inappropriate for there to be subsequent
review by the court of appeals in such matters.
H. Rep. No. 95-1717, 95th Cong. 2d Sess. 153 (1978), reprinted in
Committee on Post Office and Civil Service, House of Representatives,
86th Cong., 1st Sess., Legislative History of the Federal Service
Labor-Management Relations Statute, Title VII of the Civil Service
Reform Act of 1978, Committee Print No. 96-7 at 821 (1979).
I believe that referring the question of Arbitrator Smith's
jurisdiction or authority to another arbitrator is tantamount to
referring the Agency's exception that Arbitrator Smith exceeded his
authority to that other arbitrator. It also effectively subjects
Arbitrator Smith's award in this matter to the review and judgment of
the other arbitrator. To me, such a referral is inconsistent with our
obligation under the Statute to decide exceptions and to determine
whether or not an award is deficient under the Statute. I do not
believe the role of the Authority is altered simply because of the size
and complexity of the dispute.
As a practical matter, it seems to me that the procedure established
by the majority for resolving the Agency's challenge to the Arbitrator's
authority will unnecessarily delay final resolution of the dispute. If
the parties are unable or unwilling to resolve the dispute, they will
require time to agree upon an arbitrator. That arbitrator will require
time to prepare for, hear and decide the dispute. Even expeditiously
accomplished, that process will result in further delay. It seems
likely that the party aggrieved by the new arbitrator's determination
will file exceptions with the Authority. We will then be faced with the
same question we are faced with today. Admittedly, the question would
come to us with a record developed by the new arbitrator, but the state
of that record is not assured.
I believe that the present record in this protracted proceeding is
adequate to permit us to rule with an acceptable degree of confidence.
If the majority is not satisfied with the record, rather than seek a
separate, uncontrolled record from another arbitration proceeding, I
would prefer that we supplement the existing record through our own
processes, by seeking additional briefs and supporting documents from
the parties under section 2429.26 of our Rules and Regulations and/or
requesting oral argument by the parties pursuant to section 2429.6 of
the Regulations.
As to the merits of the question of Arbitrator Smith's authority in
this matter, I conclude that he has authority only to decide claims and
grievances that are part of A.A.A. case 74-30-0228-82. The record
establishes that the case encompasses individual claims and grievances
submitted during three claims periods, disputes related to compliance
with the Arbitrator's bench awards concerning such claims and grievances
and disputes related to the proceedings before the Arbitrator in the
case.
The first claims period as established by the parties encompassed the
period between June 11, 1982, the date the parties' National Agreement
was executed, and June 1984. See Memorandum of Understanding dated May
1984, Exhibit 5, Case 0-AR-1207. American Federation of Government
Employees and Social Security Administration, 25 FLRA 173 (1987),
request for reconsideration denied, 25 FLRA 477 (1987). The second
claims period as established by the parties encompassed the period
between June 12, 1984, and September 10, 1985. See Memorandum of
Understanding dated July 1985, Exhibit 8, Case No. 0-AR-1207, 25 FLRA
173; Letter from Justin Smith to American Federation of Government
Employees and Social Security Administration, dated May 23, 1986,
Exhibit 13, Case No. 0-AR-1207, 25 FLRA 173.
A third claims period was established by the Arbitrator at the
request of the Union "to allow individuals adversely affected by any
improper official time denial or any other issue covered by this
grievance from June 11, 1982 through the close of the claims period
(9/12/86) to submit a claim." Arbitrator's Order dated July 14, 1986, at
2, Exhibit 15, Case No. 0-AR-1207, 25 FLRA 173. This claims period was
established because of the Arbitrator's continuing concern with what he
found to be the Agency's (1) pattern of noncompliance with his award,
(2) attempts to litigate and relitigate the Union's requests for
official time, (3) refusal to proceed to arbitration and its unilateral
withdrawal from arbitration proceedings, (4) aborted "offers . . . to
pay the claims," and (5) general refusal to adhere to the parties'
collective bargaining agreement. Arbitrator's Order dated July 14,
1986, at 2, Exhibit 15, Case No. 0-AR-1207, 25 FLRA 173; Letter from
Justin Smith dated May 23, 1986, Exhibit 13, Case No. 0-AR-1207, 25 FLRA
173.
The Agency conceded that the issue of whether certain claims and
disputes were subject to resolution by the Arbitrator was "procedural
only" and, therefore, invited the Arbitrator to determine the extent of
the claims periods based on the merits of the case and the record before
him. See July 8, 1986 transcript, Volume III, at 127-28, 138. See
also, July 8, 1986 transcript, Volume III, at 42-43. Based on the
evidence presented at the July 8, 1986 hearing, the Arbitrator responded
to the Union's request for an additional claims period and, as noted,
established the third claims period ending September 12, 1986. In my
view, the claims periods establish the extent of the Arbitrator's
jurisdiction. Therefore, I would conclude that the Agency is merely
disagreeing with the Arbitrator's findings of fact, his evaluation of
the evidence and testimony before him, his reasoning and conclusions,
and generally with his interpretation and application of the parties'
collective bargaining agreement. It is well established that such
disagreement does not provide a basis for finding an award deficient.
For example, Federal Correctional Institution, Petersburg, Virginia and
American Federation of Government Employees, Local 2052, Petersburg,
Virginia, 13 FLRA 108 (1983).
The Agency's subsequent exceptions to the Arbitrator's establishment
of a third claims period on the ground that he exceeded his authority
because he was functus officio and ruled on claims which were not part
of the grievance before him were denied by the Authority. In denying
the exceptions, the Authority first rejected the Agency's argument that
because it had agreed to pay certain claims based upon an earlier award
of the Arbitrator, the dispute was ended, the Arbitrator's function was
accomplished, and his jurisdiction exhausted. 25 FLRA 176. The
Authority specifically stated:
(i)t is clear from the record that prior to the first phase of
the arbitration the parties agreed that the Arbitrator was
authorized to resolve specific claims in the overall dispute in
the Agency's regional offices. Third, it is clear that the
Arbitrator retained jurisdiction to adjudicate all of the claims
in dispute. Fourth and finally, the record reflects that the
Arbitrator denied the Agency's motion to terminate the hearing
based in part on his concern over the Agency's persistent refusal
to apply his prior rulings either retroactively or prospectively
and because of the Agency's "blatant breach" of numerous aspects
of his earlier awards and its pattern of misconduct in this
matter. Consequently, the Agency has failed to establish in its
exception either that the Arbitrator was functus officio when he
rendered the bench awards in question or that the doctrine is even
applicable in this matter. See, for example, Patent and Trademark
Office and Patent Office Professional Association, 15 FLRA 990
(1984); American Federation of Government Employees, Local 1501
and McChord Air Force Base, Washington, 7 FLRA 424 (1981).
With regard to the Agency's assertion that the Arbitrator
exceeded his authority because he ruled on claims which were not
part of the grievance before him, it is clear that the grievances
resolved were integrally related to the dispute before him. There
is no support in the record for the contention that in resolving
those aspects of the dispute pending in the Agency's New York
Region he ruled on any matters which were not before him as part
of the overall grievance proceeding. It is therefore clear that
the Agency's assertions constitute nothing more than disagreement
with the Arbitrator's resolution of the issues before him and
generally with his interpretation and application of the parties'
collective bargaining agreement. Such disagreement provides no
basis for finding an award deficient under the Statute.
Accordingly, this exception must be denied.
25 FLRA 177.
Based on the record before me and the Authority's precedent in these
cases, I conclude that the Arbitrator has jurisdiction to resolve the
specific individual and Union claims and grievances which were filed
prior to September 12, 1986, and related issues, which are part of
A.A.A. Case 74-30-0228-2. Therefore, in my view, the Arbitrator has
jurisdiction to resolve (1) any specific claims and grievances filed
before September 12, 1986; (2) any questions which arise as to those
claims and grievances and concern compliance with his awards; and (3)
any questions related to the overall dispute, such as questions
concerning entitlement of Union representatives in the matter to office
space, telephone and postage expenses, and access to photocopy
equipment.
Therefore, I believe that to the extent the Arbitrator is merely
asserting his jurisdiction over such matters, the disputed cease and
desist order does not exceed the Arbitrator's authority in A.A.A. Case
74-30-0228-82. Thus, the Arbitrator does not exceed his authority by
ordering the Agency to cease and desist from seeking different rulings
from other arbitrators on specific claims or grievances he has already
specifically ruled upon. That conclusion is consistent with the
Statute. Under the Statute, the proper procedure for contesting and
arbitrator's award is through the filing of timely exceptions with the
Authority, not through seeking a different result in the same dispute by
a different arbitrator. This conclusion is also consistent with the
doctrine of res judicata, which precludes relitigation of disputes that
have already been decided on the merits. Further, the Arbitrator also
does not exceed his authority by ordering the Agency to cease and desist
from seeking rulings from other arbitrators on any remaining claims or
grievances that are still part of A.A.A. Case 74-30-0228-82 as described
above.
However, to the extent that the Arbitrator is asserting jurisdiction
over all disputes between the parties concerning official time,
including all grievances filed by the Agency and all grievances which
might be filed by individual employees or either party after September
12, 1986, involving interpretation and application of the official time
provisions of the parties' agreement, the Arbitrator has exceeded his
authority. Grievances and disputes which are not properly a part of
A.A.A. Case 74-30-0228-82, that is, those claims filed prior to
September 12, 1986, cannot be added to the case by a party unilaterally
or by the Arbitrator. The Arbitrator does not have jurisdiction to
decide such grievances.
Thus, the Arbitrator is without authority to preclude the Agency from
selecting separate arbitrators to resolve all Agency-filed grievances
concerning official time, to compel arbitration of all official time
grievances by himself, or to decide all questions regarding the
application of contractual official time language interpreted by the
Arbitrator now and for the life of the parties' agreement. To that
extent, the award is deficient and I would modify it to provide that the
Agency shall:
cease and desist from selecting separate arbitrators to resolve
any individual grievances or disputes which have been placed
before this Arbitrator in A.A.A. case 74-30-0228-82. All
questions regarding those particular grievances or disputes,
including questions regarding awards by this Arbitrator concerning
specific claims in this case which were filed prior to September
12, 1986, must be heard by this Arbitrator.
Additionally, I would deny the Agency's other exceptions to this
cease and desist order based on Authority precedent. For example, U.S.
Department of Health and Human Services, Social Security Administration
and American Federation of Government Employees, AFL-CIO, 22 FLRA 154
(1986), request for reconsideration denied, (August 15, 1986); American
Federation of Government Employees and Social Security Administration,
25 FLRA 173 (1987), request for reconsideration denied, 25 FLRA 477
(1987); Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, AFL-CIO,
25 FLRA 479 (1987), request for reconsideration denied, 27 FLRA 114
(1987).
Issued, Washington, D.C., November 6, 1987
/s/ Jean McKee, Member
(1) In its opposition, the Union requested that the Authority strike
as untimely the Agency's supplemental statement in support of its
exceptions and also addressed the merits of the exceptions. Because the
supplemental statement does not add any ground on which review of the
award is requested other than those grounds raised in the Agency's
timely filed exceptions, the Union's request is denied and we will
consider the Agency's supplemental statement.
(2) Ms. Shea had initially requested leave without pay (LWOP) to
attend Harvard University to obtain a master's degree in public
administration. The Agency denied the request for LWOP although the
parties' agreement assertedly provides that LWOP for such purposes will
normally be approved. Ms. Shea then requested official time which the
Agency approved conditioned upon the issue of entitlement to LWOP or
official time being resolved at arbitration. The parties submitted the
issue to arbitration. The Union sought tuition, fees, official time,
and travel and per diem expenses for Ms. Shea and alternatively argued
that the denial of LWOP was contrary to the parties' agreement and past
practice. The Arbitrator granted the remedy requested by the Union and
ordered that Ms. Shea attend the program on official time. The Agency
filed exceptions to the award with the Authority. In resolving the
Agency's exceptions, the Authority set aside the award noting that it
was not reaching the issue of Ms. Shea entitlement to LWOP since the
Arbitrator had not ruled on it. 25 FLRA No. 33, slip op. at 2 n.1.
After issuance of our decision, the Union requested that the arbitration
hearing be reconvened to address, among other things, Ms. Shea's
entitlement to LWOP. The Arbitrator's order in this case was issued as
an interim measure.
20 FLRA NO. 124
Service Employees International Union, Local 556 and Dep't of the
Army, U.S. Army Support Command, Hawaii, Fort Schafter, Hawaii, Case No.
0-NG-736, (Decided November 6, 1987)
7103(a)(14)(C)
7105(a)(2)(D) and (E)
COMPELLING NEED
CRITERIA
CONFLICT BETWEEN AGENCY-WIDE REGULATION AND PROPOSAL
NO CONFLICT BETWEEN AGENCY REGULATION AND PROPOSAL
ESSENTIAL TO THE ACCOMPLISHMENT OF THE AGENCY MISSION
ALLEGATION NOT ESTABLISHED BY AGENCY
MATTERS ALLEGED BARRED BY AN AGENCY REGULATION
FRINGE BENEFITS
HOURS OF WORK
FRINGE BENEFITS
MEDICAL EXPENSES / HEALTH INSURANCE
HOURS OF WORK
HOLIDAY
EMPLOYEE'S BIRTHDAY
NEGOTIABILITY PROCEDURE
STATEMENT OF POSITION (AGENCY)
SIGNER OF DOCUMENTS
PROCEDURE, FORUMS
FACTUAL ISSUES
With respect to a procedural contentions raised by the Union, the
Authority rejected that argument that the Agency's statement of position
was not properly before it because it was not signed by the Agency's
designated representative of record and that the Agency failed to
provide the Union with certain requested information relevant to the
negotiablity appeal. As to the latter, the Authority noted that such
issues should be raised in an unfair labor practice proceeding.
Proposals 2 -- At issue is a portion of a "Holiday" clause which
provides as a holiday an employee's birthday. The Authority concluded
that while the Agency had shown that the proposal conflicts with a cited
Agency regulation, it had presented nothing more than generalized and
conclusionary statements to support the contention that a compelling
need exists for the regulation. As the Agency had not met its burden of
demonstrating that the regulations are essential, as distinguished from
merely being helpful or desirable, under 5 C.F.R. sec. 2424.11(a), the
Agency has not provided a basis for finding the proposal nonnegotiable.
In a separate opinion Chairman Calhoun stated he would find the proposal
to be nonnegotiable, referencing his separate opinion in 24 FLRA 377.
Proposal 3 -- This proposal provided for the covering of employees by
a Temporary Disability Insurance plan at no cost to the employees, such
plan being in conformance with Hawaii (location of the activity) laws
governing such plans. The Authority initially noted that inasmuch as
leave benefits for these employees are not a matter specifically
provided by Federal statute, the matter at issue is not excepted from
the definition of conditions of employment under section 7103 (a)(14)(C)
of the Statute. The Authority rejected the Agency's contention that the
proposal is nonnegotiable in that it is violative of an Agency
regulation for which there is a compelling need. The Authority
concluded that the Agency had not demonstrated that the proposal
conflicts with the regulation. Accordingly, the proposal is within the
duty to bargain. In a separate opinion Chairman Calhoun stated he would
find the proposal to be nonnegotiable, referencing his separate opinion
in 24 FLRA 377.
Case No. 0-NG-736
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 556, AFL-CIO
Union
DEPARTMENT OF THE ARMY, UNITED STATES ARMY SUPPORT COMMAND, HAWAII,
FORT SCHAFTER, HAWAII
Agency
This case is before the Authority because of 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 seven Union proposals for Nonappropriated Fund (NAF)
employees. /1/
For the reasons discussed below, the Union's petition for review of
Proposals 4, 5, 6, 7 and 8 is dismissed. The Authority Members have
reached different conclusions concerning Proposals 2 and 3. The
decision and order on these proposals and Chairman Calhoun's dissenting
opinion immediately follow this decision.
First, the Agency's request to consolidate this case with Case No.
0-NG-750 was denied in Service Employees' International Union, Local
556, AFL-CIO and Department of the Army, U.S, Army Support Command,
Hawaii, Fort Schafter, Hawaii, 26 FLRA 380 (1987) (Fort Schafter)
(Chairman Calhoun dissenting on other matters), petition for review
filed sub nom. Department of the Navy, Marine Corps Exchange, Pearl
Harbor v. FLRA, Nos. 87-7220/87-7276 (9th Cir. May 21, 1987).
Second, the Union argues that the Agency's statement of position is
not properly before us because it was not signed by the Agency's
designated representative of record. The Authority rejected this
argument in Fort Schafter, 26 FLRA at 385, based on the reasoning in
Service Employees International Union, Local 556, AFL-CIO and Department
of the Navy Exchange, Pearl Harbor, Hawaii, 25 FLRA 796 (1987) (Chairman
Calhoun dissenting on other matters) petition for review filed sub nom.
Department of the Navy, Marine Corps Exchange, Pearl Harbor v. FLRA,
Nos. 87-7161/7226 (9th Cir. April 17, 1987). It is rejected here for
the same reasons.
Finally, the Union contends that the Agency failed to provide the
Union with relevant and pertinent information needed to fully present
its position. The Union had requested statistical data as to the number
of hours worked by intermittent employees and the length of time (in
months) that these employees worked for 2 past years. However, as the
Authority determined in Fort Schafter, 26 FLRA at 385, issues as to an
Agency's alleged failure to provide information should be raised in an
unfair labor practice proceeding, not a negotiability appeal.
The Authority Members have reached differing conclusions concerning
Proposals 2 and 3. The decision and order on these proposals and
Chairman Calhoun's dissenting opinion immediately follow this decision.
Intermittent employees will not be required to serve a
probationary period upon conversion to a regular part-time or
regular full-time position if the employee has been employed for a
period of six (6) months or more. If the employee has been
employed for less than six (6) months, such time will be credited
towards the six (6) month probationary period.
The Agency's position is that the proposal is inconsistent with
Agency regulations for which there is a compelling need. The Union
disputes this contention.
Proposal 4 concerns the 6-month probationary period applicable to
employees appointed to regular full-time and regular part-time
positions. The proposal provides that the probationary period will (1)
not apply to employees who served at least 6 months in an intermittent
position prior to their conversion; and (2) be offset by the amount of
time actually served by an intermittent who served fewer than 6 months.
We conclude that the provision is not negotiable because the Agency has
shown that the proposal conflicts with an Agency regulation for which
there is a compelling need.
The Agency regulation (AR 230-2 (June 1978) at 2-15) provides that an
employee receiving an "initial appointment" to a regular full-time or
regular part-time position must serve a probationary period. Applicable
Department of Defense regulations (DOD Instruction 1401.1-M (January
1981) at chapter II.B.2.f.(1)) set the length of the probationary period
at 6 months for NAF employees who are not at the management or executive
level. Proposal 4, on the other hand, eliminates or reduces the
probationary period for employees who served as intermittents prior to
receiving their initial appointments as "regular" employees. As such,
the proposal clearly conflicts with the Agency's regulations.
The Agency maintains that a compelling need exists for its
regulations because the probationary period is an essential part of the
hiring process. We agree.
In the competitive service, the importance of the 1-year probationary
period has been recognized by the courts. In Department of Justice v.
FLRA, 709 F.2d 704, 730 (D.C. Cir. 1983), the court stated the
following:
Congress has long recognized both that federal employees are due
certain procedural protections and that federal agencies must be
able to terminate employees for unacceptable work performance or
conduct. In accommodating these competing concerns, Congress
created the concept of the probationary term and authorized
agencies to terminate employees summarily during this period. It
saw summary terminations as essential to an effective and
efficient service, and it has repeatedly acted to preserve
agencies' discretion summarily to remove probationary employees.
For competitive service employees, the probationary period is
established by law and Government-wide regulation. See 5 U.S.C. Section
3321; 5 D.F.R. Section 315.801. The fact that the probationary period
for NAF employees is established by Agency regulation does not affect
the vital role that the probationary period plays with respect to new
appointees, in our view. Indeed, we stated in Service Employees'
International Union, Local 556, AFL-CIO and Department of the Navy,
Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA 801, 804-05 (1987):
(T)he probationary period serves the same purpose in NAF
employment that it does in the competitive service. It is a trial
employment period for the purpose of assessing a newly-hired
individual's conduct, reliability, and actual ability to function
in a position. It is part of the process by which management
determines whether a newly-hired employee should be retained
permanently. It provides the Agency with an opportunity to make
such judgment prior to affording employees procedural protections
established under Agency regulations or collective bargaining
agreements in the event of termination for unacceptable work
performance. As in the competitive service, the probationary
period is inextricably linked, in our view, with summary
termination.
In view of the court's finding that the probationary period in the
competitive service is essential to an effective and efficient service,
and the Authority's previous finding that the probationary period in the
NAF system serves the same purpose as it does in the competitive
service, we find that there is a compelling need for the Agency's
regulations. Accordingly, we find Proposal 4 to be nonnegotiable on
this basis.
In addition, we find that our decision in Marine Corps Exhange,
Kaneohe Bay, Hawaii, is applicable to the circumstances of this case.
In Kaneohe Bay, we found nonnegotiable a proposal which would have
limited the agency's right to summarily terminate a regular NAF employee
to the first 90-150 day segment of the 6-month probationary period. We
determined that the probationary period including summary termination
constituted an essential element of the agency's right to hire under
section 7106(a)(2)(A) of the Statute.
In this case, Proposal 4 eliminates that probationary period for new
appointees who previously served as intermittents for 6 months or more.
The fact that at the time of their conversion to "regular" status these
employees are not newly hired into the Agency but rather are newly hired
into regular employment is not dispositive, especially since
intermittent NAF employees do not serve a probationary period. Rather,
the important Agency interests previously identified by the Authority as
linked to the probationary period apply whether the employees has been
"hired" from outside the Government, or "selected" from the intermittent
category.
Retention register is defined as the list of employees, except
those employees with unsatisfactory ratings, who are serving in
the same competitive area and level. The groupings are in
descending order with respect to the employee's retention score.
Individuals in Groups I and II will not be separated from their
competitive level due to reduction in force until all temporary
employees and employees with unsatisfactory performance ratings
who are serving in the same competitive area and level have been
separated from their positions. The retention register shall
consist of the following groups of employees:
GROUP I. Regular full-time, regular part-time and regularly
scheduled intermittent employees who have completed their
probationary period.
GROUP II. Regular full-time, regular part-time, and regularly
scheduled intermittent employees serving their probationary
period.
Retention score is the number which reflects all the employee's
DOD NAFI service. The score shall be determined in the following
manner:
1. The employee will receive 1 point for each full year of
creditable service with each additional month of service being
represented by decimals. (i.e. three (3) years, eleven (11)
months of creditable service is represented by a retention score
of 3.11)
2. An employee will have four (.4) months added to their
retention score for any outstanding performance rating received
within the last three (3) years.
3. No other consideration will be used in determining employee
retention scores.
(The underscored portions of these proposals are in dispute.)
The Agency asserts that the Proposal 5 is outside the duty to bargain
because it directly concerns nonunit employees and implementation of the
requirements of the disputed language, regarding the order of separation
of types of employees in a RIF, would affect their employment
circumstances.
The Agency also argues that these proposals conflict with its rights
under section 7106(a)(2)(A) to assign, layoff and retain employees. The
Union contends that the proposals do not impinge on management's rights.
It asserts that Proposal 5 is intended to apply only "to employees in
the bargaining unit." Union Response at 18-19.
First, the Agency has not established that Proposal 5 would prescribe
conditions of employment for nonunit employees, or that its
implementation would affect the conditions of employment of such
employees. Based on the Union's explanation of the proposal, the
disputed language is intended to cover only employees who are members of
the Union's bargaining unit. Since the Union's explanation of its
proposal is consistent with the proposed language, we adopt the Union's
interpretation for purposes of this decision. We find that the proposal
does not apply to nonunit employees simply because, as contended by the
Agency, an Agency regulation provides that unit and nonunit employees
shall be included in the same competitive areas for RIF purposes. See
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 22 FLRA 478 (1986), petition for review
filed sub nom. AFGE, Local 32 v. FLRA, No. 86-1447 (D.C. Cir. August 11,
1986).
The Agency does not claim that the regulation upon which it relies is
either a Government-wide regulation or an Agency regulation for which a
compelling need exists under section 7117(a)(2) of the Statute and
section 2424.11 of our Regulations. Consequently, the Agency has not
provided any basis under the Statute for finding that the regulation can
bar negotiation of Proposal 5.
Second, these proposals are to the same effect as Proposal 3 in
Congressional Research Employees Association and Library of Congress,
Congressional Research Service, 25 FLRA 306 (1987). In that case
Proposal 3 provided that an employee's retention preference would be
determined by "type of appointment" ranked in the order specified in the
proposal. We found that the proposal would have established criteria
for determining the order by which employees would be retained in those
positions not eliminated in a RIF. We therefore found that, based on
reasoning set forth in the Authority's decision in National Treasury
Employees Union and Internal Revenue Service, 7 FLRA 275 (1981), the
proposal directly interfered with the agency's discretion to determine
which employees should be laid off in violation of management's right
under section 7106(a)(2)(A) to layoff employees. For the reasons set
forth in Library of Congress and Internal Revenue Service, we find that
these proposals likewise would directly interfere with the Agency's
right to layoff employees.
The Union in this case makes no assertion that these proposals are
negotiable as appropriate arrangements under section 7106(b)(3) and the
record in this case does not provide a basis for such a finding.
We note, however, that subsequent to the filings in this case the
Authority issued National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). In that case,
we adopted the "excessive interference" test for determining whether a
proposal is negotiable under section 7106(b)(3) and set forth the
factors we will consider in applying that test and determining whether a
proposed arrangement is appropriate for negotiation or whether it is
inappropriate because it excessively interferes with the exercise of
management's rights. In this connection, we direct the attention of the
parties to our decision in Library of Congress concerning Proposals 1-8.
Those proposals, like the present ones, were concerned with RIF
situations for employees who are not covered by the regulations issued
by the Office of Personnel Management set forth at 5 C.F.R. Part 351.
Instead, any RIF affecting them would be governed only by internal
regulations issued by the employing agency and the parties' agreement.
The decision on whether those proposals constitute appropriate
arrangements provides instructive examples of our consideration of
relevant factors to determine whether a particular proposal is an
appropriate arrangement.
Proposals 5, 6, and 7 directly interfere with the right to layoff and
are not within the duty to bargain. In view of this finding it is
unnecessary to address the Agency's other contentions as to their
nonnegotiability.
When it becomes necessary to reduce the hours of work for
employees within the same employment category, the following
procedure will be utilized:
Employee(s) hours will be reduced starting with the employee
with the least seniority by service date and continuing in an
ascending order. The employee with the least seniority will be
reduced to the minimum hours allowed for his job category before
another employee will be affected. The competitive area for a
reduction in hours will be a given shift within the work location.
The Agency asserts that this proposal requires that hours of work for
employees will be reduced solely on the basis of employees' seniority
rankings. Therefore, it argues that the proposal conflicts with
management's right to assign work, under section 7106(a)(2)(B) of the
Statute, because the proposal would preclude management from assigning
work to employees based on their qualifications.
The Union argues that the proposal does not affect management's right
to assign work because it applies to employees who are in the same job
category, working the same shift at the same location.
This proposal is nonnegotiable. As we explained in National Treasury
Employees Union and U.S. Customs Service, Northeast Region, 25 FLRA 731
(1987), union proposals which restrict management's discretion to assign
work to individual employees are nonnegotiable unless the record shows
that management retains the discretion to determine whether the
employees to whom the work may be assigned are equally capable of
performing the duties.
The record in this case does not satisfy this requirement. The
proposal does not state or imply that Agency management will retain its
discretion to determine the qualifications of employees to perform
necessary work when it contemplates the reduction of hours of work.
Further, the record does not show that Agency management has
consistently assigned the same work to each of the employees who would
be covered by the proposal. Accordingly, we conclude that this proposal
directly interferes with management's right, under section
7106(a)(2)(B), to assign work. See Independent Letterman Hospital
Workers' Union and Department of the Army, Nutrition Care, Letterman
Army Medical Center, 29 FLRA No. 43 (1987) (Proposal 1).
The petition for review insofar as it related to Proposals 4, 5, 6, 7
and 8 is dismissed.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Full-time, part-time, and regularly scheduled intermittent
employees shall observe the following holidays: First day of
January (New Year's Day) Third Monday of February (Presidents Day)
Last Monday of May (Memorial Day) Fourth day of July (Independence
Day) First Monday of September (Labor Day) Second Monday of
October (Discoverer's Day) Eleventh day of November (Veterans Day)
Fourth Thursday of November (Thanksgiving Day) Twenty-fifth day of
December (Christmas Day) The Employee's Birthday (If an employee's
birthday falls on February 29th, it will be celebrated on February
28th.
Any other day designated as a holiday by Federal statute or
Executive Order.
The Agency states that (1) the entire proposal is outside the duty to
bargain because it does not pertain to conditions of employment of
bargaining unit employees; and (2) the underscored portion is
inconsistent with Agency regulations for which there is a compelling
need. The Union disputes these contentions.
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
377 (1986) the Authority held that nothing in the Statute, or its
legislative history, bars negotiation of proposals relating to pay and
fringe benefits insofar as (1) the matters proposed are not specifically
provided for by law and are within the discretion of the agency and (2)
the proposals are not otherwise inconsistent with law, Government-wide
rule or regulation or an agency regulation for which a compelling need
exists. Based on that Lexington-Blue Grass Army Depot, Lexington,
Kentucky and American Federation of Government Employees, AFL-CIO, Local
894, 24 FLRA 50 (1986), in which we held that effectiveness and
efficiency are not to be measured solely in monetary terms.
We find that, while the Agency has shown a conflict between the
proposal and the regulations relied upon, it has presented nothing more
that generalized and conclusionary statements to support the contention
that a compelling need exists for the regulations. Thus, we find that
the Agency has not met its burden of demonstrating that the regulations
are essential, as distinguished from merely being helpful or desirable,
under 5 C.F.R. Section 2424.11(a), as claimed. See American Federation
of Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454
(1980). Consequently, we conclude that the Agency has not provided a
basis for finding the proposal nonnegotiable.
The Employer agrees to cover all regular full-time, regular
part-time, and regularly scheduled intermittent employees by a
Temporary Disability Insurance (TDI) plan at no cost to the
employees. The TDI plan will be in conformance with Hawaii State
laws governing such plans.
The Agency's position is that the proposal (1) is not sufficiently
specific; (2) does not pertain to conditions of employment of
bargaining unit employees, and (3) is inconsistent with Agency
regulations for which there is a compelling need. The Union disputes
these contentions.
We find that the proposal is sufficiently specific to enable us to
rule on its negotiability. Since there are no specific terms prescribed
for the plan except that it must conform to Hawaii State law, those
details are left to the analytical framework, we held the proposal in
that case, which required the agency to pay up to 75 percent of the
premium cost of health insurance for NAF employees, to be within the
duty to bargain.
The present case involves leave benefits for NAF employees, which are
matters not governed by law, but by agency regulations. Since leave
benefits for these employees are not a matter specifically provided for
by Federal statute, this matter is not excepted from the definition of
conditions of employment under section 7103(a)(14)(C) of the Statute.
Its Regulations to Bar Negotiations
To establish that a proposal is nonnegotiable on the basis of
compelling need, an agency must (1) identify a specific agency-wide
regulation; (2) show that there is a conflict between its regulation
and the proposal; and (3) demonstrate that its regulations are
supported by a compelling need with reference to the Authority's
illustrative standards set forth in section 2424.11 of the Authority's
Rules and Regulations (5 C.F.R. Section 2424.11). Generalized and
conclusionary reasoning does not 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
(1986) (Proposal 7).
The Agency asserts that, because the proposal would grant employees'
birthdays as a holiday and more generally would provide leave benefits
to intermittent employees, it conflicts with the Department of Defense
Personnel Policy Manual for Nonappropriated Fund Instrumentalities and
other Agency regulations authorizing leave benefits only to regular
full-time and regular part-time employees. The Agency contends that the
regulatory provisions meet the Authority's criterion for determining
compelling need set forth in 5 C.F.R. Section 2424.11(a). That is, it
claims that the regulations are essential, as distinguished from helpful
or desirable, to the accomplishment of their missions in a manner which
is consistent with the requirements of an effective and efficient
government. In support, the Agency states that the regulations are
necessary to maintain a viable NAF system. The Agency does not
demonstrate why this is so or provide any basis for finding that this
goal could not be achieved through means other than the regulations at
issue. It also fails to show that the proposals would result in
significant and unavoidable costs not offset by compensating benefits.
See discretion of the Agency. That is, any TDI plan conforming to
Hawaii State law would satisfy the proposal as it is worded.
The Agency argues that a temporary disability plan at no cost to the
employee is a fringe benefit, which is not a proper subject for
bargaining. We reject this argument for the same reasons detailed in
connection with Proposal 2 in section I.B.1. Nothing in the record
indicates that temporary disability insurance is specifically provided
by Federal statute for the employees involved. There also is nothing
which indicates that the proposal is inconsistent with law. Therefore,
under AFGE Local 1897 and Eglin AFB, 24 FLRA 377, the proposal concerns
a condition of employment.
Proposal and Agency Regulations
The Agency asserts that the proposal conflicts with Army Regulation
230-2 which provides:
15-1. Coverage. Civilian employees are authorized to receive
workers' compensation benefits when disability or death results
from injuries sustained on the job. Off-duty military personnel
are excluded from coverage.
In our view, however, the Agency has not demonstrated that the
proposal conflicts with the regulation. The proposal merely requires
the Agency to establish a TDI plan. As already noted, the details of
the plan such as how it would relate to workers' compensation is not
specified but is left to the Agency's discretion exercised in
conformance with Hawaii State law. Furthermore, the record provides
neither details concerning the impact of the existing regulation as to
NAF employees' receipt of workers' compensation benefits nor any
provision in Agency regulations which on its face conflicts with the
proposal. Generalized and conclusionary reasoning is not sufficient 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 (1986) (Proposal 7).
Consequently, the Agency's contention that the proposal conflicts with
an agency rule or regulation for which a compelling need exists has not
been sustained. Therefore, the proposal is within the duty to bargain.
The Agency must, upon request or as otherwise agreed to by the
parties, bargain on Proposals 2 and 3. /2/
Issued, Washington, D.C., November 6, 1987
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
I agree with my colleagues that Proposals 2 and 3 involve the same
issues as those in American Federation of Government Employees, AFL-CIO,
Local 1897 and Department of the Air Force, Eglin Air Force Base,
Florida, 24 FLRA 377 (1986). Therefore, for the reasons expressed in my
separate opinion in that case, I would find Proposals 2 and 3 to be
nonnegotiable.
Issued, Washington, D.C., November 6, 1987
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Agency withdrew its allegation of nonnegotiability with
regard to Proposals 1 and 9. Therefore, they will not be considered
further here.
(2) In deciding that these proposals are within the duty to bargain
we make no judgment as to their merits.
29 FLRA NO. 123
West Point Elementary School Teachers Association, NEA and The U.S.
Military Academy Elementary School, West Point, New York, Case No.
0-NG-1400, (Decided November 6, 1987)
7105(a)(2)(E)
7106(a)(2)(A) and (B)
7106(b)(2)
ASSIGN WORK
DUTIES AND WORK TO BE ASSIGNED
EMPLOYEE PREFERENCES
TIME ALLOCATION OF WORK ASSIGNMENTS
WHEN THE WORK OF A POSITION WILL BE PERFORMED
CODE OF FEDERAL REGULATIONS
48 C.F.R. 37.104
DISCIPLINE EMPLOYEES, RESERVED MANAGEMENT RIGHT
DELAY OF DISCIPLINE
LIMITATIONS ON AGENCY'S DISCRETION TO IMPOSE DISCIPLINE
NOTICE
PROCEDURES
EMPLOYEE
PERSONAL SERVICE CONTRACTS, EMPLOYEES UNDER
GRIEVANCE PROCEDURE, NEGOTIATED
SCOPE
PERSONAL SERVICE CONTRACT EMPLOYEES
HIRE, RESERVED MANAGEMENT RIGHT
POSITIONS, FILLING OF
HOURS OF WORK
HOLIDAY
MANAGEMENT RIGHTS: GENERALLY
ACCOMMODATIONS BETWEEN CONFLICTING RIGHTS AND OBLIGATIONS
DELAY OF MANAGEMENT FROM EXERCISING ITS RIGHTS
CONDITIONING MANAGEMENT'S RIGHTS ON:
EMPLOYEE PREFERENCES
MANNER IN WHICH MANAGEMENT'S RIGHTS WILL BE EXERCISED
PROPOSALS THAT SPECIFY HOW MANAGEMENT RIGHT WILL BE EXERCISED
POSITION ASSIGNMENTS OR FILLING OF
PERSONAL SERVICE CONTRACTS
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING
DISCIPLINE
UNITED STATES CODE
20 U.S.C. 241 (EDUCATIONAL PERSONNEL)
41 U.S.C. 601-13
The disputed proposals concern bargaining for a unit of professional
school personnel who are not employed either competitively or excepted
service, but rather pursuant to 20 U.S.C. sec. 241. That statutory
provision permits dependents schools to employ personnel without regard
to specific sections of title 5 of the U.S.C. pertaining to employment
in the competitive service.
Proposal 1 -- The proposal provides that unit employees shall not be
requested or required to enter into personal service contracts as a
condition of their employment. The Authority noted that notwithstanding
the fact that the Agency uses personal service contracts to employ
teachers, they still are employees for the purposes of the Statute. The
use of these contracts is inseparable from the decision to hire. By
prohibiting their use, the proposal requires management to use some
other appointment process, which the Authority concludes directly
interferes with the Agency's right to hire under section 7106(a)(2)(B).
The proposal constitutes a substantive rather than a procedural
limitation on the Agency's right to hire.
Proposal 2 -- The Authority found that two sentences of a
"professional compensation" proposal that condition assignment of
extracurricular activities on employee preference to directly interfere
with management's right to assign work and outside the duty to bargain.
In a dissent, Chairman Calhoun stated that he would find the proposal
nonnegotiable in that it pertains to compensation.
Proposal 3 -- This proposal would permit, among other things, the
negotiation of holidays and thus permitting negotiations on when the
assignment of instructional duties would or would not occur. The
Authority concluded that it was outside the duty to bargain under
section 7106(a)(2)(B) because it directly interferes with management's
right to assign work.
Proposal 4 -- At issue were three sections of a disciplinary action
proposal. Sections 1 and 2: (1) limit when discipline can be taken to
those instances where closer supervision or on the job training will not
achieve the corrective action sought; (2) determine the first step and
who will take it; (3) require the minimum discipline that can
reasonably be expected to attain the purpose for which the action is
initiated; and (4) require use of a guide when administering
discipline. The Authority concluded that the proposal directly
interfered with the Agency's right to discipline under section
7106(a)(2) and rejected the contention that it was an appropriate
arrangement in that the burden to the exercise of the agency's right
strongly outweighs the benefit to employees from the proposed
arrangement.
Section 5 of this proposal provided that whenever a unit employee is
furloughed for thirty days or less, reduced in grade or pay, removed by
discharge, or suspended for more than fourteen days, there would be
advance and final decision notices, the timing and content of which are
described in the proposal. The Authority found the section to be
negotiable procedure under section 7106(b)(2) which management will
observe in exercising their authority under section 7106(a)(2)(A) and
therefore negotiable.
Proposal 5 -- This is a grievance procedure which management
contended conflicts with the Contract Disputes Act of 1978, 41 U.S.C.
secs. 601-13, which Congress intended to be the exclusive method for
resolving disputes arising out of Government contracts. The Authority
rejected this contention, concluding that the Act did not preclude
negotiation of a grievance procedure which would encompass any matter
relating to the employment of an employee.
Case No. 0-NG-1400
WEST POINT ELEMENTARY SCHOOL TEACHERS ASSOCIATION, NEA
Union
THE UNITED STATES MILITARY ACADEMY ELEMENTARY SCHOOL WEST POINT, NEW
YORK
Activity
This case is before the Authority because of 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 five proposals. /1/
For the reasons stated below, we find that Section 5 of Proposal 4
and Proposal 5 are within the Agency's duty to bargain. The petition
for review of Proposal 1, Proposal 3, and the underlined portion of
Section 1 and all of Section 2 of Proposal 4, is dismissed. The Members
disagree over the negotiability of Section 1 of Proposal 2 and the
portions of Section 2 of Proposal 2 concerning compensation. The
Members agree that the second and third sentences of the first paragraph
of Section 2 of Proposal 2 are nonnegotiable.
The bargaining unit represented by the West Point Elementary School
Teachers Association (WPESTA) consists of all professional school
personnel employed by the United States Military Academy, West Point
Elementary School, West Point, New York. These bargaining unit
employees are not employed under either competitive or excepted service
appointments, but rather are employed pursuant to 20 U.S.C. Section 241.
That statutory provision permits dependents schools to employ personnel
without regard to specific sections of title 5 of the United States Code
pertaining to employment in the competitive service. See Fort Knox
Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119
(1987), petition for review filed sub. nom. Fort Knox Dependent Schools
v. FLRA, No. 87-3395 (6th Cir. April 4, 1987). The Agency has chosen to
use personal services contracts to employ these employees.
Unit Employees shall not be requested or required to enter into
personal service contracts as a condition of their employment.
The Agency asserts that Proposal 1 is nonnegotiable because it
interferes with its right under section 7106(a)(1) to determine its
organization. Specifically, the Agency argues that Proposal 1, by
prohibiting it from hiring employees under personal services contracts,
will prevent it from using the organizational structure that it deems
most effective. The Agency also contends that Proposal 1 interferes
with its rights under section 7106(a)(2)(B) to contract out and to
determine the personnel by which agency operations shall be conducted.
The Union contends that Proposal 1 was formulated in response to the
Agency's attempts to establish unilaterally unit employees' conditions
of employment. The Union notes that since the petition was filed, the
Authority issued its decision in Fort Knox Teachers Association and
Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203
(1987), petition for review filed sub nom. Board of Education of the
Fort Knox Dependents Schools v. FLRA, No. 87-3702 (6th Cir. July 24,
1987), finding that teachers are not "independent contractors" and that
the terms and conditions of employment of teachers employed under 20
U.S.C. Section 241 are negotiable. The Union argues further that
Agency's use of personal services contracts is in direct violation of
the Federal Acquisition Regulations, specifically 48 C.F.R. Section
37.104. The Union also claims that the proposal will not prohibit the
Agency from establishing the organizational structure that it deems most
effective because it does not interfere with management's right to
establish the number, types, and grades of employees at the West Point
Elementary School. Finally, the Union asserts that the proposal does
not interfere with the Agency's right to contract out because the
teachers are not "independent contractors."
We conclude that Proposal 1 is outside the duty to bargain for the
reasons set forth below.
The teachers in this case are employed under 20 U.S.C. Section 241,
which, as noted above, establishes a separate employment authority for
the Agency. Under that authority, the Agency may use whatever
employment process it chooses to hire these teachers, without regard to
title 5 hiring limitations. The Agency has chosen to use personal
services contracts rather than some other formal appointment process to
hire teachers.
The fact that the Agency uses personal services contracts to employ
teachers does not mean that these teachers are independent contractors
rather than employees for purposes of the Statute. Instead, it is well
established that teachers employed under 20 U.S.C. Section 241 are not
independent contractors but rather, employees of the Government subject
to all statutes pertaining to Government employment unless specifically
exempted. See American Federation of Government Employees, AFL-CIO,
Local 1770 and Department of the Army, Fort Bragg Dependent Schools,
Fort Bragg, North Carolina, 28 FLRA 493, 501 (1987), petition for review
filed sub nom. Department of the Army, Fort Bragg Dependent Schools,
Fort Bragg, North Carolina v. FLRA, No. 87-2661 (4th Cir. Sept. 22,
1987). As we have held previously and reaffirm here, the Agency may not
use personal services contracts to attempt to establish unilaterally
conditions of employment in derogation of the statutory collective
bargaining rights of those employees. Where employees subject to 20
U.S.C. Section 241 are in a unit of exclusive recognition, the content
of personal services contracts can not supersede collective bargaining
agreement provisions lawfully negotiated pursuant to the Statute.
The Agency's arguments for finding this proposal nonnegotiable --
that it interferes with the Agency's right to determine its organization
under section 7106(a)(1) and that it interferes with its right to
contract out and determine the personnel by which agency operations
shall be conducted under section 7106(a)(2)(B) -- in our view are all
based on the assumption that teachers are contract personnel. We have
rejected this assumption and therefore these arguments are inapposite.
Furthermore, on the record before us the Union has not demonstrated that
the use of personal services contracts by the Agency is illegal.
However, we find that Proposal 1 is outside the duty to bargain on a
different basis. We find that it directly interferes with the Agency's
right to hire under section 7106(a)(2)(A) of the Statute. Proposal 1
refers to unit employees who are required to enter into personal
services contracts every year. We view the use of personal services
contracts by the Agency to be inseparable from the decision to hire.
Proposal 1 prohibits the use of personal services contracts to hire
employees, thereby requiring management to use some other appointment
process. By prohibiting the Agency from using personal services
contracts, Proposal 1 constitutes a substantive rather than a procedural
limitation on the Agency's right to hire and thus directly interferes
with that right.
The Members of the Authority disagree over the negotiability of
Section 1 and the portions of Section 2 concerning compensation. The
Decision and Order and Chairman Calhoun's dissent with respect to those
portions of this proposal follow this decision. The Members of the
Authority are in agreement as to the negotiability of the second and
third sentences of Section 2, which state:
The Employer will make every effort to fill extracurricular
positions in accordance with the expressed preferences of the
qualified employees in the bargaining unit in the school. In the
event the Employer does not fill all available positions in
accordance with the preferences of the employees, then the
Employer agrees to actively seek qualified volunteers from the
bargaining unit at the school.
The Agency contends that this portion of Section 2 is outside the
duty to bargain because it interferes with its right to assign work.
Specifically, the Agency contends that the second and third sentences of
Section 2 prohibit the assignment of work to nonunit employees and do
not reserve to management the determination as to which employees meet
the requirements for specific assignments. Additionally, the Agency
contends that the proposal is nonnegotiable to the extent that it
requires a specific individual, namely the principal, to perform
specific duties. Finally, the Agency argues that the proposal prohibits
the assignment of certain duties during duty hours.
The Union claims that Section 2 does not interfere with the Agency's
right to assign employees and work. The Union asserts that the proposal
is not intended to prohibit management from assigning extracurricular
duties to nonunit employees. The Union also argues that the proposal
preserves management's right to determine employee qualifications for
extracurricular assignments while seeking volunteers and making such
assignments in accordance with the expressed preference of those
employees.
Finally, the Union contends that its proposal is not intended to
prohibit management from assigning extracurricular duties during the
normal instructional day. Rather, it is intended to ensure that unit
employees understand that such assignments are in addition to employees'
normal work load and require extra pay. However, the Union asserts that
if this language is offensive to management, and management does not
object to providing extra compensation for such duties whether performed
during the normal workday or after hours, it has no objection to
withdrawing this sentence from the proposal.
We find that the second and third sentences of Section 2 of Proposal
2 are outside the duty to bargain. These sentences are to the same
effect as Proposal 5a in Overseas Education Association, Inc. and
Department of Defense Dependents Schools, 29 FLRA No. 56 (1987). The
proposal in that case conditioned assignment of lunchtime monitoring
duties on employee preference. We held that this proposal directly
interfered with management's right to assign work and thus was outside
the duty to bargain under section 7106(a)(2)(B). Because the second and
third sentences of Proposal 2 also condition assignment of
extracurricular activities on employee preference, we find, for the
reasons set forth in Department of Defense Dependents Schools, that they
directly interfere with management's right to assign work and are
outside the duty to bargain.
We also find, for the reasons stated in the discussion of Proposal 5b
in 29 FLRA No. 56, that the addition of the phrase "every reasonable
effort" does not remove the limitation imposed on management's exercise
of its right to assign work because this phrase, when subjected to
arbitral review, would permit the substitution of an arbitrator's
judgment for that of management concerning whether management made
"every reasonable effort" to fill extracurricular positions in
accordance with the preferences of employees. Therefore, for the
reasons stated above, the second and third sentences of Section 2 of
Proposal 2 are outside the duty to bargain.
a. The Union recognizes that it is the function of the
Employer, after negotiating with the Union, to set the school
calendar annually.
c. By April 1 of each year, the Employer shall present to the
Union a proposed calendar for the following school year. The
Union may exercise its right to request negotiations with the
Employer over the proposed calendar. Such request for calendar
negotiations must be submitted to the Employer within fifteen (15)
days of the Union's receipt of the proposed calendar. If no
request is submitted, the calendar presented by the Employer
becomes effective.
The Agency contends that Proposal 3 violates its right to determine
its mission, to assign work, and to determine the method and means of
performing work. Additionally, it argues that the proposal directly
relates to conditions of employment for nonbargaining unit employees and
establishes conditions for others not represented by the Union. In this
regard, the Agency notes that a school calendar establishes when the
teachers, and other employees as well as students, report to work, when
the school year starts and ends, when the school breaks and holidays are
scheduled, and when the teachers receive training.
The Union claims that Proposal 3 will not interfere with management's
right to assign work because the proposal does not require negotiation
over the length of the school day or school year or how many days of
instruction would be provided for students. Rather, the intent is to
provide for negotiation over the beginning and end of the school year
and when holiday breaks would be scheduled. The Union argues that
starting and quitting times are negotiable under applicable Authority
precedent when they do not affect the numbers, types, or grades of
positions or personnel. The Union also claims that the proposal does
not affect the mission of the Agency because the same quality and
quantity of services will continue to be provided. The Union also
argues that the Agency has not demonstrated how its proposal affects the
"means" for performing work since it would have no effect on the
school's curriculum, instructional materials, class size, or any other
factor affecting education directly. With respect to the Agency's
argument that the proposal establishes conditions of employment for
nonbargaining unit employees and other individuals, the Union contends
the Agency has not established that the "vital interests" of other
school employees or third parties will be adversely affected.
For the reasons stated below, we find that Proposal 3 is outside the
duty to bargain.
In Overseas Education Association and Department of Defense
Dependents Schools, 29 FLRA No. 49 (1987) (Proposals 5, 8, and 9), we
concluded that proposals providing for the designation of certain
holidays were outside the duty to bargain because they prevented the
assignment of instructional duties during those days that contractually
would be designated as holidays. Like the proposals in the cited case,
Proposal 3 would permit, among other things, the negotiation of holidays
and thus would permit the negotiation of when the assignment of
instructional duties would or would not occur. Therefore, Proposal 3 is
outside the duty to bargain under section 7106(a)(2)(B) of the Statute
because it directly interferes with management's right to assign work.
Further, in American Federation of Government Employees, Local 3231
and Social Security Administration, 22 FLRA 868 (1987) (Proposal 1), we
concluded that the portion of that proposal proposing a change in office
hours directly interfered with the agency's right to determine its
mission under section 7106(a)(1) because part of the agency's mission
was to provide services to the public. Therefore, the decision
regarding the particular hours when the agency provided those services
to the public was mission-related. Similarly, the decision as to when
instructional services are to be provided to students is
mission-related. Therefore, Proposal 3 is nonnegotiable under section
7106(a)(1) of the Statute as well. /2/
1, 2 and 5 are set forth in the Appendix to this
decision. /3/
The Agency contends that the underlined portions of Section 1 and all
of Sections 2 and 5 violate its right to discipline employees under
section 7106(a)(2)(A) of the Statute and prohibit termination of Section
6 employees in accordance with their personal services contracts. The
Agency argues that the proposal restricts the imposition of discipline,
with certain exceptions, thereby prohibiting management from initiating
discipline for any reason not identified in the proposal. The Agency
argues further that the proposal prohibits discipline where closer
supervision would suffice, thereby improperly allowing the substitution
of an arbitrator's judgment concerning whether discipline or closer
supervision should be imposed. The Agency also contends that the
proposal prescribes certain disciplinary penalties for specific actions
and thereby substantively limits the Agency's discretion.
The Agency specifically argues that Section 5 is nonnegotiable to the
extent that it is intended to limit management's ability to terminate
Section 6 personnel in accordance with the employees' personal services
contracts and is thereby in violation of the Federal Acquisition
Regulations, 48 C.F.R. Sections 1.000 et seq., and the Contract Disputes
Act.
The Union contends that the intent of Proposal 4 is to ensure that
employees will not be disciplined except when discipline promotes the
efficiency of the service and to establish due process procedures for
employees subjected to discipline. The Union argues that Sections 1 and
2 establish general standards by which management's application of its
right to take disciplinary action against employees can be evaluated,
and that those sections do not prescribe or proscribe specific
discipline. The Union argues that this portion of its proposal thus
constitutes appropriate arrangements for employees adversely affected by
management's exercise of its rights and is within the duty to bargain
under section 7106(b)(3) of the Statute.
The Union contends that Section 5 is a negotiable procedure by which
management may exercise its right to take disciplinary action, and that
the Agency's use of personal service contracts does not limit the scope
of collective bargaining over subjects otherwise negotiable.
We conclude that the underlined portions of Section 1 and all of
Section 2 directly interfere with the Agency's right to discipline
employees under section 7106(a)(2). This portion of Proposal 4 is to
the same effect as Provision 22, subsection (a) in International Plate
Printers, Die Stampers and Engravers Union of North America AFL-CIO,
Local 2 and Department of Treasury, Bureau of Engraving and Printing,
Washington, D.C., 25 FLRA 113 (1986). The provision in that case
limited the agency in disciplining an employee to (1) selecting the
minimum discipline to achieve the proper disciplinary objective and (2)
using formal disciplinary measures only for more serious offenses.
Similarly, the underlined portions of the subject proposal: (1)
limit when discipline can be taken to those instances where closer
supervision or on the job training will not achieve the corrective
action sought; (2) determine the first step and who will take it; (3)
require the minimum discipline that can reasonably be expected to attain
the purpose for which the action is initiated; and (4) require use of a
guide when administering discipline. Like Provision 22 in Bureau of
Engraving and Printing, the underlined portions of Section 1 and all of
Section 2 either prescribe or proscribe specific discipline.
As to whether the underlined portions of Section 1 and all of Section
2 constitute appropriate arrangements, we conclude for the reasons
stated with respect to Provision 22, subsection (a) in Bureau of
Engraving and Printing that the underlined portions of Section 1 and all
of Section 2 excessively interfere with the Agency's right under section
7106(a)(2)(A) to take disciplinary action. In this regard, like
Provision 22, subsection (a) in Bureau of Engraving, the underlined
portions of Section 1 and all of Section 2 limit the agency's discretion
to take disciplinary action and its ability to determine the penalty it
considers appropriate by subjecting the agency's determination to
arbitral review as to whether the penalty was proper or whether formal
disciplinary measures were justified. As we stated in Bureau of
Engraving, at 133-34, although this restriction on the agency's ability
to determine the penalty constitutes the benefit to affected employees,
we find that the burden to the exercise of the agency's rights strongly
outweighs the benefit to employees from the proposed arrangement.
Therefore, we conclude that the underlined portions of Section 1 and all
of Section 2 are outside the Agency's duty to bargain.
We conclude that Section 5 of Proposal 4 is a negotiable procedure
under section 7106(b)(2) of the Statute which management officials of
the Agency will observe in exercising their authority under section
7106(a)(2)(A) to furlough, reduce in grade or pay, remove by discharge,
or suspend employees in the bargaining unit. Section 5 of Proposal 4 is
like Provisions 3, 4, and 5 of Local 3, International Federation of
Professional and Technical Engineers, AFL-CIO and Naval Sea Systems
Command Detachment, Pera (Crudes), Philadelphia, 25 FLRA 714 (1987), in
which we found that similar procedures were negotiable because they did
not prevent the agency from initiating discipline after the expiration
of the time frame. Like the proposed procedures found negotiable in
that case, the procedure proposed in this case would not prevent the
Agency from exercising its rights after the expiration of the procedural
time frame.
With respect to the Agency's contentions that Section 5 of Proposal 4
limits management's ability to terminate Section 6 personnel in
accordance with the employee's personal services contract and therefore
conflicts with applicable procurement law and regulations, we find for
the reasons set forth in Fort Bragg Dependent Schools, 28 FLRA 493
(Provisions 12 and 13), that Section 5 of Proposal 4 does not conflict
with law or regulation governing procurement. See also id., at 495-496.
The Agency contends that to the extent that Proposal 5 is intended to
include disputes arising under or out of personal services contracts, it
is nonnegotiable because it conflicts with the Contract Disputes Act of
1978, 41 U.S.C. Sections 601-13. The Agency takes the position that in
enacting the Contract Disputes Act, Congress intended the procedures
contained in the Act to be the exclusive method for resolving disputes
arising out of Government contracts.
The Union claims that the Authority's decisions in Fort Bragg
Dependent Schools, 28 FLRA 493 and Fort Knox Dependents Schools, 27 FLRA
203 are dispositive of this issue. Thus, the Union argues that a broad
scope grievance procedure does not conflict with the Contract Disputes
Act. In addition, the Union claims, referencing arguments it made with
respect to Proposal 1, that the use of personal services contracts is
illegal and thus cannot serve to block an otherwise negotiable proposal
or deprive the teachers of their rights under the Statute.
For the reasons stated below, we conclude that Proposal 5 does not
conflict with the Contract Disputes Act and is within the duty to
bargain. Proposal 5 is to the same effect as Provision 6 in Fort Bragg
Dependent Schools and Provision 2 in Fort Knox Dependents Schools in
that it is intended to establish a broad scope grievance procedure to
serve as the exclusive remedy for the resolution of any complaints
concerning matters relating to bargaining unit employees' conditions of
employment. In those cases we held that the Contract Disputes Act did
not preclude negotiation of a grievance procedure which would encompass
any matter relating to the employment of an employee. Therefore, for
the reasons stated in Fort Bragg Dependent Schools and Fort Knox
Dependents Schools, we find this proposal to be a negotiable procedure.
The petition for review as to Proposal 1, the second and third
sentences of Section 2, Proposal 2, Proposal 3, and Sections 1 and 2 of
Proposal 4 is dismissed. The Agency shall upon request or as otherwise
agreed to by the parties, bargain concerning Section 5 of Proposal 4 and
Proposal 5. /4/
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry D. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Sections 1 and 2, is set forth in the Appendix to this
decision.
The Agency contends that Proposal 2, as it pertains to compensation,
is outside the duty to bargain because Congress did not intend to
include the subject of pay or money-related fringe benefits within the
ambit of conditions of employment. The Agency also argues that Proposal
2 is inconsistent with management's right to determine its budget under
section 7106(a)(1) of the Statute. The Agency further contends that the
proposal is inconsistent with applicable procurement law and regulations
and with the Antideficiency Act, 31 U.S.C. Section 1341, because the
Government cannot be bound to the expenditure of funds until the funds
have been appropriated. Finally, the Agency argues that the proposal
conflicts with an Agency regulation for which a compelling need exists.
The Union contends that applicable Authority case precedent is
dispositive of all of the contentions raised by the Agency.
We conclude that Proposal 2, Section 1, and Section 2 as it pertains
to compensation, is within the duty to bargain for the reasons stated in
Fort Stewart (Georgia) Association of Educators and Fort Stewart
Schools, 28 FLRS 547 (1987) (Proposals 1 and 2), petition for review
filed sub nom. Fort Stewart Schools v. FLRA, No. 87-3734 (11th Cir.
Sept. 22, 1987), and Fort Knox Teachers Association, Fort Knox
Dependents Schools, 28 FLRA 179 (1987) petition for review filed sub
nom. Fort Knox Dependent Schools v. FLRA, No. 87-3878 (6th Cir. Sept.
18, 1987). For the reasons stated in Fort Stewart Schools and Fort Knox
Dependents Schools, we reject the arguments made by the Agency here that
the proposal is (1) outside the ambit of conditions of employment under
the Statute; (2) in violation of the Agency's right under section
7106(a)(1) to determine its budget; (3) inconsistent with procurement
law and regulations; (4) in conflict with an Agency regulation for
which a compelling need exists; and (5) in violation of the
Antideficiency Act, 31 U.S.C. Section 1341. All of these Agency
arguments were made in both Fort Stewart Schools and Fort Knox
Dependents Schools and rejected in those cases. The Agency has raised
no new or different outcome. Therefore, those arguments are also
rejected here.
The Agency shall upon request or as otherwise agreed to by the
parties, bargain concerning Proposal 2, as it pertains to compensation.
/5/
Issued, Washington, D.C. November 6, 1987
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
I agree with the majority that the issues relating to Proposal 2, as
it pertains to compensation, are essentially the same as those in Fort
Stewart (Georgia) Association of Educators and Fort Stewart Schools, 28
FLRA 547 (1987) (Proposals 1 and 2), petition for review filed sub nom.
Fort Stewart Schools v. FLRA, No. 87-3734 (11th Cir. Sept. 22, 1987),
and Fort Knox Teachers Association, Fort Knox Dependents Schools, 28
FLRA 179 (1987), petition for review filed sub nom. Fort Knox Knox
Dependent Schools v. FLRA, No. 87-3878 (6th Cir. Sept. 18, 1987). In my
opinion in those cases, I stated that in the absence of a clear
expression of Congressional intent to make wages and money-related
fringe benefits negotiable, I would find that proposals concerning those
matters are not within the duty to bargain. Accordingly, I would find
Proposal 2, as it pertains to compensation, to be nonnegotiable.
Proposal 2 is distinguishable from Provision 3 and portions of
Provision 5 in American Federation of Government Employees, AFL-CIO,
Local 1815 and U.S. Army Aviation Center, Fort Rucker, Alabama, 29 FLRA
No. 119 (1987), which also concerned teachers compensation. I concurred
with the majority's determination that those provisions were negotiable
because those provisions did not require negotiations over the setting
of wages; rather, Provision 3 simply required the Agency to comply with
applicable law in exercising its authority with respect to teacher
salaries, and the portions of Provision 5 required only that the Union
be allowed to (1) review, discuss, and provide input prior to the
designation of local school systems, and (2) review and discuss the
economic package prior to its submission to the Department of Defense.
The relevant portions of Proposal 2 in this case would require the
Agency to negotiate concerning the setting of wages.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Union has withdrawn the last sentence of the first paragraph
of Article 11, Section 2. Union Petition for Review at 5. This
sentence will not be considered further.
(2) In these circumstances in which we have found Proposal 3
nonnegotiable under both section 7106(a)(1) and 7106(a)(2)(B), we find
it unnecessary to address the Agency's other grounds for its allegation
of nonnegotiability.
(3) The Agency has withdrawn its allegation of nonnegotiability as to
those portions of Section 1 that are not underlined and as to all of
Sections 3 and 4. These parts of the proposal will not be considered
further.
(4) In finding these matters to be within the duty to bargain, we
make no judgment as to their respective merits.
(5) In finding this matter to be within the duty to bargain, we make
no judgment as to its merits.
Proposal 2
By April 1 of each year, the Employer shall present to the
Union a proposed salary schedule for the following school year.
The Union may exercise its right to request negotiations with the
Employer over the proposed salary schedule. Such request for
salary negotiations must be submitted to the Employer within
fifteen (15) days of the Union's receipt of the proposed salary
schedule. If no request is submitted, the salary schedule
presented by the Employer becomes effective.
Members of the bargaining unit are encouraged to notify the
Employer at the school of any interest they might have with regard
to filling extracurricular positions which might become available.
The Employer will make every effort to fill extracurricular
positions in accordance with the expressed preferences of the
qualified employees in the bargaining unit in the school. In the
event the Employer does not fill all available positions in
accordance with the preferences of the employees, then the
Employer agrees to actively seek qualified volunteers from the
bargaining unit at the school. Further, the Employer agrees that
the filling of extracurricular positions shall be done in a fair
and equitable manner and shall not be arbitrary and capricious.
(No employee in the bargaining unit shall be required to accept an
extracurricular activity, except where the vacancy cannot be
filled with a qualified volunteer.)
Unit employees who accept an extra duty assignment shall sign a
written agreement with the Principal indicating duties, rate of
pay and length of activity when such duties must be performed
outside the workday. A copy of the agreement shall be provided to
the unit employee. (Use form in this Article.
(The underlined sentence in brackets above has been withdrawn
by the Union.)
School . . . Activity . . . I agree to accept the extracurricular
activity of . . . for the School Year . . . . I understand the amount
to be paid for the activity is . . . , and shall be adjusted upward
based on the new salary schedule. The time worked will be in addition
to, and not as a part of, a regular full-time or part-time teaching
assignment, and cannot be during duty hours when school is in session.
Description of tasks to be performed: . . .
As soon as the activity is completed, I will notify the Principal and
he/she shall arrange that I be paid by separate check not later then the
next regular pay period for employees.
. . . Employee's Name (please print)
. . . Employee's Signature
. . . Principal's Name (please print)
. . . Principal's Signature
. . . Date Employee Signed
. . . Date Principal Signed
Proposal 4
Section 1. Disciplinary action will be taken for the sole
purpose of correcting offending employees and problem situations
and maintaining discipline and morale among other employees. In
those instances where corrective action can be accomplished
through closer supervision, or on-the-job training, formal
disciplinary action should not be taken. Constructive discipline,
in order to be effective, must be timely. The results to be
achieved through this means diminish in proportion to the time
allowed to elapse between the offense and the corrective action.
a. Informal Disciplinary Actions. Oral admonitions and
warnings are the first step in constructive discipline. As a
general rule, such actions are taken by supervisors on their own
initiative in situations of minor nature involving violation of a
rule, regulation, standard of conduct, safety practice, or
authoritative instructions. The employee should be advised of the
specific infraction or breach of conduct, exactly when it occurred
(date of the incident), and should be permitted to explain his/her
conduct or act or commission or omission.
b. Formal Disciplinary Actions. Formal disciplinary actions
consist of written reprimands, suspensions, and removals.
(Only the underlined portions of Section 1 are in dispute. All
of Sections 2 and 5 below are in dispute.)
Section 2. Disciplinary actions taken against employees will
be the minimum that can be reasonably expected by the Employer to
attain the purpose for which the action is initiated. Insofar as
possible, and in order to maintain consistency, the guide to
disciplinary actions contained in appropriate regulations will be
consulted and used as a general guide for administering
discipline.
Section 5. Whenever a unit employee is furloughed for thirty
(30) days or less, reduced in grade or pay, removed by discharge,
or suspended for more than fourteen (14) days, the following
procedures shall apply:
A. Issuance of Advance Notice
(1) The unit employee must be given not less than thirty (30)
calendar days written notice of the proposed action.
(2) The advance notice shall:
(a) state the reason(s) for the proposed action in detail;
(b) inform the unit employee where the material relied upon for
the proposed action may be reviewed (if applicable);
(c) inform the unit employee of the right to reply orally or in
writing, or both, within twenty (20) calendar days from receipt of
the proposed notice;
(d) state that a final decision on the proposed action will not
be made until after receipt of the unit employee's reply or after
the twenty (20) day period, whichever comes first; and
(e) inform the unit employee that he/she will remain in a
normal duty status pending a decision on the proposed action.
B. Notice of Final Decision
(1) The unit employee shall receive notice of final decision at
the earliest possible date following the notice period.
(2) The notice of final decision shall be signed and dated and
shall inform the unit employee:
(a) which of the reasons in the proposed notice have been found
sustained and which have not been found sustained;
(b) the effective date of the action; and
(c) of his/her rights under the appropriate grievance and/or
appeal procedures.
Proposal 5
Section 1. The negotiated grievance procedure is established
to provide unit employees with an opportunity to raise matters of
concern or dissatisfaction for informal and, where appropriate,
formal consideration and resolution. This Article also provides
the two parties to this Agreement with an opportunity to raise
matters of concern or dissatisfaction for formal consideration by
the other party in accordance with Section 2 below. It is the
intent of the parties to resolve grievances informally at the
earliest possible time and the lowest possible level. The filing
of a grievance shall not be construed as reflecting unfavorably on
an employee's good standing, his/her performance, his/her loyalty
or desirability to the organization, nor shall it be regarded as
an unfavorable reflection upon the Employer or particular Employer
officials.
Section 2. A unit employee may present a grievance on his/her
own behalf under this procedure provided that the Association is
given the opportunity to be present during the grievance
proceeding. Any resolution reached with the unit employee shall
be consistent with the terms of this Agreement.
Section 3.
Step 1 -- Informal
The parties agree that informal resolution of employee's
grievances is desirable. To this end, employee(s) and/or their
representatives should present any grievance informally to the
supervisor prior to reducing a grievance in writing. Such
informal presentation should take place within seven (7) calendar
days of the act or incident giving rise to the grievance. The
supervisor should arrange for a meeting within five (5) calendar
days of the informal presentation of the grievance to fully
discuss the matter and to attempt informal resolution.
Step 2 -- Formal
If the grievance is not satisfied with the decision rendered at
the First Step, the employee will submit the grievance in writing
within seven (7) workdays after receipt of the First Step decision
to the Post School Officer. The Post School Officer will refer
the grievance to the Superintendent of Schools. The
Superintendent of Schools will meet within five (5) workdays of
receipt of the written grievance by the Post School Officer with
all personnel mentioned in Step 1 above and all others deemed
necessary by the Superintendent of Schools for appropriate
resolution and shall give the employee a written answer, in
coordination with the Post School Officer, within five (5)
workdays after the meeting.
Step 3
If the grievance is not settled to the grievant's satisfaction
by the Superintendent of Schools and Post School Officer, the
employee may, within five (5) workdays, forward the grievance to
the Superintendent, USMA, for further consideration. The
Superintendent, USMA, or a designee, will review the grievance and
give the employee a written answer within ten (10) workdays after
receipt of the grievance. If the employee is not satisfied with
the decision of the Superintendent, USMA, or the designee, the
grievance may be submitted for arbitration in accordance with
Article 19. The Employer shall be notified in writing of the
intent to submit the grievance for arbitration within seven (7)
workdays of receipt of the Superintendent, USMA, or the designee's
decision.
Section 4. The following procedure will be followed in
processing grievances arising between the Union and the Employer.
a. If initiated by the Union, the grievance shall be submitted
directly to the Superintendent of Schools in writing within
fifteen (15) workdays of the date the Union becomes aware of the
matter being disputed. Within ten (10) workdays after receipt by
the Superintendent of Schools, the Parties shall meet for the
purpose of resolving the grievances. The Superintendent of
Schools shall notify the Union in writing of the decision
concerning the grievance within ten (10) workdays of the meeting.
If the Union is not satisfied with the decision of the
Superintendent of Schools it may within ten (10) workdays submit a
request in writing to the Superintendent of Schools to submit the
grievances to arbitration. This request shall be processed in
accordance with the procedure outlined in Article 19.
b. If initiated by the Employer, the grievance shall be
submitted directly to the President of the Union in writing within
fifteen (15) workdays of the date the Employer becomes aware of
the matter being disputed. Within ten (10) workdays after receipt
by the President of the Union, the parties shall meet for the
purpose of resolving the grievance. The President of the Union
shall notify the Superintendent of Schools in writing of the
decision within ten (10) workdays of the meeting. If the
Superintendent of Schools is not satisfied with the decision of
the President of the Union, the Superintendent of Schools may
within (10) workdays submit a request in writing for arbitration.
This request shall be processed in accordance with the procedures
outlined in Article 19.
Section 5. Failure of the employee or his/her Union
representative to observe the requirements and time limits set
forth in Section 3 of this Article will entitle the Employer to
deny the grievance based on untimeliness. Failure of the Employer
to observe those time limits will entitle the employee to move to
the next step in the grievance procedure. With reference to
Section 4 procedures, the failure of the complaining party to
initiate a complaint or to make a proper request for arbitration
within the time limits set forth in that section will bar that
party from thereafter submitting the matter to arbitration.
Failure of the noncomplaining party to take appropriate action
within the time limits prescribed in Section 4 will entitle the
complaining party to immediately request arbitration.
29 FLRA NO. 122
NFFE and Dep't of the Interior, Bureau of Land Management, Case No.
0-NG-1141, (Decided November 6, 1987)
7103(a)(14)(B)
7105(a)(2)(E)
7106(a)(1)
7106(a)(2)(A), (B) and (C)
7106(b)(2)
7114(a)(2)(A)
7116(a)(7)
7117(a)(1)
7131(d)
ALCOHOLISM AND DRUG ABUSE
DISCIPLINE
APPROPRIATE ARRANGEMENTS
DISCIPLINE
ASSIGN WORK
COMMITTEES
DETAILS
DUTIES AND WORK TO BE ASSIGNED
PARTICULAR DUTIES TO BE ASSIGNED
EMPLOYEES TO BE ASSIGNED WORK
NON-BARGAINING UNIT EMPLOYEE
MANAGEMENT OFFICIALS
SPECIFIED EMPLOYEES, TO
LEAVE
OVERTIME
TIME ALLOCATION OF WORK ASSIGNMENTS
WHEN AN INDIVIDUAL WILL PERFORM WORK ALREADY ASSIGNED
CODE OF FEDERAL REGULATIONS
5 C.F.R. 300.602
C.F.R. 1613.211 - 1613.222
COMMITTEES, UNION PARTICIPATION
ASSIGN WORK, MANAGEMENT'S RIGHT TO
DISCIPLINE EMPLOYEES, MANAGEMENT RIGHT
ALCOHOL OR DRUG ABUSERS
REHABILITATION OPPORTUNITY
LIMITATIONS ON AGENCY'S DISCRETION TO IMPOSE DISCIPLINE
ABSOLUTE PROHIBITION OF DISCIPLINE IN SPECIFIED CIRCUMSTANCES
DISCIPLINE OF EMPLOYEES
INVESTIGATION BEFORE IMPOSING DISCIPLINE, REQUIREMENT OF
SUSPENSION
ADVANCE NOTIFICATION OF
DETAILS
ASSIGNMENT TO
HIGHER GRADED POSITION
TEMPORARY PROMOTIONS FOR PERFORMING THE WORK OF A HIGHER GRADE
EQUAL EMPLOYMENT OPPORTUNITY
EEO COMPLAINTS, PRESENTATION AND SETTLEMENTS
REPRESENTATION
UPWARD MOBILITY
FEDERAL PERSONNEL MANUAL
CHAPTER 511-9
CHAPTER 630, SUBCHAPTER 3-4c
CHAPTER 630, SUBCHAPTER 4-3c
CHAPTER 630, SUBCHAPTER 13-4a
CHAPTER 713
SUPPLEMENT 792-2, SUBCHAPTER 5-1c
FORMAL DISCUSSIONS
EEO PROCEEDINGS
UNION'S RIGHT TO BE PRESENT
LEAVE
COMPENSATORY LEAVE
RELIGIOUS OBSERVANCES, LEAVE FOR
MATERNITY OR PATERNITY LEAVE
MANDATORY GRANTING OF
SICK LEAVE AND SICK PAY
ABUSE OF SICK LEAVE
MANAGEMENT RIGHTS: GENERALLY
ACCOMMODATIONS BETWEEN CONFLICTING RIGHTS AND OBLIGATIONS
DELAY OF MANAGEMENT FROM EXERCISING ITS RIGHTS
OFFICIAL TIME
EQUAL EMPLOYMENT OPPORTUNITY OFFICIAL TIME
OVERTIME
OVERTIME OPPORTUNITIES
EQUAL DISTRIBUTION OF OVERTIME
PERFORMANCE APPRAISAL SYSTEM
CRITICAL ELEMENTS
UNION PARTICIPATION
PERFORMANCE STANDARDS
ESTABLISHMENT AND REVISION OF
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING
DETAILS
PROMOTION
TEMPORARY PROMOTION FOR PERFORMING DUTIES OF A HIGHER GRADE
DETAILS VS. TEMPORARY PROMOTION
UNITED STATES CODE
5 U.S.C. 4302(a)(2)
This case concerns the negotiability of 16 provisions of a local
agreement disapproved by the Agency head under section 7114(c) of the
Statute.
Provision 1 - The provision provided that the Agency and Union agree
that the development of performance standards and the identification of
critical elements will be a joint effort between the employee and
supervisor. The Authority concluded that the provision concerns the
manner in which the Agency will meet the requirement of 5 U.S.C. sec.
4302(a)(2) to include employee participation in the establishment of
performance standards without specifying the form of the supervisor's
participation and was therefore negotiable.
Provision 2 - The provision provides that administrative details of
thirty days or less to perform duties of a higher level or in a
different line of work shall be rotated to the fullest extent
practicable. The Authority rejected the contention that the proposal
violated management's right to assign, noting that it does not seek to
prescribe the qualifications and skills necessary to perform a
particular work assignment, rather merely setting forth a procedure to
use when selecting employees previously determined by management to be
qualified to perform the work required in the detail. Accordingly, the
proposal was found to be within the duty to bargain.
Provision 3 - At issue was that portion of the provision which would
require the Agency to "temporarily promote" employees "temporarily
placed" in a high grade position or assign to a group of duties
warranting a higher grade. In finding the provision to be within the
duty to bargain the Authority rejected the Agency's contentions that it
conflicted with the time-in-grade requirements of 5 C.F.R. sec. 300.602
and with the position classification requirements of FPM chapter 511-9,
subchapter 3-2; or that it is outside the duty to bargain under section
7103(a)(14)(B) and 7106(a)(2)(C)
Provisions 4 and 7 - Provision 4 provided that policies and
procedures set forth in the negotiated article take precedence over
those set forth in Agency regulations; otherwise the procedures in the
regulations will be followed. The portion of provision 7 at issue
provided that the policies and procedures prescribed in the Agency
regulations concerning upward mobility would be followed. The Authority
found both negotiable, concluding that they do not conflict with section
7116(a)(7); do not conflict with other applicable law or regulation;
and would not prohibit the enforcement of subsequent legislation in
conflict with the agreement. The provisions were found to constitute
negotiable procedures under section 7106(b)(2).
Provisions 5 and 6 - Provision 5 would authorize union representation
at any formal discussion, hearings or investigations concerning an EEO
matter once an EEO complaint has been filed. Provision 6 would
authorize official time for various activities relating to a written EEO
complaint. Looking first at the possible application of FPM Chapter
713, without passing on whether it is a Government-wide regulation
within the meaning of section 7117(a)(1), the Authority concluded that
the Agency had failed to demonstrate that the provisions are
inconsistent with that Chapter so as to bar negotiations. As to
provision 5, in finding it negotiable, the Authority ascribed to the
phrase formal discussion the same meaning that it has under section
7114(a)(2)(A) of the Statute. Further, there was no showing that the
provision is in anyway violative of law or regulation. As to provision
6, it was found to be consistent with provisions of EEO law and
regulation and section 7113(d).
Provision 8 - At issue was that portion of the provision which
provided that prior to issuing a proposed notice of disciplinary action
or adverse action, the supervisor will undertake any appropriate inquiry
or investigation and will meet with the employee(s) and his/her
representative, if the employee requests representation. The Authority
found the provision to be nonnegotiable in that because it assigned
particular tasks to particularly agency personnel it violated
management's right under section 7106(a)(2)(B) to assign work.
Provision 9 - At issue were two sentences in a provision concerning
suspensions. The first sentence provided that a deciding official must
not be the proposing official. The second sentence provided that the
effective date of a suspension will be not less than ten (10) days from
the date of the decision letter. As to the first sentence, the
Authority determined that it was inconsistent with management's right to
assign work under section 7106(a)(2)(B) since it would prevent the
Agency from making the proposing official the deciding official as well.
However, it was further concluded that this portion of the provision
constitutes an appropriate arrangement within the meaning of section
7106(b)(3). The Authority noted in its conclusion as to the first
disputed portion of the provision that there is nothing in the specific
language which required the Agency in any manner to modify its
organizational structure.
As to the second sentence, the Authority concluded that because it
did not prevent management from acting at all in the exercise of its
reserved rights, it did not directly interfere with any of the
management rights alleged by the Agency. Rather it constitutes a
negotiable procedure under section 7106(b)(2).
In a separate opinion on this provision Chairman Calhoun disagreed
with the Authority decision. In his view, the Agency's right to
discipline includes the right to determine when the discipline will be
effected. In his view, the ten (10) delay set forth in the provision
directly and to an excessive degree conflicts with management's right to
discipline. Similarly, Chairman Calhoun views the second disputed
portion of the provision to excessively interfere with the exercise of
the right to discipline and does not constitute an appropriate
arrangement.
Provision 10 - At issue was a sentence in an overtime distribution
article that provided that the employer would make every reasonable
effort to ensure that the opportunity to work overtime is shared equally
among employees who are normally assigned to the work. The Authority
found nothing in the provision that would interfere with management's
right to assign work. The Authority noted that the provision simply
required the Agency to attempt to equalize overtime work among those
employees who are already assigned to perform the work. It was also
noted that the provision would apply only after the Agency had decided
to assign overtime work to employees who normally perform the work.
Provision 11 - At issue was a sentence on "religious observations"
which provides that except in emergency situations, compensatory time
off will be granted. Emergency was defined elsewhere in the parties
agreement as a "situation which imposes sudden, immediate, and/or
unforeseen work requirements . . . beyond the Employer's control or
ability to anticipate." The Authority concluded that by limiting the
Agency's ability to deny an employee's request for religious
compensatory time off to emergency situations only, the provision
conflicts with management's right under section 7106(a)(2)(B) to assign
work. The Authority stated, "The right to assign work includes the
right to determine when assignments will occur and to determine when the
work which has been assigned will be performed."
Provision 12 - At issue is the first sentence of a sick leave
provision that provides that prior to the employee being placed on leave
restrictions, the employee must be canceled at least twice concerning
leave abuse. The Authority concluded that the provision is inconsistent
with section 7106(a)(1) since it would substantively interfere with the
Agency's right to discipline.
Provision 13 - At issue in a "Maternity and Paternity" provision is
language that provides: that employees who are pregnant will be allowed
to work as long as they and their doctors feel is wise, prior to
delivery; that maternity leave in the form of sick leave, annual leave,
and leave without pay will be granted during delivery, confinement and
for a period of no more than the period of absence established by the
employee, her physician, and her supervisor; and that the employee
shall be returned to her position or a like position at the end of
maternity leave. The Authority first disposed of a Union procedural
contention that the Agency's allegation of nonnegotiability as to the
first and second sentences are untimely and should be dismissed. The
Authority stated that there is no requirement that a disapproval of a
locally executed agreement must be made with specificity. Rather, the
only requirement that an agency support its allegations 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 its allegations.
As to the merits of the dispute, the Authority determined as to the
first and second disputed sentence that they did not interfere with
management's right to assign work under section 7106(a)(2)(B) and is
within the duty to bargain. The third sentence was found to conflict
with FPM Chapter 630, subchapter 13-4a in that the provision makes no
specific reference to the various circumstances set out in the FPM which
would preclude an employee from being returned to a like position at the
end of maternity leave.
Provision 14 - The disputed provision provides that if an employee
requests advanced sick or annual leave in lieu of leave without pay, the
possibility of granting such will be examined in each individual case
and will be granted when possible. The Authority concluded that the
proposal could have the effect of requiring an agency to grant leave
regardless of the necessity for the employee's service during the period
covered by the request, which violates management's right to assign work
under section 7106(a)(2)(B). The Authority rejected the Union's
reliance on subchapters 3-4c and 4-3c of FPM chapter 630, noting that
they do not specifically contain the additional language requiring that
such leave will be granted when possible.
Provision 15 - At issue was the portion of a provision on the
establishment of a labor management committee which provided that the
Agency agreed to include on its team a Deputy State Director or higher
level official. The Authority concluded that this conflicted with
management's right to assign work under section 7106(a)(2)(B), noting
however that it was nonnegotiable only because it requires that
particular personnel will perform certain tasks, a requirement which
appears to be subsidiary to the basic intent of the provision. This is
a defect easily cured by deleting the reference to particular Agency
personnel.
Provision 16 - At issue were three sections of this provision:
Section (c) - The language would prohibit the Agency from terminating
an employee who acknowledges medical/behavioral problems without first
permitting the employee to seek professional help. The Authority found
that this would merely delay the exercise of management's right to
discipline, not interfering with it, and was therefore negotiable. It
was also noted that the language was fully consistent with FPM
Supplement 792-2, subchapter 5-1c, which defines the objective of
Federal drug abuse programs as being rehabilitative rather than
punitive. In a separate opinion Chairman Calhoun stated that in his
view this provision was not sufficiently specific to rule on its
negotiability.
Section (d) - This section would prohibit the Agency from taking
disciplinary or adverse actions against an employee for performance
and/or conduct related to the employee's medical/behavior problems
during the time the employee is enrolled in a rehabilitative program and
is making satisfactory progress unless such accommodation causes "undue
hardship." The Authority concluded that the proposal violated
management's right to discipline employees under section 7106(a)(2)(A).
The Authority also rejected the Union's contention that the proposal was
an appropriate arrangement for adversely affected employees under
section 7106(b)(3). The authority noted in this regard that while the
proposal would undoubtedly benefit employees in preventing the
institution of disciplinary or adverse action, the interference on
management's rights would be excessive.
Section (e) - This section would require the Agency to consider
whether an employee who is undergoing rehabilitation treatment has
suffered a temporary relapse rather than having failed completely in
rehabilitation efforts before taking disciplinary action against the
employee for conduct resulting from drug abuse of illness. The
Authority concluded that this section was a negotiable procedure under
section 7106(b)(2), noting that it merely required the Agency to give
consideration to a particular factor before taking the disciplinary
action.
Case No. 0-NG-1141
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Union
DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT
Agency
This case is before the Authority because of 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 16 provisions of a local agreement disapproved by the
Agency head under section 7114(c) of the Statute.
For the reasons which follow, we conclude that Provisions 1, 2, 3, 4,
5, 6, 7 and 10, Provision 13 in part and Provision 16 in part are
negotiable. Provisions 8, 11 and 12, Provision 13 in part, Provisions
14 and 15 and Provision 16 in part are nonnegotiable. Provision 9 and
Provision 16 in part are found negotiable in a separate opinion
(Chairman Calhoun concurring in part and dissenting in part).
The BLM and the Union agree that the development of performance
standards and the identification of critical elements will be a
joint effort between the employee and the supervisor. If they
cannot agree, the supervisor will set the standards for the coming
rating year. The standards and identified critical elements shall
be put in writing and signed or initialed by the employee and the
supervisor; initialing indicates each has seen and discussed
them. Further amendments may be made during the rating year, and
these amendments will be noted with the party's initials. /1/
(Only the underscored portion is in dispute.)
The Agency contends that the provision is outside the duty to bargain
because it would require negotiations on performance standards and
critical elements. The Union contends that the provision merely
reflects the requirements of applicable law that employees be allowed
input into the development of performance standards.
Provision 1 here is to the same effect as the first sentence of
Proposal 1 found negotiable in Patent Office Professional Association
and Patent and Trademark Office, Department of Commerce, 29 FLRA 116
(1987) (Proposal 1). In that case, the first sentence of Proposal 1
required the supervisor to hold a meeting with employees to permit them
to provide input on a performance appraisal plan. In finding the first
sentence of Proposal 1 in that case to be negotiable, we determined that
it was well established under Authority precedent that 5 U.S.C. Section
4302(a)(2) encouraged employee participation in establishing performance
standards without specifying the form which such participation must
take. Thus, we noted that the manner in which a particular agency
provides for such participation is within an agency's discretion and
within the duty to bargain to the extent that it would not prevent the
agency from establishing performance standards and critical elements
under section 7106(a)(2)(A) and (B) of the Statute.
Similarly, Provision 1 in this case also concerns the manner in which
the Agency will meet the requirement of 5 U.S.C. Section 4302(a)(2) to
include employee participation in the establishment of performance
standards without specifying the form of the supervisor's participation.
Thus, based on the reasons and cases cited in Patent and Trademark
Office, we find Provision 1 to be negotiable.
Administrative details of thirty (30) days or less to perform
duties of a higher level or in a different line of work shall be
rotated to the fullest extent practicable.
The Agency contends that the provision violates management's rights
to assign employees and to assign work under section 7106(a)(2)(A) and
(B) of the Statute. The Union contends that the provision is a
negotiable procedure, under section 7106(b)(2) of the Statute, and is
consistent with law, specifically, 5 U.S.C. Section 2302(b)(6).
The provision provides that administrative details of 30 days or less
to perform certain duties would be rotated to the fullest extent
practicable. The Agency argues that the provision would require it to
rotate the assignments on the basis of whether an employee had
previously been assigned rather than that employees' qualifications for
the assignment.
The Authority has consistently held that under section 7106(a)(2)(A)
of the Statute management retains discretion as to the personnel
requirements of the work of the position, that is, the qualifications
and skills needed to do the work, as well as such job-related individual
characteristics as judgment and reliability. American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 612-13 (1980),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982).
Furthermore management's right to assign work under section
7106(a)(2)(B) encompasses discretion to establish the particular
qualifications and skills needed to perform the work to be done, and to
exercise judgment in determining whether a particular employee meets
those qualifications. Thus, when management determines that only one
employee posseses the requisite qualifications to do certain work,
section 7106(a)(2)(B) reserves to management the right to assign the
work to that particular employee. Wright-Patterson, 2 FLRA at 631.
Where, however, in management's judgment, two or more employees are
equally qualified and capable of performing the work, the selection of
any one of those employees to perform the work would be consistent with
management's exercise of its discretion. Under such circumstances, the
procedures by which employees previously judged by management to be
equally qualified will be selected to perform the work are negotiable.
Laborers International Union of North America, AFL-CIO, Local 1276 and
Veterans Administration, National Cemetery Office, San Francisco,
California, 9 FLRA 703 (1982).
Likewise, Provision 2 does not seek to prescribe the qualifications
and skills necessary to perform a particular work assignment. Rather,
it merely sets forth a procedure the Agency would use when selecting
employees previously determined by management to be qualified to perform
the work required in the detail. Union Response at 4. See Local Lodge
830, International Association of Machinists and Aerospace Workers,
AFL-CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA
848 (1985), enforced sub nom. United States Naval Ordnance Station,
Louisville, Kentucky v. FLRA, 818 F.2d 545 (6th Cir. 1987). Thus,
Provision 2 is within the duty to bargain.
An employee temporarily placed in a higher grade position or
assigned to a group of duties warranting a higher grade shall be
temporarily promoted and shall be paid commensurate with the
position or duties from the first day of the effective date of the
temporary promotion. The temporary promotion or sixty (60) days
or more will be made based on competitive procedures.
The Agency contends that the provision is outside the duty to bargain
because it violates: (1) Government-wide regulations; (2) section
7103(a)(14)(B) of the Statute; and (3) management's rights to select
and promote employees under section 7106(a)(2)(C).
The Union contends that the Agency has misinterpreted the provision
and denies that it is outside the duty to bargain for any of the reasons
provided by the Agency. The Union contends that the provision is merely
a procedure which the Agency will observe in exercising its rights under
the Statute.
The dispute between the parties concerns only the first sentence of
this provision. This sentence would require the Agency to "temporarily
promote" employees "temporarily placed" in a higher grade position or
assigned to a group of duties warranting a higher grade. For the
reasons set forth below, we find that the provision is within the
Agency's duty to bargain.
The Agency first argues that the provision conflicts with the
time-in-grade requirements of 5 C.F.R. Section 300.602 and with the
position classification requirements of Federal Personnel Manual (FPM)
chapter 511-9, subchapter 3-2. The Union, however, clearly states that
it does not intend the provision to be applied in any fashion which
would violate applicable laws or regulations. Moreover, we find nothing
in the language of the provision requiring that it be applied in any
manner inconsistent with the regulations cited by the Agency. Absent an
indication in the provision itself or in the record that the Union
intends otherwise, the provision must be interpreted as consistent with
applicable law. Therefore, this Agency contention is without merit.
The Agency next argues that the provision is outside the duty to
bargain under sections 7103(a)(14)(B) and 7106(a)(2)(C) of the Statute.
However, the Agency has failed to demonstrate that the provision either
requires negotiation over the classification of any position, or that it
violates management's rights to select or promote employees. Rather,
the provision only requires the Agency to compensate employees at the
rate of a higher graded position after the Agency has selected and
assigned the employee to that higher grade position. Therefore, these
Agency contentions are without merit.
In our view, the provision is similar to ones found negotiable in
National Association of Government Employees, Local R12-29 and
Department of the Navy, Naval Construction Battalion Center, Port
Hueneme, California, 19 FLRA 939 (1985); American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 628 (1980) (Proposal
XV), enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982), and Methods and Standards Association and
Naval Air Rework Facility, Naval Air Station, Pensacola, Florida, 2 FLRA
286 (1979). In those cases the Authority determined that proposals
requiring the temporary promotion of employees officially assigned to a
higher graded position, or to the duties of a higher graded position,
for certain specified time periods were within the duty to bargain.
Accordingly, we conclude that Provision 3 is within the duty to
bargain.
Policies and procedures set forth in this negotiated article
take precedence over those set forth in the BLM Manual 1400-335.
Otherwise, the procedures set forth in that manual chapter will be
followed.
The Upward Mobility Program is a program designed to focus
personnel policy and practices on the development and
implementation of specific career opportunities for lower level
employees (at GS-9 or below or wage equivalent) who are in
positions or occupational series which do not enable them to
realize their full work potential.
The Bureau of Land Management and the Union are committed to
use the Upward Mobility Program. The policies and procedures
described in BLM Manual 1400-330, to the extent consistent with
this article, will be followed in carrying out the Upward Mobility
Program. The Program shall be open to all employees who meet the
criteria established by BLM regulations. (Only the underscored
portion is in dispute.)
Bureau of Land Management (BLM) Manual 1400-335 refers to an Agency
regulation which concerns merit promotion policies and procedures. The
Agency contends that Provision 4 conflicts with section 7116(a)(7) of
the Statute. It also contends that the provision would prohibit the
enforcement of legislation in conflict with the agreement. More
particularly, the Agency states that a BLM Manual on any subject matter
covered by the FPM consists of repeating Governmentwide regulations and
setting forth those matters in which it has discretion. The Agency
claims, in effect, that a change in a Government-wide rule or regulation
implementing 5 U.S.C. Section 2302 would "most likely" require a change
in BLM Manual 1400-335. The Agency states that as this provision would
prohibit such a change, it is nonnegotiable. Statement of Position at
9.
The Agency also asserts that the provision would prohibit the
enforcement of subsequent legislation through BLM Manuals which are in
conflict with this provision. As to Provision 7, the Agency argues that
it would prevent changes in BLM Manual 1400-300 which may be mandated by
law and would conflict with section 7116(a)(7) of the Statute.
Therefore, according to the Agency, the provision is nonnegotiable.
The Union contends there is no merit in the Agency's position, and
that the provisions constitute negotiable procedures.
Contrary to the Agency's assertions, we find both provisions to be
within the duty to bargain for the following reasons:
In our view, the provision would have the following effects: (1) it
would essentially require the Agency to waive the application of its own
regulation, BLM Manual 1400-335 with regard to matters that are covered
by the parties' agreement; and (2) it would give precedence to policies
and procedures set forth in the agreement over subsequently made changes
to the BLM Manual.
We have previously found provisions having these effects to be within
the duty to bargain and not to be inconsistent with section 7116(a)(7)
of the Statute. /2/ See International Plate Printers, Die Stampers and
Engravers Union of North America, AFL-CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA
113 (1987) (Provision 1) and cases cited therein.
Nothing in the Statute prevents the Agency from agreeing to waive the
application of its own regulation where matters are covered by the
parties' collective bargaining agreement. The Agency would not be
precluded from making changes in the BLM Manual. It would simply be
precluded from applying those changes that are in conflict with the
negotiated agreement to those employees who are covered by the
agreement. Also, there is nothing in the language of the provision
itself to indicate that the agreement would not have to be in compliance
with existing Government-wide regulations that are in effect at the time
the agreement is executed. See Forth Knox Teachers Association and
Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203
(1987) (Provision 6), petition for review filed sub nom. Board of
Education of the Fort Knox Dependent Schools v. FLRA, No. 87-3702 (6th
Cir. July 24, 1987).
Further, we find no merit to the Agency's contentions that it would
be precluded from making changes in the BLM Manual regarding 5 U.S.C.
Section 2302 matters and from enforcing subsequent legislation through
the BLM Manual that is in conflict with the agreement. The Agency has
not specifically demonstrated that BLM Manual 1400-335 concerns a 5
U.S.C. Section 2302 matter, nor has it identified any specific
Government-wide regulations which the BLM Manual presumably implements.
Moreover, the Union has pointed out that Article 4, Section 4.3 of
the parties' collective bargaining agreement, which was not disapproved
by the Agency head, provides that "in the administration of all matters
covered by the Agreement, officials and employees are governed by
existing or future laws . . . of appropriate authorities(.)" Reply Brief
at 12.
As noted above, the Agency claims that this provision would prevent
changes in BLM Manual 1400-300 which may be mandated by law and that it
would also conflict with section 7116(a)(7) of the Statute. For the
same reasons that we rejected the Agency's arguments to this effect with
regard to Provision 4, we do the same here. That is, the Agency has not
identified any specific law or Government-wide regulation with which the
provision conflicts. Further, the Agency has not in any manner
demonstrated that the provision conflicts with section 7116(a)(7) of the
Statute.
Based on the foregoing analysis, we find that Provisions 4 and 7 do
not conflict with section 7116(a)(7) of the Statute; do not conflict
with other applicable law or regulation; and would not prohibit the
enforcement of subsequent legislation in conflict with the agreement.
Therefore, we conclude that Provisions 4 and 7 constitute negotiable
procedures under section 7106(b)(2) of the Statute.
An employee discussing a problem of alleged discrimination with
an EEO counselor or at any step of the EEO complaint procedure has
the right to be accompanied by a union representative of his/her
choice, if he/she so desires. Once a complaint has been filed,
the Union may attend any subsequent formal discussion, hearing, or
investigation concerning the complaint. (Only the underscored
portion is in dispute.) /3/
An employee and his/her representative, if the representative
is an employee, shall be given a reasonable amount of time to
prepare and present a complaint or any subsequent appeal. A
complainant and/or the representative shall be given official time
to attend any conference, meeting, hearing, investigation, or
trial in connection with an EEO complaint provided a written
complaint has been filed. (Only the underscored portion is in
dispute.)
According to the Agency, both provisions concern the processing of
Equal Employment Opportunity (EEO) matters under procedures established
in FPM chapter 713, rather than under the parties' negotiated grievance
procedures. It contends that the provisions violate various subchapters
of FPM Chapter 713 by undermining the impartiality of EEO
investigations, as required by those sections of the FPM.
The Union contends that the provisions concern Union representation
and consequently relate to conditions of employment over which they are
entitled to bargain. It states specifically that for this reason, the
Agency's arguments dealing with the EEO provisions in the FPM are
without merit.
In order to establish that the provisions are outside the duty to
bargain under section 7117 of the Statute on the basis alleged by the
Agency, the Agency would have to establish that FPM Chapter 713 is a
Government-wide rule or regulation with which the provisions are
inconsistent. The Agency has made no claim that FPM Chapter 713 is a
Government-wide rule or regulation. Instead, the Agency has merely
cited to provisions of that chapter which stress the need for impartial
consideration and investigation of EEO complaints within an agency.
More particularly, with regard to Provision 6, the Agency has also cited
to that portion of the FPM which grants a reasonable amount of time to
an employee or the employee's representative for the processing of an
EEO complaint.
Even assuming that FPM Chapter 713 is a Government-wide rule or
regulation within the meaning of section 7117(a)(1) of the Statute, we
conclude that the Agency has failed to demonstrate that Provisions 5 and
6 are inconsistent with that Chapter so as to bar negotiations.
Moreover, the Agency has not alleged and it does not otherwise appear
that the provisions are inconsistent with any other law, rule or
regulation. Therefore, and for the reasons more fully set forth below,
we find the provisions to be within the duty to bargain.
Provision 5 would authorize union representation at any formal
discussions, hearings or investigations concerning an EEO matter once an
EEO complaint has been filed. In this manner, the provision is to the
same effect as provisions previously found to be within the duty to
bargain. In American Federation of Government Employees, AFL-CIO, Local
1770 and Department of the Army, Fort Bragg Dependents Schools, Fort
Bragg, North Carolina, 28 FLRA 493 (1987) (Provision 1, Section 8),
petition for review filed sub nom. Department of the Army, Fort Bragg
Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-2661 (4th
Cir. Sept. 22, 1987), the provision granted the union the right to have
reasonable representation at all formal discussions between the employer
and an employee concerning EEO complaints. In finding the provision
negotiable we ascribed to the phrase formal discussion the same meaning
that it has under section 7114(a)(2)(A) of the Statute. In this
decision, we adopt the same interpretation. Also, in American
Federation of Government Employees, Local 2182, AFL-CIO and Propulsion
Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600
(1987) (Provision 1), we found negotiable a provision concerning the
right of the union to have an observer present at EEO complaint
hearings.
While the issue of union attendance at an investigation was not
raised in either of the cited cases, as it is in Provision 5, the
analysis which formed the basis of our conclusion in U.S. Army Research
and Technology Laboratories is equally applicable here. In that case we
found that the regulations of the Equal Employment Opportunity
Commission (EEOC) grant to agencies the responsibility for establishing
regulations governing their processing of complaints of discrimination
and require that agencies ensure that their regulations comply with
certain principles and regulations established by the EEOC. 29 C.F.R.
Section 1613.211 through 1613.222. We found that EEOC procedural
regulations serve only as guidelines to agencies and are, therefore,
within an agency's discretion. The particular procedural regulation
involved in U.S. Army Research and Technology Laboratories concerned
attendance at discrimination complaint hearings. Since this was a
matter within the agency's discretion, the provision was within the duty
to bargain.
Likewise, the EEOC regulations governing investigations are
procedural in nature. As such, matters concerning investigations are
within the Agency's discretion to bargain. Apart from its arguments
concerning FPM Chapter 713, which were previously addressed, the Agency
has not asserted that bargaining over the matter would be inconsistent
with any other applicable law, rule or regulation. Therefore, we find
the portion of the provision dealing with attendance at investigations
to be within the duty to bargain, as is the remainder of the provision
for the reasons stated.
Provision 6 would authorize official time for various activities
relating to a written EEO complaint. We note that the regulations of
the EEOC as well as the provision of the FPM relied on by the Agency
grant an employee or his representative a reasonable amount of official
time for the presentation of an EEO complaint. 5 C.F.R. Section
1613.214 and FPM Chapter 713, Appendix B, B-4. The portion of the
provision here that is not in dispute appears to be consistent with
these provisions. The disputed portion, however, would extend the
authorization of official time for other matters related to the EEO
complaint.
Section 7131(d) of the Statute permits the negotiation of official
time under various circumstances. /4/ As we stated in National Archives
and Records Administration, 24 FLRA 245 (1986), the plain language of
the section indicates that official time may be negotiated for an
employee representing an exclusive representative or in connection with
matters covered by the Statute. The legislative history of the Statute
confirms that official time negotiated under section 7131(d) is to be
used for labor-management relations activities. Here, we find that
official time is being sought in connection with matters relating to the
processing of EEO complaints. In our view, this concerns activities
relating to labor-management relations. Accordingly, we find Provision
6 to be within the duty to bargain.
Prior to issuing a proposed notice of disciplinary action or
adverse action, the supervisor will undertake any appropriate
inquiry or investigation and will meet with the employee(s) and
his/her (their) representative, if the employee requests
representation. As appropriate, appropriate counseling will be
provided to notify the employee of employer's expectation as to
acceptable future behavior or action by the employee. Management
will assure an employee who has received a proposal (sic) notice
of disciplinary action, or who will receive one, is informed of
management's expectations as to acceptable behavior or actions by
the employee. (Only the underscored portion is in dispute.)
The Agency contends, in essence, that the provision violates its
rights under sections 7106(a)(1) and 7106(a)(2)(A) and (B) to determine
its organization, to take disciplinary action against its employees, and
to assign work. The Union contends that the provision is a negotiable
procedure and does not interfere with any of the management rights cited
by the Agency.
The provision specifically requires a supervisor to undertake an
appropriate inquiry or investigation prior to issuing a proposed notice
of disciplinary action or adverse action. The Agency claims that the
provision contemplates that it will be the immediate supervisor who will
undertake the inquiry or investigation. According to the Agency, this
violates management's rights to assign work and determine its
organization. The Agency also argues that the provision establishes
preconditions on the exercise of management's right to discipline. That
is, the Agency would be required to explore the facts and circumstances
before notification of discipline as a precondition of the right to take
discipline. The Agency also argues in this connection that the extent
of any inquiry or investigation is an internal management matter and
constitutes integral deliberations concerning the relevant factors upon
which management can determine whether to propose disciplinary action.
What management does therefore as a part of the inquiry or investigation
is part of the decision to discipline itself and therefore outside the
duty to bargain.
The Agency's contention that requiring a specific supervisor to
perform work violates management's right to determine its organization
cannot be sustained. In this respect, the Agency has not demonstrated
and it does not otherwise appear that the provision relates in any
manner to the Agency's organizational structure. See National Treasury
Employees Union, Chapter 26 and Internal Revenue Service, Atlanta
District, 22 FLRA 214 (1986) (Proposal 1).
We also reject the Agency's arguments concerning the requirement to
explore the facts and circumstances and the extent of the inquiry as
placing preconditions on and being part of the exercise of management's
rights. We do not view the provision as injecting the Union into the
deliberative process by which management will exercise its right to
discipline and we find nothing in the provision that would prevent the
Agency from exercising that right.
With regard to the Agency's assertion that the provision contemplates
that the immediate supervisor take the actions required, the Union
claims that nothing in the provision requires that the supervisor be an
employee's immediate supervisor. Rather, the Union claims that the term
supervisor was intended to mean the appropriate management official with
authority to issue a proposed disciplinary or adverse action. Reply
Brief at 17-18.
However, whether the provision was designed to apply to an
appropriate management official, as claimed by the Union, or an
immediate supervisor, as claimed by the Agency, we find the provision to
be inconsistent with the Agency's right under section 7106(a)(2)(B) of
the Statute to assign work.
In this respect Provision 8 is to the same effect as Provision 6
found to be nonnegotiable in American Federation of Government
Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S.
Army Test, Measurement, and Diagnostic Equipment Support Group, the U.S.
Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69
(1987), petition for review filed sub nom. U.S. Army Missile Command,
U.S. Army Test, Measurement, and Diagnostic Equipment Support Group,
U.S. Army Information Systems Command-Redstone Arsenal Commissary v.
FLRA, No. 87-7445 (11th Cir. July 17, 1987). In that case, Provision 6
required that the immediate supervisor conduct an inquiry or
investigation before issuing a proposed notice of disciplinary action.
We found that because the provision assigned particular tasks to
particular agency personnel it violated management's right under section
7106(a)(2)(B) to assign work. Thus, based on U.S. Army Missile Command,
Provision 8 in this case which also assigns particular tasks to
particular Agency personnel is nonnegotiable. However, this defect is
easily cured. By deleting the reference to particular Agency personnel,
it would be negotiable. U.S. Army Missile Command at 81.
The Authority Members have expressed different views concerning the
negotiability of Provision 9. The Decision and Order on this provision
and the separate opinion of Chairman Calhoun follow this decision.
Records showing the overtime work shall be maintained. The
employer will make every reasonable effort to ensure that the
opportunity to work overtime is shared equally among employees who
are normally assigned to the work. In the event an employee does
not desire to work overtime, the supervisor shall make every
reasonable effort to accommodate the employee's request. (Only
the underscored portion is in dispute.)
The Agency contends that the disputed part of the provision
interferes with its right under section 7106(a)(2)(B) to assign work.
The Union contends that it does not interfere with management's right to
assign work, and is negotiable because it concerns a matter which
affects working conditions within the Agency's discretion.
The Agency supports its contention by asserting that on its face the
provision would preclude management from assigning overtime to
supervisors or to employees other than those normally assigned the work.
The Union states that the provision would not expressly limit
management's ability to assign work to supervisors or to anyone
management sees fit. Under the Union's interpretation, the Agency would
be required to make every reasonable effort to assign overtime equally
only after it decides to assign overtime work to those employees who
normally perform the work involved.
Contrary to the Agency's assertions, we find nothing in the provision
that would interfere with management's right to assign work. Rather, we
find the provision to be to the same effect as provisions or proposals
found negotiable in the following cases: Fort Bragg Dependent Schools,
28 FLRA 493 (1987) (Provision 2, Section 4 - the opportunity to work
overtime will be equitably offered to all qualified employees within a
particular trade or occupation); American Federation of Government
Employees, AFL-CIO, Meat Grading Council of Locals and Department of
Agriculture, Meat Grading and Certification Branch, 22 FLRA 496 (1986)
(Proposal 2 - employee regularly assigned to a task requiring overtime
will have the primary responsibility of performing the necessary service
during the week and on weekends); and American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1980) (Proposal 1 - if certain types of overtime are
required, they will be performed by particular employees during the
workday, except in certain circumstances). In all the aforementioned
cases, the basis for finding the disputed matters to be within the duty
to bargain is that they were concerned only with which employee among
those in the bargaining unit already assigned to perform certain work
would be selected to perform that work in an overtime status. See also
National Association of Government Employees, Local R4-75 and U.S.
Department of the Interior, National Park Service, Blue Ridge Parkway,
24 FLRA 56 (1986) (Provision 5 - a reasonable effort will be made to
rotate personnel who are mission essential where less than a full
workforce is required).
Likewise, Provision 10 simply would require the Agency to attempt to
equalize overtime work among those employees in the unit who are already
assigned to perform that work. As to the Agency's contention that the
provision would preclude management from assigning overtime to
supervisors or employees other than those normally assigned the work, we
find nothing in the language of the provision to support this
contention. Moreover, the Union stated that the provision would not
limit management's ability to assign work to supervisors or anyone else
management sees fit. The provision would apply only after the Agency
has decided to assign overtime work to employees who normally perform
the work.
Accordingly, we find Provision 10 to be within the duty to bargain.
An employee whose personal religious beliefs require that
he/she be absent from work during scheduled work periods may
elect, with the approval of his/her supervisor to engage in
overtime work for time lost as the result of meeting those
religious requirements. An employee who elects, and receives
permission for, such overtime work shall be granted equal
compensatory time off from his/her scheduled tour of duty (in lieu
of overtime pay) for such religious reasons, or requirements.
Except in emergency situations, such compensatory time off will be
granted. (Only the underscored portion is in dispute.)
The Agency contends that the disputed sentence of the provision
violates its right to assign work under section 7106(a)(2)(B) of the
Statute. According to the Union, the provision is negotiable since it
complies with applicable laws and regulations.
The disputed sentence of the provision requires that except in
emergency situations, compensatory time off for religious observances
will be granted. "Emergency" is defined elsewhere in the parties'
agreement as "a situation which imposes sudden, immediate, and/or
unforeseen work requirements as a result of natural phenomena, civil
disturbances, or other circumstances beyond the Employer's reasonable
control or ability to anticipate."
In American Federation of Government Employees, AFL-CIO, Local 1923
and Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 17 FLRA 543 (1985), the Authority
determined nonnegotiable a proposal which allowed an agency to deny time
off for religious observance only under unusual circumstances where such
time off would severely disrupt the agency's function. The Authority
also found that the proposal was inconsistent with 5 C.F.R. Section
550.1002 (1984), a Government-wide regulation governing the granting of
compensatory time off for religious observances. This regulation
requires an agency to grant employees' requests for religious
compensatory time and to modify the employees' work schedules "to the
extent that such modifications in work schedules do not interfere with
the efficient accomplishment of an agency's mission(.)"
As previously set forth, this provision would permit the Agency to
deny an employee's request for compensatory time for religious reasons
only in emergency situations. Thus, unless an emergency existed, the
provision would require the Agency to modify an employee's work schedule
even if such modification interfered "with the efficient accomplishment
of the agency's mission." Like the proposal in Social Security
Administration, Baltimore, this standard is inconsistent with the
standard established by 5 C.F.R. Section 550.1002. See also Federal
Union of Scientists and Engineers, Local R1-144 and Department of the
Navy, Naval Underwater Systems Center, 26 FLRA 568 (1987).
Moreover, by limiting the Agency's ability to deny an employee's
request for religious compensatory time off to emergency situations
only, the provision conflicts with management's right under section
7106(a)(2)(B) to assign work. The right to assign work includes the
right to determine when assignments will occur and to determine when the
work which has been assigned will be performed. See American Federation
of Government Employees, AFL-CIO, Local 2263 and Department of the Air
Force, Headquarters, 1606th Air Base Wing (MAC), Kirtland Air Force
Base, New Mexico, 15 FLRA 580 (1984) (Proposal 5).
Accordingly, we find that the disputed part of Provision 11 is
inconsistent with a Government-wide regulation and, therefore, is
outside the duty to bargain under section 7117(a)(1) of the Statute. It
is also inconsistent with the Agency's right to assign work, under
section 7106(a)(2)(B).
Prior to the employee being placed on leave restriction, the
employee must be counseled at least twice concerning leave abuse.
Once an employee is on leave restriction, the restrictions will be
reviewed every three (3) months. If the employee's use of leave
improves, the leave restriction will be lifted. (Only the
underscored portion is in dispute.) /5/
The Agency contends that the disputed part of the provision conflicts
with its right to discipline employees under section 7106(a)(2)(A) and
to assign work under section 7106(a)(2)(B). The Union contends that the
provision is a negotiable procedure which does not prevent the Agency
from acting at all in the exercise of its rights.
It appears from the record that the term "leave restriction" as used
in the provision includes restrictions on when an employee can request
sick leave, a requirement that sick leave be requested in advance,
increased documentation necessary to request sick leave, and the like.
The purpose of leave restriction, according to the Agency, is as a first
step in eliminating leave abuse and as advance warning to an employee
that his/her use of sick leave is being monitored and that the violation
of leave restrictions may result in discipline. The disputed part of
the provision would require that an employee be counseled at least twice
concerning leave abuse before being placed on leave restriction.
We find that the provision is inconsistent with section 7106(a)(1) of
the Statute since it would substantively interfere with the Agency's
right to discipline. Rather than instituting some form of restriction
for leave abuse, the Agency would instead have to counsel the employee
at least twice. Thus, regardless of the circumstances warranting the
imposition of leave restriction, management would be unable to take any
action other than counseling for the first two leave offenses. The
provision does not merely delay the exercise of a management right as
claimed by the Union -- that is, require counseling twice before
imposing leave restrictions -- it would substitute counseling for
whatever form of leave restriction management might wish to employ for
at least two occasions of leave abuse. The provision here interferes
with management's right to take disciplinary action. This provision,
therefore, is like the provision found to be outside the duty to bargain
in Bureau of Engraving Printing, 25 FLRA 113 (1987) (Provision 22,
Subsection (a)), which placed limitations on management's choice of
disciplinary action. It is also similar to the proposal in National
Maritime Union of America, AFL-CIO and Department of Commerce, National
Oceanic and Atmospheric Administration, National Ocean Survey,
Rockville, Maryland, 15 FLRA 576 (1984) (Proposal 1), which unlawfully
prohibited the imposition of a specific penalty for employee misconduct.
Provision 12 is, therefore, outside the duty to bargain.
In view of our conclusion, it is unnecessary to address the Agency's
contention that the provision is also inconsistent with its right to
assign work.
Employees who are pregnant will be allowed to work as long as
they and their doctors feel is wise, prior to delivery of the
child. Maternity leave in the form of sick leave, annual leave,
and leave without pay will be granted during delivery, confinement
and for a period of no more than the period of absence established
by the employee, her physician, and her supervisor. The employee
shall be returned to her position or a like position at the end of
maternity leave. Fathers may be granted paternity leave, i.e.,
the use of annual leave or leave without pay, in order to care for
their wives who are confined or for other minor children. The
amount of time allowed shall depend upon the circumstances of the
individual case. (Only the underscored portion is in dispute).
The Agency contends that the first sentence of the provision
interferes with its right to assign work by allowing the employee and
her doctor to determine how long the employee will work even though the
employee may not be physically capable of performing the assigned
duties. The Agency claims that it should not be required to continue
assigning such work to the employee. However, allowing the employee to
perform light work instead would also violate management's right to
assign. The Agency contends that the second sentence of the provision
violates its right to assign work by mandating the granting of leave for
maternity purposes and by precluding the revocation of a prior
authorization of maternity leave even when the employee is needed back
at work. The Agency contends that the third sentence of the provision
violates its right to assign employees by requiring management to return
an employee to her former position or a like position at the end of
maternity leave, even when the employee's position has been abolished
through a transfer of function or a reduction-in-force.
The Union contends that because the Agency did not declare the first
two sentences of the provision nonnegotiable in its original allegation
of nonnegotiability, that is, in its disapproval of the locally executed
agreement, the attempt to do so in its Statement of Position is untimely
and should be dismissed. As to the third sentence of the provision, the
Union contends that it is negotiable, because it involves a condition of
employment and complies with the Federal Personnel Manual.
We find no merit in the Union's contention that the Agency's
allegations of nonnegotiability as to the first and second sentences are
untimely and should be dismissed. There is no requirement in either the
Statute or the Authority's Rules and Regulations that a disapproval of a
locally executed agreement must be made with specificity. Rather, the
only requirement that an agency support its allegations 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 its allegations. Department of the Interior, National Park
Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA
537, 540-541 (1985), aff'd sub nom. National Association of Government
Employees, Local R4-68 v. FLRA, 802 F.2d 1484 (4th Cir. 1986).
Moreover, in such circumstances, a union, of course, has ample
opportunity to respond to an agency's arguments by filing a Response to
the statement of position. See section 7117(c)(4) of the Statute and
section 2424.7 of the Authority's Rules and Regulations.
Management's Right to Assign Work Under Section
7106(a)(2)(B)
This sentence provides that pregnant employees be allowed to work as
long as they and their doctors feel it is wise, prior to delivery. The
Agency argued that it would interfere with the exercise of management's
right to assign work. We disagree.
There is nothing contained in the first sentence of the provision
which addresses the duties that management may assign to pregnant
employees. This sentence does not state, for example, that management
must continue to assign particular duties to pregnant employees, as
alleged by the Agency. Nor does the first sentence require management
to allow pregnant employees to perform light work instead of their
regularly assigned duties.
Rather, this portion of the provision merely provides that pregnant
employees will be allowed to work as long as they and their doctors
believe is wise. In our view, this sentence is simply an attempt to
prevent the Agency from unlawfully discriminating against employees on
the basis of pregnancy.
Accordingly, we find that the first sentence of Provision 13 does not
interfere with management's right to assign work and is within the
Agency's duty to bargain.
Management's Right to Assign Work Under Section
7106(a)(2)(B)
The Agency claims that because the second sentence mandates the
granting of leave for the period of delivery, confinement and recovery
it violates management's right to assign work. According to the Agency,
although the second sentence includes supervisory involvement, it does
not permit the revocation of a prior leave request in circumstances
where the employee is needed back to work before the expiration of the
authorized leave.
The Union did not indicate the intent of this sentence of the
provision or refute the Agency's assertions. However, we find that the
Agency has not established that the second sentence would prevent the
Agency from revoking any portion of the prior leave authorization in
appropriate circumstances, such as where the employee is needed back at
work and the employee is able to return. That is, the second sentence
specifically contemplates that the total period of absence will be no
more than that which is necessary and provides for the employee's
supervisor to participate in that determination. Thus, the second
sentence is also within the duty to bargain. Compare American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986)
(Proposal 2) (Proposal 2 interfered with the right to assign work under
section 7106(a)(2)(B) because it precluded the agency from requiring an
employee to return to work at any point during a period of leave without
pay for maternity reasons even if the employee was able to do so and the
agency determined it needed the employee's services).
Government-wide Regulation
The third sentence of the provision would require an employee to be
returned to her position or a like position at the end of her maternity
leave. FPM Chapter 630, subchapter 13-4, provides that:
a. Employees planning to return to work. The agency has an
obligation to assure continued employment in her position or a
position of like seniority, status, and pay, to the employee who
wishes to return to work following delivery and confinement,
unless termination is otherwise required by expiration of
appointment, by reduction-in-force, for cause, or for similar
reasons unrelated to the maternity absence.
Rather than complying with subchapter 13-4a, as asserted by the
Union, this part of the provision conflicts with this requirement. That
is, the third sentence make no specific reference to the various
circumstances set out in the FPM which would preclude an employee from
being returned to a like position at the end of maternity leave.
Rather, the third sentence requires that the employee be returned to her
position or a like position regardless of whether the employee's
termination is otherwise mandated by, for example, a reduction-in-force,
or for other reasons unrelated to the maternity absence.
As the third sentence conflicts with FPM Chapter 630, subchapter
13-4a, we find it unnecessary to address the Agency's contention that it
also interferes with its right to assign employees.
If the employee requests advanced sick or annual leave in lieu
of leave without pay, the possibility of granting such will be
examined in each individual case and will be granted when
possible.
The Agency contends that the provision is outside the duty to bargain
because it violates its right to assign work under section
7106(a)(2)(B). The Union contends the provision concerns conditions of
employment within the discretion of the agency to negotiate and that it
is consistent with applicable Government-wide regulations.
The Agency contends that by providing that leave "will be granted
when possible" the provision violates its right to assign work by
effectively eliminating its discretion to deny employee requests for
advance sick or annual leave.
We agree. Proposals which could have the effect of requiring an
agency to grant leave regardless of the necessity for the employee's
service during the period covered by the request have consistently been
found to violate management's right to assign work under section
7106(a)(2)(B) of the Statute. For example, American Federation of
Government Employees, AFL-CIO, Local 2263 and Department of the Air
Force, Headquarters, 1606th Air Base Wing (MAC) Kirtland Air Force Base,
New Mexico, 15 FLRA 580 (Proposal 4). Thus, as Provision 14 also could
have the effect of requiring the Agency to grant leave without regard to
the necessity for the employee's services during the period covered by
the request, it interferes with management's right to assign work. See,
American Federation of Government Employees, AFL-CIO, International
Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA
333 (1984) (Proposal 1). We reach this conclusion regardless of the
fact that the provision would require that requests for advanced sick
and annual leave be granted only "when possible." This language would
subject management's determination that it is not possible to grant such
a leave request because of workload requirements to review in an
arbitration proceeding. Therefore, it does not remove the limitation
imposed by the provision on management's exercise of its right to assign
work under section 7106(a)(2)(B). See, for example, American Federation
of Government Employees, AFL-CIO, Mint Council 157 and Department of the
Treasury, Bureau of the Mint, 19 FLRA 640, 645 (1985).
Further, the Union's reliance on subchapters 3-4c and 4-3c of FPM
chapter 630 to support its position that the provision is negotiable is
misplaced. That is, while those two subchapters provide an agency with
the discretion to grant advance annual and sick leave respectively, they
do not specifically contain the additional language requiring that such
leave will be granted when possible. Provision 14 therefore, goes
beyond what is provided in the regulations. Moreover, while the Union
has correctly pointed out that insofar as an agency has discretion
regarding a matter affecting conditions of employment, it is obligated
under the Statute to exercise that discretion through negotiations,
there is no duty to bargain where the provision is precluded by
regulatory or statutory provisions. National Treasury Employees Union,
Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA
748, 759-60 (1980). Negotiations are precluded in terms of this
provision by section 7106(a)(2)(B) of the Statute, as indicated above.
Based on the foregoing, we find that Provision 14 directly interferes
with management's right to assign work, under section 7106(a)(2)(B) of
the Statute. It is, therefore, outside the duty to bargain.
The Employer and the union agree to establish a Labor
Management Relations Committee (LMR Committee) . . . the BLM
agrees to include on its team a Deputy State Director or higher
level official . . . (Only the underscores portion is in dispute.)
The Agency contends that the disputed portion of the provision is
nonnegotiable because it violates management's right to assign work.
The Union contends that the proposal concerns matters relating to
conditions of employment over which the Agency retains discretion to
negotiate and is within the duty to bargain.
Like Provision 8 in this case, Provision 15 concerns the assignment
of certain tasks to particular personnel. Thus, Provision 15 is
nonnegotiable on the same basis and for the same reasons as Provision 8.
That is, it conflicts with management's right to assign work under
section 7106(a)(2)(B) of the Statute.
Further, like Provision 8 in this case, this provision in
nonnegotiable only because it requires that particular personnel will
perform certain tasks, a requirement which appears to be subsidiary to
the basic intent of the provision. Accordingly, our comments in
connection with Provision 8, concerning the avoidance of such defects
are equally applicable here.
(c) No employee acknowledging medical/behavioral problems shall
be terminated without first having the opportunity to avail
himself/herself of professional help . . .
(d) Except when such accommodation would cause undue hardship,
Employer will not take disciplinary or adverse actions against an
employee for performance and/or conduct related to the employee's
medical/behavioral problems during the time the employee is
enrolled in the rehabilitation program and is making satisfactory
progress.
(e) Before any discipline is taken toward an ill employee who
has committed an infraction resulting from drug abuse or illness
and who is undergoing rehabilitation treatment, consideration must
be given to whether the employee has suffered a temporary relapse
rather than failed completely in rehabilitation efforts.
The Agency contends that all three parts of the provision interfere
with its right to discipline. The Union contends that the provision
concerns negotiable procedures which affect conditions of employment and
is an appropriate arrangement for adversely affected employees within
the meaning of section 7106(b)(3) of the Statute. Additionally, the
Union contends that part (c) of the provision reflects the intent of law
and regulation.
The Members of the Authority disagree over the negotiability of this
portion of the provision. The Decision and Order and Chairman Calhoun's
separate opinion on Provision 16(c) follow this decision.
Section (d) would prohibit the Agency from taking disciplinary or
adverse actions against an employee for performance and/or conduct
related to the employee's medical/behavior problems during the time the
employee is enrolled in a rehabilitation program and is making
satisfactory progress unless such accommodation causes "undue hardship."
Although the Union states that it intends the provision to permit the
Agency to take whatever disciplinary action it judges is necessary to
effectively and efficiently accomplish its mission, there is no evidence
in the record of what is intended by the phrase "undue hardship."
We conclude that this section of the provision could subject to
arbitral review Agency determinations to discipline its employees. For
example, if in the Agency's view an employee enrolled in a
rehabilitation program is not making satisfactory progress, it would
have to justify its decision to discipline such an employee by showing
"undue hardship." In our view, section (d) is to the same effect as
Proposal I found nonnegotiable in National Treasury Employees Union and
Internal Revenue Service, 6 FLRA 522 (1981). In that case, Proposal I
prohibited the agency from instituting discipline with respect to
employees who are active participants in a recognized drug/alcoholism
program and required the agency to stay disciplinary action with respect
to employees who enter such a program. The Authority found that because
the proposal precluded the agency from taking disciplinary action
against an employee unless the employee stopped participating in the
program it granted employees the option to totally deny the agency's
statutory authority by participating in such a program. Thus, the
Authority concluded that Proposal I in that case violated management's
right to discipline employees under section 7106(a)(2)(A) of the
Statute. Based on Internal Revenue Service, we find that section (d)
also interferes with management's right to discipline under section
7106(a)(2)(A).
The Union submits that section (d) of this provision is an
appropriate arrangement for adversely affected employees under section
7106(b)(3). As the Authority indicated in Kansas Army National Guard,
21 FLRA 24 (1986), when a proposal interferes with a management right
and the proposal is intended to be an appropriate arrangement, a
determination will be made as to whether the arrangement is appropriate
or whether it is inappropriate because it excessively interferes with
the exercise of the management right.
The provision would undoubtedly benefit employees by preventing the
institution of disciplinary or adverse action. In our view, however,
this benefit is outweighed by the infringement on management's right.
As long as an employee was making "satisfactory progress" in any
rehabilitation program the Agency would be required to demonstrate
"undue hardship" in order to exercise its right to discipline. This is
so despite the extent of the conduct or performance deficiencies or the
length of time the employee has been enrolled in the program.
Therefore, we conclude that section (d) excessively interferes with
management's right to discipline its employees and thus, does not
constitute an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute.
This section would require the Agency to consider whether an employee
who is undergoing rehabilitation treatment has suffered a temporary
relapse rather than having failed completely in rehabilitation efforts
before taking disciplinary action against the employee for conduct
resulting from drug abuse or illness.
Contrary to the Agency's assertion, this section would not interfere
with the Agency's right to discipline. It would merely require the
Agency to give consideration to a particular factor -- whether the
employee has suffered a temporary relapse -- before taking the
disciplinary action. As such, this section constitutes a negotiable
procedure under section 7106(b)(2) of the Statute.
To summarize our conclusions on Provision 16, we find that section
(d) of Provision 16 directly interferes with management's right to
discipline its employees under section 7106(a)(2)(A) and does not
constitute an appropriate arrangement under section 7106(b)(3), because
it excessively interferes with that right. Therefore, section (d) is
outside the duty to bargain. Section (e) of Provision 16 constitutes a
negotiable procedure under section 7106(b)(2) of the Statute. It is
therefore within the duty to bargain.
The petition for review relating to the sentences of the provisions
concerning which the Union withdrew its allegations of negotiability,
and Provisions 8, 11, 12, 13 (the third disputed sentence), 14, 15, and
section (d) of Provision 16, is dismissed. The Agency shall rescind its
disapproval of Provisions 1, 2, 3, 4, 5, 6, 7, 10, 13 (the first and
second disputed sentences), and section (e) of Provision 16 which were
bargained on and agreed to by the parties at the local level. /6/
Issued, Washington, D.C., November 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
When the Employer proposes a suspension of an employee for
fourteen (14) days or less, the employee shall be given a written
notice of the proposed suspension which shall:
(1) contain the specific reasons for the proposed suspension;
(2) inform the employee of the right to union representation;
(3) provide at least fifteen (15) calendar days in which the
employee may answer the proposal orally and/or in writing;
(4) contain the name of the official to whom an answer may be
directed; and
(5) inform the employee that any request for an extension of
time in which to reply must be made to the deciding official prior
to the expiration of the specified notice period.
The deciding official must not be the proposing official. A
decision by the deciding official must be made as soon as
practicable following the reply or the expiration of the notice
period. The deciding official will give every reasonable
consideration to the written and/or oral response of the employee
in his/her decision to suspend or not suspend the employee. The
effective date of a suspension under this article will be not less
than (10) days from the date of the decision letter. (Only the
underscored portions are in dispute.)
The Agency contends that because the first disputed sentence requires
officials outside the Arizona State Office bargaining unit to make the
final disciplinary decision it is nonnegotiable. The Agency also
contends that this part of the provision violates management's rights
under section 7106(a)(2)(B) to assign work and under section 7106(a)(1)
to determine its organization. In support, the Agency relies on
American Federation of Go-ernment Employees, AFL-CIO, Local 1858 and
Department of the Army, U.S. Army Missile Command, Redstone Arsenal,
Alabama, 10 FLRA 440 (1982) (Proposal 2).
The Union contends that the first disputed sentence is an appropriate
arrangement, under section 7106(b)(3) of the Statute, for employees
adversely affected by the exercise of management's right to discipline.
It denies that this part of the provision conflicts with management's
rights. As to the second disputed sentence, the Union contends that it
does not interfere with management's right to make determinations as to
when to discipline and is negotiable under section 7106(b)(3). The
Union also states that as the provision is based on 5 U.S.C. Section
7503 which provides employees with certain procedural due process
protections, it would not have harmful effects on management's right to
discipline, as asserted by the Agency.
The Agency asserts that this portion of the provision violates
management's right under section 7106(a)(2)(B) to make determinations as
to when to discipline. It also contends that the provision would
impermissibly dilute the effects of a decision to discipline and
interfere with the Agency's ability to perform its functions.
The Union contends that it does not interfere with management's right
to make determinations as to when to discipline and is negotiable under
section 7106(b)(3). The Union also states that as the provision is
based on 5 U.S.C. Section 7503, which provides employees with certain
procedural due process protections, it would not have harmful effects on
management's right to discipline, as asserted by the Agency.
As explained by the Union, the intent of this part of the provision
is to require that someone other than the proposing official make a
final determination on a discipline action in order to assure that
affected employees will obtain a fair evaluation of their respective
cases before the discipline is imposed.
In our view, this part of the provision is inconsistent with
management's right to assign work under section 7106(a)(2)(B) since it
would prevent the Agency from making the proposing official the deciding
official as well. We find, however, under the test articulated in
Kansas Army National Guard, 21 FLRA 24 (1986), that this portion of the
provision constitutes an appropriate arrangement within the meaning of
section 7106(b)(3).
The Union indicates that the intent of this sentence is to assure
that the principles of due process and fundamental fairness will be
accorded to employees who are suspended. The Union cites to past
instances in which the individual who was both the proposing and
deciding official failed to adequately investigate cases which had the
effect of preventing the affected employees from obtaining a fair
evaluation of their cases.
We find that this portion of the provision is designed to be an
arrangement for employees adversely affected by the exercise of
management's right to assign work. The Union is seeking to avoid
situations in which employees would be harmed by the failure to conduct
adequate investigations. We find further that this arrangement is
appropriate since the benefits to be gained from promoting the
principles of due process and fundamental fairness outweigh the
interference with management's right to assign work. Additionally, this
portion of the provision would simply distinguish between the proposing
official and the deciding official. It would not prevent the Agency
from assigning the duties to these officials altogether.
In finding the first portion of the provision to be an appropriate
arrangement and therefore within the duty to bargain, we must reject the
Agency's other contentions.
First, we reject the Agency's claim that the first sentence requires
officials outside the Arizona State Office to make the final decision.
There is nothing in the first sentence which specifies any particular
level within the Agency where the final decision will be made.
We also find that there is nothing in the specific language of the
first sentence which requires the Agency in any manner to modify its
organizational structure. Thus, the first sentence does not interfere
with the Agency's right to determine its organization under section
7106(a)(1). Internal Revenue Service, Atlanta District, 22 FLRA 314
(1986) (Proposal 1).
In our view, the disputed sentence is similar to a provision found
negotiable in National Treasury Employees Union and Department of the
Treasury, 24 FLRA 494 (1986), petition for review filed sub nom.
Department of the Treasury v. FLRA, No. 87-1084 (D.C. Cir. Feb. 13,
1987), which required a 10-day delay before nonbargaining unit employees
could be considered for selection to a position. As stated in that
decision, proposals which do not prevent management from acting at all
with respect to a management right constitute negotiable procedures
within the meaning of section 7106(b)(2) of the Statute. See also
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603,
625 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d
1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945
(1982). Because this portion of the provision does not prevent
management from acting at all in the exercise of its reserved rights, it
does not directly interfere with any of the management rights alleged by
the Agency. Rather it constitutes a negotiable procedure under section
7106(b)(2) of the Statute.
The Authority's decision in National Federation of Federal Employees
and U.S. Department of the Interior, U.S. Geological Survey, Eastern
Mapping Agency, 21 FLRA 1105 (1986) (Provision 1) does not require a
contrary result. In that case, the provision required that any
disciplinary action resulting in removal would not be effected for at
least 10 working days. The Authority found that the provision was
inconsistent with 5 U.S.C. Section 7513(b)(1) since it would prevent the
agency from exercising its right to immediately remove an employee when
there was reasonable cause to believe that the employee had committed a
crime punishable by imprisonment. The provision was also found to be
inconsistent with section 7106(a)(2)(A) and (B) of the Statute which
protects the authority of management to hold employees accountable for
meeting standards regarding their work performance. In other words,
once the employee was put on notice that management had decided to
terminate his or her employment and had fixed a separation date,
management would have no effective method of holding the employee
accountable for failing or refusing to carry out assigned work during
the additional 10-day period set forth in the provision.
The second disputed sentence of Provision 9 is different from U.S.
Geological Survey in one important respect. The provision in that case
addressed removal actions. The provision here concerns suspensions of
14 days or less. 5 U.S.C. Section 7513(b)(1) is not applicable to such
suspensions. Also inapplicable is the rationale underlying the finding
of an inconsistency with section 7106(a)(2)(A) and (B). Here, nothing
would prevent the Agency from continuing to hold employees accountable
for meeting the standards established for their work performance.
In conclusion then, we find this portion of the provision to be
within the duty to bargain. As a result of this analysis, it is
unnecessary to address the Union's contention that this portion of the
provision constitutes an appropriate arrangement under section
7106(b)(3) of the Statute.
Provision 16 is set forth on page 28. Section (c) of the provision
would prohibit the Agency from terminating an employee who acknowledges
medical/behavioral problems without first permitting the employee to
seek professional help.
In our view, this section would merely delay the exercise of
management's right to discipline. In this manner, section (c) is to the
same effect as a proposal the Authority found negotiable in American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2910
and Library of Congress, 11 FLRA 632 (1983) (Proposal 5). The proposal
in that case required the agency to give employees with a drug/alcohol
abuse problem who accepted assistance in the agency's rehabilitation
program a reasonable opportunity to improve their performance before
being subject to adverse action. As with the provision in this case,
the only effect of the proposal was to delay the imposition of
discipline. Moreover, as more fully explained in Library of Congress,
applicable OPM regulations, namely, FPM Supplement 792-2, subchapter
5-1c, specifically define the objective of Federal drug abuse programs
as being rehabilitative rather than punitive. Section (c) is fully
consistent with that objective.
In view of our finding that section (c) does not interfere with the
Agency's right to discipline, it is unnecessary to address the Union's
additional contention that the section constitutes an appropriate
arrangement under section 7106(b)(3).
The Agency must rescind its disapproval of Provision 9 and section
(c) of Provision 16. /7/
Issued, Washington, D.C., November 6, 1987
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Provision 9 concerns disciplinary actions and provides, in relevant
part that (1) a deciding official must not be the proposing official;
and (2) the effective date of a suspension will be not less than 10 days
from the date of the decision letter. My colleagues conclude that the
first part is negotiable an an appropriate arrangement under section
7106(b)(3) of the Statute, and that the second part is negotiable
because it does not prevent the Agency from "acting at all" to exercise
its rights. I agree with my colleagues' on the first part of the
provision.
However, I disagree with my colleagues' determination that the second
part of Provision 9 is negotiable. In my view, the Agency's right to
discipline, like other management rights under section 7106(a) of the
Statute, includes the right to determine when the discipline will be
effected. See, for example, my opinion in National Treasury Employees
Union and Department of the Treasury, 24 FLRA No. 54 (1986), petition
for review filed sub nom. Department of the Treasury v. FLRA, No.
87-1084 (D.C. Cir. February 13, 1987) (concerning the right to select).
The second part of Provision 9 requires that a decision to discipline be
effected no earlier than 10 days following the date of the decision
letter. As such, I conclude that the proposal directly and to an
excessive degree conflicts with management's right to discipline.
The Union asserts that the second part of Provision 9 constitutes an
appropriate arrangement under section 7106(b)(3) for employees adversely
affected by the exercise of management's right to discipline. I
disagree. In National Association of Government Employees, Local R14-87
and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority held
that the determination of what constitutes an appropriate arrangement
involves weighing the benefits to employees of the proposed arrangement
against the effect of the proposal on management's rights.
Subsequently, in International Plate Printers, Die Stampers and
Engravers Union of North America, AFL-CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA
No. 9 (1987) (Provision 22), the Authority held that a proposed
arrangement for employees adversely affected by the agency's exercise of
its right to discipline was not "appropriate" within the meaning of
section 7106(b)(3). The Authority noted that the proposal concerned
actions taken as a result of the "fault" of the employees involved. Id.
slip op. at 20.
Like the proposal in Bureau of Engraving and Printing, Provision 9 in
the instant case involves employees who are at "fault." Further, the
Union's proposal in this case applies to all suspensions, without regard
to their durations or to the employee's conduct giving rise to the
suspension. For example, the proposal would treat suspensions of
employees whose conduct may pose a threat to other employees or be
otherwise disruptive to the work situation the same was as suspensions
of employees in situations where those considerations are not present.
In fact, in situations where the Agency found that the immediate
suspension of an employee was necessary, the proposal would totally
frustrate the Agency's exercise of this right. As such, although I
might conclude that in other circumstances a similar proposal would be
negotiable, I find that the second part of Proposal 9 excessively
interferes with the exercise of the right to discipline and does not
constitute an appropriate arrangement.
Provision 16 (c) provides that "(n)o employee acknowledging
medical/behavioral problems shall be terminated without first having the
opportunity to avail himself/herself of professional help." My
colleagues conclude that the provision is negotiable because it merely
delays the Agency's exercise of its right to discipline.
In my view, the provision is not sufficiently specific for me to rule
on its negotiability. It is clear that the Agency has legal obligations
with respect to certain handicapping conditions. See, for example, 29
C.F.R. Sections 1613.702, 1613.704. Based on the record in this case,
however, I am unable to determine whether or not the Union intends this
provision to simply incorporate existing requirements in this area.
As I have stated before, I believe that the Authority should not rely
on the "delay/acting at all" standard in determining the negotiability
of proposals but rather, should examine the real effects of proposals on
management's rights. See my opinion in Department of the Treasury, 24
FLRA 494 (1986), discussed above in connection with Provision 9. Since
the provision in this case refers only to "medical/behavioral"
probelems, and since the record is unclear as to whether the Union
intends the provision to merely incorporate existing obligations, I am
unable to determine whether, and to what extent, the proposal may
conflict with law, including management's rights under section 7106 of
the Statute. Accordingly, I would dismiss the Union's petition as to
this section of Provision 16.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) This provision initially contained a second disputed sentence
which the Union subsequently withdrew from consideration in its Reply
Brief. Accordingly, the second disputed sentence will not be considered
further here.
(2) Section 7116(a)(7) provides as follows:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(7) to enforce any rule or regulation (other than a rule or
regulation implementing section 2302 of this title) which is in
conflict with any applicable collective bargaining agreement if
the agreement was in effect before the date the rule or regulation
was prescribed(.)
(3) This provision initially contained a second disputed sentence
which the Union subsequently withdrew from consideration in its reply
brief. Accordingly, the second disputed sentence will not be considered
further here.
(4) Section 7131(d) provides:
Section 7131. Official time
(d) Except as provided in the preceding subsections of this
section --
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
(5) The Union has withdrawn from its petition for review an
additional disputed sentence which was originally a part of this
provision. It, therefore, will not be considered further in this
decision.
(6) In finding these Provisions to be within the duty to bargain, we
make no judgment as to their merits.
(7) In finding these matters to be within the duty to bargain, we
make no judgment as to their merits.
29 FLRA NO. 121
Dep't of Justice, Kennedy Center, Federal Correctional Institution,
Bureau of Prisons and Local 2441, AFGE, Case No. 3-CA-60150, (Decided
November 6, 1987)
7106(b)(1)
7116(a)(1) and (5)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
CLOTHING
CLOTHING
UNIFORMS
REQUIREMENT THAT UNIFORMS BE WORN
METHODS AND MEANS OF PERFORMING WORK
CLOTHING
The Authority adopted the Administrative Law Judge's Decision and
recommended Order dismissing an unfair labor practice complaint which
alleged that the Agency had violated section 7116(a)(1) and (5) by
refusing to negotiate concerning the substance of a official uniform
clothing regulation which changed uniform regulations; by refusing to
bargain with the Union over proposals it submitted; and by unilaterally
implementing the new regulation. The Judge had determined that the
matter at issue, uniform wearing, in the circumstances of the case,
constituted a "means" under section 7106(b)(1) and is therefore
nonnegotiable. Accordingly, the refuse to negotiate on the substance of
this matter is not a violation. The Agency had afforded the Union an
opportunity to negotiate on impact and implementation.
Member McKee issued a separate opinion concurring in part and
dissenting in part, particularly disagreeing with the 7106(b)(1)
application to the proposal as it relates to employees who do not deal
directly with the public.
Case No. 3-CA-60150
U.S. DEPARTMENT OF JUSTICE KENNEDY CENTER, FEDERAL CORRECTIONAL
INSTITUTION, BUREAU OF PRISONS
Respondent
LOCAL 2441, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint. 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 negotiate with the Charging Party concerning the substance
of the Respondent's changes in local uniform requirements for
Correctional Officers and by unilaterally implementing the requirements.
The General Counsel filed exceptions to the Judge's Decision.
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 dismissing the complaint.
Issued, Washington, D.C., November 6, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
For the following reasons I disagree with my colleagues' decision to
adopt the Administrative Law Judge's findings, conclusions and
recommended Order dismissing the complaint in this case.
As noted by the Judge, it is well established that in order to
constitute a "means" of performing work within the meaning of section
7106(b)(1) of the Statute, there must be a direct and integral
relationship between the particular instrumentality an agency chooses to
use and the performance of the agency's work. American Federation of
Government Employees, AFL-CIO, Local 3525 and United States Department
of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982); American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 618-19
(1980), enforced as to other matters sub nom. Department of Defense v.
FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982); National Treasury Employees Union and U.S.
Customs Service, Region VIII, San Francisco, California, 2 FLRA 255
(1979).
Thus, in disputes involving proposals related to management's choice
of a particular methods and means, the Authority has held that unless
the proposal directly interferes with the job-related purpose for which
the agency established the particular methods or means it will not be
found violative of management's right under section 7016(b)(1).
In this respect, the Authority held, in U.S. Customs Service, Region
VIII, that a proposal permitting uniformed Customs officers to use other
than their actual full names on nameplates did not prevent management
from requiring that officers wear nameplates and did not interfere with
management's stated purpose for the nameplates which was to personalize
the Customs Service and facilitate the public's dealings with the
officers. Consequently, the Authority found that proposal did not
interfere with management's right to determine the methods and means of
performing work.
Similarly in American Federation of Government Employees, AFL-CIO,
National Immigration & Naturalization Council and U.S. Department of
Justice, Immigration & Naturalization Service, 8 FLRA 347, 349-51 (1982)
the Authority found that Proposal 2 in that case which provided that
numbers or some combination of letters and numbers rather than names be
used on identification plates to be worn by uniformed employees did not
interfere with management's stated purpose for the plates, which was to
provide for identification of the officers and facilitate the work of
supervisory personnel. Thus, the Authority held that Proposal 2 did not
interfere with management's right under section 7106(b)(1) to determine
the methods and means of performing work. The Authority also determined
that Proposal 3 in that case which provided for grooming standards
varying from the agency's grooming standards did not directly interfere
with management's right to determine the methods and means of performing
work. Although Proposal 3 provided for grooming standards different
from the agency's grooming standards it included the express
qualification that personal appearance and grooming will not impede the
general public's ready identification of the employee as a
representative of the Immigration and Naturalization Service. Thus, the
Authority found that Proposal 3 did not interfere with management's
purpose for the grooming standards which was to ensure that officers
were readily recognized as representatives of the agency in their
dealings with the public.
Another example occured in U.S. Department of Justice, Immigration
and Naturalization Service, 18 FLRA 29 (1985) where the Authority found
that an arbitrator's award directing the Border Patrol to continue to
permit agents to wear Levis-style trousers as part of their uniform did
not conflict with management's right to determine its methods and means
under section 7106(b)(1) because the Levis-style trousers were
essentially identical to the uniform trousers in appearance and thus did
not conflict with the agency's stated purpose that a uniform be worn to
readily identify the wearer as a representative of Governmental
authority.
Finally, in American Federation of Government Employees, AFL-CIO,
Local 1625 and Department of the Navy, Naval Air Station, Oceana,
Virginia, 25 FLRA 1028 (1987) a proposal which modified the prescribed
uniform for firefighters to permit tee shirts and ball caps to be worn
in circumstances where the firefighters performed duties which did not
deal with the public was found not to directly interfere with
management's right to determine its methods and means because in these
circumstances the proposal did not interfere with management's stated
purpose that a uniform be worn to readily identify firefighters.
In each of these cases it was clear that the Agency's choice of the
particular methods and means of performing work was to facilitate the
ability of employees to carry out their assigned duties in furtherance
of the agency's mission. In each of the previously mentioned cases the
Authority found that while the particular proposal may have been
inconsistent with the uniform wearing requirements established by the
agency, the proposal was nevertheless negotiable because it did not
directly interfere with the agency's ability to accomplish its work
which was the basis for the uniform wearing requirement in the first
place.
Other examples of proposals involving uniforms which were found to be
negotiable because they did not interfere with the stated purpose for
the uniform are set forth in an appendix to my opinion.
In this case, the purpose of the prescribed uniform is to enhance the
image of Correctional Officers in order to obtain the cooperation of the
inmates and the public. Although not specifically stated, it is clear
that such cooperation is necessary for Correctional Officers to
effectively carry out their assigned tasks. The Union, however, was not
seeking to negotiate the requirement that Correctional Officers wear a
uniform. Rather, the Union sought to negotiate concerning Respondent's
changes in local requirements designating the periods for wearing summer
and winter uniforms and directing the wearing of particular items, that
is, blazers and neckties, in certain conditions and circumstances.
Specifically, the Union opposed the Respondent's use of the
summer/winter concept, the mandatory use of neckties, the mandatory use
of blazers and neckties at certain posts involving daily contact with
the public.
In my view, the decision to require Correctional Officers to wear a
uniform is directly related to its stated purpose of enhancing the image
of Correctional Officers in order to obtain the cooperation of the
inmates and the public. Thus, this decision to require wearing uniforms
constitutes a "means" of performing work within the meaning of section
7106(b)(1) of the Statute. Further, the decision to require the wearing
of the blazer and necktie in circumstances where Correctional Officers
have daily contact with the public also constitutes a "means" of
performing work because it directly and integrally relates to the
performance of the Agency's work.
Thus, to the extent that the Union in this case proposed to continue
the practice of permitting Correctional Officers who have daily contact
with the public to choose to not wear blazers and neckties, the proposal
directly interferes with management's stated purpose of enhancing the
image of Correctional Officers in order to facilitate cooperation of the
inmates and the public and is nonnegotiable. See National Treasury
Employees Union and U.S. Customs Service, Washington, D.C., 8 FLRA 3
(1982) (Portion of a proposal excluding uniformed personnel performing
vehicle inspections from an agency requirement for wearing uniform hats
found to interfere with management's purpose of readily identifying the
wearer as a representative of the Government and thus, found to
interfere with management's right under section 7106(b)(1) to determine
the "means" of performing work); U.S. Customs Service, Region VIII
(Proposal permitting uniformed customs officers the option of not
wearing nameplates directly interfered with the agency's stated purpose
for requiring the wearing of nameplates which was to personalize the
Customs Service and facilitate the public's dealings with the officers
and thus interfered with management's right under section 7106(b)(1) to
determine the "means" of performing work).
However, I find that as to Correctional Officers who do not deal
directly with the public, the proposal to not change the long-standing
local practice to permit officers the option to wear or not wear
specific items of the uniform does not directly interfere with
management's stated purpose in this case.
I particularly note that the Respondent's own regulation continues to
permit the optional use of blazers and neckties for Correctional
Officers who do not deal directly with the public. See Decision of the
Administrative Law Judge at n.3. In these circumstances, since the
Respondent's own policy contemplates that nonuse of a blazer and necktie
will not adversely affect the ability of Correctional Officers to obtain
cooperation of the inmates, the requirement to wear blazers and neckties
appears arbitrary and not directly related to the stated purpose for the
uniform. Thus, the Union's proposal to maintain the long-standing local
practice of permitting Correctional Officers the option to wear or not
wear blazers and neckties in these circumstances does not in my view
interfere with the Agency's right under section 7106(b)(1) to determine
the "means" of performing work.
For the foregoing reasons, I would find that negotiation on the
uniform changes implemented by the Respondent as they related to
Correctional Officers who do not directly deal with the public would not
have interfered with the Respondent's right under section 7106(b)(1) of
the Statute to determine the methods and means of performing its work.
Thus, I would conclude, contrary to the Administrative Law Judge that
the Respondent violated section 7116(a) and (5) of the Statute by
refusing to bargain with the Union on the substance of the changes in
local uniform requirements for Correctional Officers who are assigned to
areas other than where they deal directly with the public and by
unilaterally implementing those changes.
Issued, Washington, D.C. November 6, 1987.
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Long Beach Naval Shipyard, Long Beach California and Federal
Employees Metal Trades Council, AFL-CIO, 17 FLRA 511 (1985) (Where the
Authority held that the respondent Activity failed to show that
bargaining concerning the type of protective clothing to be worn by
employees would interfere with management's right to require that safety
clothing be worn).
American Federation of Government Employees, Local 217 and Veterans
Administration Medical Center, Augusta, Georgia, 21 FLRA 62 (1986)
(Where the Authority found that two proposals concerning the content of
a uniform did not conflict with management's right to determine its
methods and means because the proposal did not interfere with the
agency's stated purpose of protecting its property in a supply warehouse
by requiring all employees in the supply warehouse to wear a uniform).
Veterans Administration, West Los Angeles Medical Center, Los
Angeles, California and American Federation of Government Employees,
Local 1061, AFL-CIO, 23 FLRA 278 (1986) (Where the Authority adopted an
Administration Law Judge's decision that the Respondent agency violated
the Statute by, among other things, unilaterally eliminating a past
practice of employees wearing sweaters and jackets over their uniforms
because there was no direct relationship between the extra apparel and
the employees' duties).
Case No. 3-CA-60150
U.S. DEPARTMENT OF JUSTICE, KENNEDY CENTER, FEDERAL CORRECTIONAL
INSTITUTION, BUREAU OF PRISONS
Respondent
LOCAL 2441, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Yvonne Hinkson, Esquire
For the Respondent
Mr. James G. Dodson
For the Charging Party
Phillip Boyer, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C., against the U.S. Department of Justice, Kennedy
Center, Federal Correctional Institution, Bureau of Prisons (Respondent
or FCI, Morgantown), based on a charge filed by Local 2441, American
Federation of Government Employees, AFL-CIO (Charging Party, Local 2441,
or Union). The complaint alleged, in substance, that Respondent
violated sections 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
Statute), by refusing to negotiate concerning the substance of
Institution Supplement No. MRG 4400.1, CH 14503, dated October 30, 1985,
"Official Uniform Clothing Regulations," which changed uniform
regulations; by refusing to bargain with the union over proposals it
submitted on December 11, 1985; and by unilaterally implementing the
Institution Supplement on February 2, 1986.
Respondent's answer admitted the jurisdictional allegations
concerning the Union, Respondent, and the charge; that the Institution
Supplement changed official uniform clothing regulations; and that it
unilaterally implemented the Institution Supplement on February 2, 1986.
Respondent denied any violation of the Statute.
A hearing was held in Morgantown, West Virginia. The Respondent,
Charging Party, and the General Counsel were represented and afforded
full opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and General Counsel filed briefs, and the proposed findings have been
adopted where found supported by the record as a whole. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of facts, conclusions of law,
and recommendations.
At all times material herein, the American Federation of Government
Employees, Council of Prison Locals, has been, and remains, the
exclusive representative of a nationwide unit of employees of the
Federal Prison System, including employees of FCI Morgantown.
At all times material herein, the Union has been, and is now, the
agent of the American Federation of Government Employees, Council of
Prison Locals, acting upon its behalf in representing the bargaining
unit employees who are employed at FCI Morgantown.
The FCI, Morgantown is a low security penal institution. As such it
is responsible for the care and custody of from 350-400 non-violent
persons convicted of Federal crimes and sentenced by the courts to serve
a period of time incarcerated in a Federal penal institution. Inmates
who become violent are transferred to other institutions.
The Bureau of Prisons dress uniform for male Correctional Officers
prescribed by FPS 440.1, CH 14505, of February 8, 1982, is composed of a
navy blue blazer, charcoal gray trousers, blue, white, or yellow shirt,
black shoes and socks, black belt, and black or maroon necktie. This is
sometimes referred to as the fall or winter uniform. Traditionally the
summer service uniform is an abbreviated version that allows for leaving
the blazer and tie off and wearing a short-sleeved shirt. Correctional
Officers receive a uniform allowance pursuant to 5 U.S.C. Section 5901
to purchase the prescribed uniform.
Correctional Officers are responsible for security and inmate
accountability. Their duties and the degree of their contact with the
public varies depending on the post to which they are assigned.
Correctional Officers assigned to the visiting room and the front
gatehouse have constant daily contact with the public. Officers
assigned to the control room communications center have some contact
with the public on the day shift, none on other shifts. Correctional
Officers assigned to the mail room who take mail to the post office have
some contact with the public as do officers assigned to provide guard
service at the hospital. Officers assigned to transport prisoners have
some contact with service station attendants along the way. Their meals
are provided by box lunches. Officers assigned to the administrative
systems supervisor have some contact with personnel of other law
enforcement agencies.
Correctional Officers in the units each deal with 70 to 90 inmates.
They maintain inmate accountability, run chore details, and perform some
manual labor by searching living quarters and property and performing
room inspections. They must sometimes search rooms on their hands and
knees and move property around. They perform a variety of other duties.
They do not have daily contact with the public.
Prior to October 19, 1985, Correctional Officers at FCI, Morgantown
customarily wore parts of the prescribed Bureau of Prisons uniform
consisting of charcoal pants, white or blue shirts (either short or
long-sleeved), black shoes, black socks, and a black belt. Most
Correctional Officers did not customarily wear the navy blue blazer and
black or maroon necktie while on duty, nor was there a local requirement
that the blazer and necktie be worn. The wearing of the blazer and
necktie was optional. If the blazer were worn, then a necktie would be
worn with it. A majority of the Correctional Officers wore the slacks
and an open collar shirt during the months from April until November.
From November to April some of them wore the blazer and necktie. They
could also wear the long-sleeved shirt with an open collar during the
winter months.
The uncontradicted testimony of two Union witnesses established that
the lack of a blazer and tie while on duty was not a hindrance to the
performance of the Correctional Officers' job duties, never created any
adverse publicity, and caused no difficulties in distinguishing between
officers and inmates.
Between 1981 and October 1985 at FCI Morgantown there were no
separate clothing requirements for winter and summer seasons, no
scheduling of changes between winter and summer seasons, nor any
requirement that officers at certain posts wear blazers and neckties at
all times. Correctional Officers could wear the uniform while stopping
at a business establishment for personal reasons on the way to work
(except perhaps a bar).
On or about October 30, 1985 Respondent issued a draft Institutional
Supplement Number MRG 4400.1, CH 14503, which proposed changes in the
clothing requirements for Correctional Officers by, inter alia,
designating winter and summer seasons for clothing, requiring that
neckties be worn during the winter season or when long-sleeved shirts
are worn, requring that blazers and neckties be worn at certain posts,
and prohibiting the wearing of the uniform in public except while on
duty, official business, or to and from work.
By memorandum dated November 27, 1985 the Union requested to
negotiate the Institution Supplement. FCI Morgantown replied by letter
dated December 3, 1985 stating that the Supplement was subject to impact
and implementation bargaining and requesting submission of such
proposals by December 13, 1985. The Union responded by letter dated
December 11, 1985 contending, inter alia, that the Union was not limited
to bargaining over the impact and implementation of the Supplement and
submitting initial proposals. /1/ The Union's proposals, with regard
the changes in issue, opposed the summer/winter concept, the mandatory
use of neckties, the mandatory use of neckties with long-sleeved shirts,
and the mandatory use of blazers and neckties at certain posts.
By letter dated December 12, 1985, FCI Morgantown informed the Union
that it considered the Union's proposals to be substantive and
non-negotiable, but had determined that several of the Union's suggested
changes were appropriate and had revised the proposed supplement
accordingly. /2/ Subsequently, the Warden spoke to the Union by
telephone and reiterated that he was willing to bargain over the impact
and implementation of the draft Institution Supplement, but that he
would not bargain over the substance of the proposed changes. The only
reason given by the Warden for not bargaining over substance was that
the proposed changes were derived from Respondent's program statement.
The Warden never indicated that he did not have the authority to
negotiate over the proposed changes if he so desired. Subsequent to
this discussion, the Union and the Warden did not have any negotiations
or substantive discussions on the issue prior to the issuance of the
revised Institution Supplement on February 2, 1986.
On or about February 2, 1986, FCI, Morgantown, issued the revised
Institution Supplement on uniform clothing regulations and provided a
copy to the Union. The policy of the Institution Supplement was stated
to be: "to set and maintain high standards of personal appearance for
all staff members and to establish a positive image in their role as
uniformed personnel." The revised Institution Supplement directed
certain changes in the required clothing for Correctional Officers at
FCI, Morgantown, including: (a) the requirement of a winter and summer
season for clothing; (b) the requirement that a necktie must be worn
during the winter season, and any time a long-sleeved shirt is worn by a
Correctional Officer; and (c) the requirement that at certain posts
Correctional Officers must wear a blazer and tie at all times. /3/
Prior to the issuance of the February 2 Institution Supplement,
Respondent at no time notified the Council of Prison Locals, at the
national level (as distinct from notifying the Union local at FCI,
Morgantown) of the proposed changes, nor did the Respondent discuss or
negotiate the proposed changes at FCI Morgantown with the National
Council of Prisons Locals at any time.
Since the changes have been made, some Correctional Officers have
expressed concern that the necktie, although it is a clip-on and would
break away if pulled on, could be used as a choke weapon due to its
length. They have also expressed concern that the blazer could be
flipped over the head to put the officer at a disadvantage in a crisis
situation, and some have complained that the necktie and/or blazers make
the work more uncomfortable.
The Bureau of Prisons considers the uniform to be an integral part of
the duties of Correctional Officers. The non-militaristic, non-policy
type uniform presents a professional image to the inmates and elicits
their cooperation while making the officers separately identifiable from
the inmates in emergent conditions. The uniform also serves to present
a professional, polished identifiable image to the public, including
other federal employees, local law enforcement officers, attorneys, and
family members of the inmates.
On February 8, 1982 the Bureau of Prisons formulated at the national
level PS 4400.1, Procurement and Warehousing Management Manual (Program
Statement). (Res. Ex. 2). Under its provisions, a clothing committee,
on which the Union is represented, is established which "is responsible
for prescribing the required uniforms." Curiously, the Director retains
"all authority for prescribing what the mandatory uniform will be." The
Program Statement provides that employees are to wear "the approved
uniform while performing their official duties" and it establishes a
male and female dress uniform and a male and female work uniform. The
male dress uniform has been described above.
When a change is issued on a Program Statement the Union at the
national level is sent a copy of the proposed changes and given the
opportunity to bargain only the impact and implementation of the
changes. The Union at the national level is not permitted to bargain
substantively over the changes as the Agency does not consider the
prescribing of the uniform to be a negotiable issue. The Union at the
national level did not request impact and implementation bargaining over
the February 8, 1982 Policy Statement.
At the local level the institution enacts implementing instructions
through the use of an Institution Supplement. Accordingly to Article 9,
section e and f of the Master Agreement, Institution Supplements "which
derive from a Bureau Program Statement" are "subject to negotiation with
the local Union, subsequent to the issuance and implementation of the
policy and where required by 5 U.S.C., Sections 7106, 7114, 7117." Any
other local issuances are subject to local negotiation prior to
implementation. (Joint Ex. 1).
Under Article 9, Section (b) of the Master Agreement dated September
15, 1981 through September 14, 1983, local supplemental agreements could
not deal with permissive matters. However, Article 9, Section c,
provided that notwithstanding this limitation, certain matters,
including the optional use of short-sleeved shirts, blazers and neckties
and the scheduling of changes between summer and winter uniforms, could
be negotiated locally. (Joint Ex. 2, p. 8). Under the Master Agreement
now in effect, this specific provision no longer appears. However,
Article 9, Section b continues to provide that permissive matters, or
those matters negotiated at the national level, may not be negotiated at
the local level. Article 9, Section c provides that, notwithstanding
section b, "the parties may negotiate locally and include in any
supplemental agreement any matter which does not specifically conflict
with the provisions of the Master Agreement." (Joint Ex. 1, p. 10).
There is no dispute that FCI Morgantown changed established
conditions of employment by designating winter and summer seasons for
the wearing of the winter and summer uniforms, requiring that neckties
be worn during the winter season or when long-sleeved shirts are worn,
and requiring that blazers and neckties be worn at certain posts.
Respondent offered the Union the opportunity to bargain concerning the
impact and implementation of such changes. The Union requested to
bargain concerning the substance of the changes, and its initial
proposals concerning the changes in issue were simply that the changes
not be made. The effect of the Union's proposals would be that
Correctional Officers would continue to be permitted the option of
wearing a necktie and blazer at all posts and no seasons would be
designated for wearing the winter and summer uniform. Respondent
refused to bargain concerning its decision to effectuate the changes.
The central issue in this case, as succinctly stated by Counsel for
the General Counsel, is whether these changes in the uniform implemented
by FCI Morgantown were substantively negotiable and, if so, whether FCI
Morgantown unlawfully refused to bargain over the decision to make such
changes. The General Counsel asserts that the changes implemented by
FCI Morgantown were substantively negotiable as there is no relationship
between the changes in clothing implemented by Respondent and the
performance of the Correctional Officers' job duties. The General
Counsel points out that the absence of blazers and ties had not been a
hindrance to the employees' job performance, and the requirement that
they be worn made job performance more difficult and dangerous. The
General Counsel also argues that the changes were not necessary to
present a proper image to the public as the unrebutted evidence of the
Union witnesses shows that the absence of blazers and ties never created
any unfavorable publicity, and the majority of the employees in question
have little or no dealings with the general public.
Respondent defends on the basis that decision making regarding
uniform clothing constitutes a method and means of performing work and
is only negotiable at its election under section 7106(b)(1). Respondent
also claims that matters covered by Bureau of Prisons Program Statements
are not substantively negotiable at the local level, and any disputes
regarding Respondent's disposition of the Union's proposals should have
been processed under the parties' grievance and arbitration procedure.
The Authority has held that, in the context of section 7106(b)(1),
"means" refers to any instrumentality, including an agent, tool, device,
measure, plan, or policy used by an agency for the accomplishing or the
furthering of the performance of its work. National Treasury Employees
Union and U.S. Customs Service, Region VIII, San Francisco, California,
2 FLRA 254 (1979). In American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
Base, 2 FLRA 603 (1980), at 618-619, the Authority reviewed the
legislative history of this section and concluded from certain
Congressional examples that the phrases "performing work" referred to
agency activities "directly and integrally related to the accomplishment
of the mission of the agency, i.e., those particular objectives which
the agency was established to accomplish." Accordingly, the Authority
has held that in order to constitute matters which may be negotiated
only at the election of the agency pursuant to section 7106(b)(1) the
matter must be principally or directly related to the performance of the
agency's work rather than merely incidental to the performance of the
agency's work. American Federation of Government Employees, AFL-CIO,
Local 3525, and U.S. Department of Justice, Board of Immigration
Appeals, 10 FLRA 61 (1982).
The Authority has recognized that where the mission of an agency
involves contact with the public, an agency may, pursuant to section
7106(b)(1), choose the "means" which will accomplish this aspect of its
work. For example, the Authority has agreed that the requirement for
Customs officers to wear nameplates encouraged employee courtesy and
facilitated the cooperation of the public with whom such employees must
work daily. Therefore such nameplates were held to constitute a "means"
of performing the work of the agency. National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
254 (1979). Similarly, in National Treasury Employees Union and U.S.
Customs Service, Washington, D.C., 8 FLRA 3 (1982), the Authority held
that the wearing of a uniform hat by Customs law enforcement officers
enabled the public to readily identify the officer, enhanced law
enforcement, and a proposal to exclude the use of such a hat was outside
the duty to bargain as a "means of performing work." Likewise, in
American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service Council and U.S.
Department of Justice, Immigration and Naturalization Service, 8 FLRA
347 (1982), reversed as to other matters sub nom. Department of Justice
v. FLRA, 727 F.2d 481 (5th Cir., 1984), the Authority noted that the
determination of an agency that its uniformed officers adhere to
grooming standards to ensure that such officers are readily recognized
by the public constituted a decision regarding the "means" of performing
the agency's work under section 7106(b)(1) of the Statute. However, the
agency had to bargain on a proposal providing appropriate arrangements
for employees adversely affected by such a decision pursuant to section
7106(b)(3).
The record reflects that the mission of FCI, Morgantown is to provide
for the case and custody of Federal inmates. The work of its
Correctional Officers in carrying out this mission involves daily
contact with inmates and, in some cases, the public, including personnel
of other law enforcement agencies. The changes made here were designed
to improve the image of Correctional Officers with the inmates and
public and facilitate their cooperation. Therefore, I agree that the
determinations of the agency in issue here with regard to uniform
clothing constituted decisions regarding the "means" of performing the
agency's work under section 7106(b)(1) of the Statute. There is a
direct relationship between the uniform requirements and the Agency's
need to obtain the cooperation of inmates and the public. Since the
agency could elect not to bargain, its failure to do so did not violate
section 7116(a)(1) and (5) of the Statute, as alleged. /4/
The fact that no adverse consequences have been identified in the
past as ensuing from the Correctional Officers being allowed to choose
whether or not to wear a prescribed blazer and tie does not mean that
management is precluded from changing its methods and means of
performing work and exercising its right under section 7106(b)(1) to
require all, or part of, the prescribed uniform to be worn. The Union's
proposal, that no change be made, that is, that employees continue to be
able to elect to wear the blazer and tie in all circumstances, would
totally abrogate the Agency's right to determine the methods and means
of performing this aspect of its work. NTEU and Customs Service, supra,
2 FLRA at 255-260.
The cases cited by the General Counsel are distinguishable. In U.S.
Department of Justice, Immigration and Naturalization Service, 18 FLRA
29 (1985) the Authority found that an arbitrator's award directing the
Border Patrol to continue to permit agents to wear Levis-style trousers
as part of their uniform did not conflict with management's rights under
section 7106(b)(1). The stated purpose for its uniform trousers was to
provide ready identification of the wearer. The Authority noted that
the Levis-style trousers did not interfere with this purpose as they
were essentially identical to the uniform trousers in appearance and had
been permitted or condoned for an extensive period of time. The
Authority reached a similar conclusion in Long Beach Naval Shipyard, 17
FLRA 511 (1985) in which it held that an agency's decision to change the
type of coveralls worn by employees was negotiable as negotiation would
not interfere with management's right under section 7106(b)(1) to
require safety clothing to be worn. In this case the agency is seeking
to enhance its image and, thereby, the cooperation of inmates and the
public by requiring that additional items of the prescribed uniform be
worn at certain times. As noted, the Union's proposals that no changes
be made would continue the practice of making the wearing of such items
voluntary and interfere with the agency's right to choose this "means"
to accomplish this aspect of its work.
In Veterans Administration, 23 FLRA 278 (1986), also cited by the
General Counsel, the Authority adopted Judge Nash's conclusion, to which
no exceptions were filed, that the agency violated the Statute by
unilaterally implementing certain changes in a dress code for employees,
including eliminating a past practice of employees wearing private
sweaters and jackets over their uniforms. Judge Nash found that
employees wore the sweaters and jackets over their lightweight uniforms
as protection from the cold and in the absence of other appropriate
items being provided. He held that the proposed dress code did not
specifically prohibit such items, there was no direct relation between
the extra apparel and the employees' duties, and the agency was,
therefore, obligated to notify the Union and bargain on proposals to the
extent negotiable and its impact and implementation.
In that case personal items were worn in addition to the prescribed
uniform for reasons of comfort and health. Here employees already have,
as part of their prescribed uniform for which they receive a uniform
allowance, the items of clothing management is now requiring to be worn
during separate winter and summer seasons and at certain posts in order
to enhance their image and, thereby, facilitate cooperation with inmates
and the public. As such, the uniform, worn during separate winter and
summer seasons and altered depending on contact with the public,
constitutes a "means" to accomplish this aspect of the work of a
Corrections Officer.
The Authority has recognized that proposed exceptions to the uniform
requirement need not be found non-negotiable in all circumstances. See
AFGE, Local 1625, and Department of the Navy, 25 FLRA No. 85, 25 FLRA
1028 (1987), in which the Authority found that a proposal which modified
the prescribed uniform for firefighters to permit tee shirts and ball
caps in limited circumstances not including meetings with the public
would not interfere with the identification of firemen, the
mission-related purpose for which the agency established the methods and
means. Here the Agency also afforded the Union the opportunity to
bargain on the impact and implementation of its decision. Thus, impact
and implementation proposals attempting to assure that the uniform
requirements were suitable for the various conditions in which employees
work would have been negotiable provided they did not directly interfere
with the purpose for which the agency has required a uniform to be worn.
See AFGE, Local 217 and VA Medical Center, Augusta, Georgia, 21 FLRA
No. 13, 21 FLRA 62 (1986). For example, it is noted that the Union did
not propose alternative dates for the winter/summer seasons or that
Correctional Officers who did not meet the public on certain shifts of
the selected posts not be required to wear the blazer and tie.
It is concluded that a preponderance of the evidence received does
not demonstrate that Respondent engaged in an unfair labor practice as
alleged in the complaint. Based on the foregoing findings and
conclusions, it is recommended that the Authority issue the following
Order:
The complaint in Case No. 3-CA-60150 is dismissed.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: May 29, 1987
Washington, D.C.
(1) The Union commented on each paragraph of the Institution Change
and offered various proposals, e.g. that emblems be affixed to blazers
without cost to employees and concerning the type of utility cap, not
dealing directly with the changes in issue. The General Counsel has not
specifically contended, or provided specific support to demonstrate,
that the failure to bargain on these proposals violated the Statute.
See 5 C.F.R. Sections 2423.18 and 2424.4. Consequently, no
determination is made concerning each of them.
(2) Among other things, the Union had pointed out that the list of
uniform requirements in the Supplement differed from that in the Federal
Prisons Systems Manual; that, according to the Manual, female officers
were not required to wear neckties; and the Union proposed a
clarification concerning the wearing of the uniform to and from work.
(3) The Institution Supplement provided, in pertinent part, as
follows:
E. Uniform clothing regulations will be addressed by seasons
as follows: Winter Season - October 1 through April 30 Summer
Season - May 1 through September 30 Winter Uniform - long sleeve
shirt and necktie. Blazers are optional except as prescribed in
sections 4, G and H of this supplement.
Summer Uniform - short or long sleeve shirt. Neckties and
blazers are optional except as prescribed in section 4, F and H of
this supplement.
F. Female uniformed employees are not required to wear
neckties. Uniform personnel may opt to wear a necktie during
summer season, unless assigned to a post requiring a necktie.
However, if uniformed personnel wear a blazer, a necktie must also
be worn. Uniformed personnel may choose whether to wear a short
or long sleeve shirt during the summer season. When a long sleeve
shirt is worn, a necktie must also be worn.
The following correctional and ASM posts which have daily
contact with the public, will be required to wear blazers at all
times:
Control Room
Visiting Room
Front Gatehouse
Mail Room during town trips
Uniformed Staff providing Guard Service at the Hospital
Uniformed staff transporting/escorting prisoners
Administrative Systems Supervisor
(4) Based on this determination, it is unneccessary to consider
Respondent's additional defenses.
29 FLRA NO. 120
NTEU, Chapter 207 and Federal Deposit Insurance Corporation,
Washington, D.C., Case Nos. 0-NG-466 and 0-NG-1293, (Decided November 5,
1987)
COMPENSATION
WAGE / SALARY RATES / FRINGE BENEFIT AMOUNTS
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
NO BASIS FOR GRANTING RECONSIDERATION
ATTEMPT TO RELITIGATE THE MATTER
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
This case was before the Authority because of the Agency's request
for reconsideration and stay of the Authority's Decision and Order on
Remand in 0-NG-446 (28 FLRA No. 80) and 0-NG-1293 (28 FLRA No. 92). The
Authority concluded that the Agency had failed to establish
extraordinary circumstances, the regulatory test for granting a request
for reconsideration. In so concluding, the Authority rejected Agency
contentions as either constituting an attempt to relitigate the merits
of the issues involved or disagreements with the decision. In a
separate decision, Chairman Calhoun stated that he would grant the
request for reconsideration for the purpose of receiving further
submissions from the parties on the issue of the extent to which a
Federal agency is obligated to bargain over proposals relating to wages
and monetary fringe benefits in the absence of a specific statutory
provision authorizing such bargaining.
Case No. 0-NG-446
28 FLRA No. 80
Case No. 0-NG-1293
28 FLRA No. 92
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 207
Union
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
Agency
This matter is before the Authority because of the Agency's request
for reconsideration and stay of the Authority's Decision and Order on
Remand in Case No. 0-NG-446 (August 21, 1987) (Chairman Calhoun
dissenting) and Decision and Order in Case No. 0-NG-1293 (August 27,
1987) (Chairman Calhoun dissenting). The Union filed an opposition.
The Agency's request pertains to the Authority's decision of August
21, 1987. (Chairman Calhoun dissenting). This Decision and Order was
issued after the Court of Appeals for the District of Columbia reversed
and remanded an earlier decision of the Authority. NTEU v. FLRA, No.
84-1286 (D.C. Cir. March 20, 1987) reversing and remanding NTEU Chapter
207 and FDIC, Washington, D.C., 21 FLRA 282 (1986)
In that earlier decision, the Authority concluded that a proposal
relating to a pay system and salary structure for bargaining unit
employees was outside FDIC's duty to bargain, because it conflicted with
an agency regulation for which a compelling need existed. In reaching
this conclusion, the Authority agreed with the FDIC's argument that a
uniform method of setting salaries was "essential" for it to efficiently
carry out its mission. The Authority found that the proposal,
therefore, conflicted with an agency regulation for which a compelling
need existed. See 5 C.F.R. Section 2424.11(a).
The Court of Appeals reversed and remanded the Authority's Decision
and Order. The Court stated that "The FLRA has not rationally explained
why it found that the agency met the 'compelling need' standard in this
case." The Court rejected the Aughority's acceptance of the Agency's
assertion that 'a uniform salary for bargaining unit and other employees
is 'essential to achieving the agency's objective of pay equity'". In
addition, the Court noted that "Moreover, even if uniform treatment of
(Cost of Living Adjustments) were, upon examination, shown to be
essential to the efficient functioning of the agency -- rather than to
some self-serving intermediate 'objective' -- it would still follow that
absent a compelling need for a particular COLA, the agency is obligated
to bargain over the union's proposal(.)" (emphasis added). In
concluding, the Court raised, without resolving, the "larger issue" of
whether "the federal government has any duty to bargain over wages and
fringe benefits." Id. at 3-4.
Subsequently, on Remand, the Authority accepted as the law of the
case the Court's opinion that the agency's regulation establishing a
uniform salary system does not bar negotiation of the Union's proposal
regarding salaries. We found that the Agency had not established that
its regulation is essential to the accomplishment of its mission in a
manner which is consistent with the requirements of an effective and
efficient government.
In these most recent proceedings on Remand, the Agency raised an
argument that its regulation met the compelling need criterion found at
section 2424.11(b) of the Authority's regulations. In prior proceedings
the Agency had not raised this argument. Therefore, we did not consider
this argument.
We also declined to reconsider the Authority's previous finding that
the proposal did not interfere with the Agency's right to determine its
budget.
In addition, we found the proposal was negotiable notwithstanding the
fact that it concerned wages. Questions regarding the negotiability of
wages have been resolved by our decision in American Federation of
Government Employees, AFL-CIO, Local 1897 and Department of the Air
Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986).
In its Decision and Order in this case the Authority (Chairman
Calhoun dissenting) found negotiable a proposal establishing a
contractual obligation, analogous to the existing statutory obligation,
for the Agency to provide the Union with an opportunity to negotiate
concerning mid-contract changes in conditions of employment.
Specifically, the obligation applied to those employee benefits,
including money-related benefits, which the Agency initiated at its
discretion as contrasted with those which are provided for by law.
The Agency asserts that reconsideration of the two Decisions and
Orders is warranted for the following reasons:
(1) The Authority erred in not reopening and reexamining the
issue of compelling need in Case No. 0-NG-446.
(2) The Authority erred in not reexamining the issue of the
negotiability of wages and fringe benefits. It should reconsider
its decision in this area because of substantial impact on other
Federal agencies.
(3) The cases should be reopened to allow for consideration of
the impact on the Agency of current circumstances in the banking
industry.
The Office of Personnel Management petitioned for permission to file
arguments as an amicus curiae in support of the Agency's request for
reconsideration. The request is granted and the arguments submitted
have been considered.
The Union opposes granting reconsideration. It asserts that the
Agency's arguments in support of its request merely express disagreement
with the Authority's decisions and are little more than an effort to
restate its previous arguments as to the negotiability of the proposals
involved. It contends that the Agency has failed to show with
particularity any extraordinary circumstances which warrant the
Authority's reconsideration of its decisions.
Section 2429.17 of the Authority's Rules and Regulations provides
that a party which can establish "extraordinary circumstances" may move
for reconsideration of an Authority decision. Here, the Agency has not
established "extraordinary circumstances" within the meaning of section
2429.17. Rather, the Agency's arguments constitute nothing more than
its disagreement with the Authority's decisions that certain matters are
within the duty to bargain under the Statute and an attempt to
relitigate the merits of the issues involved, as explained below.
First, the Agency's claim that the Authority must grant
reconsideration because it was error not to reopen and reexamine the
issue of compelling need in 0-NG-446 does not present extraordinary
circumstances. In our Decision on Remand, we accepted the Court's
reasoning that, even if the Agency demonstrated a need for uniformity in
its salary system for bargaining unit and other employees, such a need
would not of itself provide a basis for allowing the Agency's regulation
to bar negotiations over the Union's proposal "which could potentially
be applied uniformly to union and non-union employees." NTEU v. FLRA at
3. The Agency here merely states its disagreement with our conclusion
and seeks to relitigate the question of compelling need for the fourth
time by raising matters which either were or could have been raised in
earlier proceedings in the case.
Second, the Agency's claim that reconsideration is warranted because
the Authority erred in not reexamining the issue of the negotiability of
wages and fringe benefits does not present extraordinary circumstances.
The Court specifically noted that the issue was beyond the facts of
0-NG-446 even though it had a bearing on its disposition. Of course, if
the Authority were to change its decision that such matters are
negotiable in some limited circumstances, there would be no need to even
reach the question of compelling need.
We have not changed that decision, however. In our decision in
American Federation of Government Employees, AFL-CIO, Local 1899 and
Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No.
41 (1986) we reaffirmed that nothing in the Statute or its legislative
history bars negotiation of proposals concerning employee compensation
insofar as (1) the matters proposed are not specifically provided for by
law and are within the discretion of the agency and (2) the proposals
are not otherwise inconsistent with law, government-wide rule or
regulation or an agency regulation for which a compelling need exists.
The facts of the present cases in which the Agency is requesting
reconsideration fit precisely into the criteria articulated in Eglin Air
Force Base. As we noted in our most recent Decision on Remand, the
appeal of Eglin Air Force Base to the U.S. Court of Appeals for the
Eleventh Circuit was withdrawn. There are, however, appeals of other
decisions which rely on Eglin Air Force Base which are pending before
various courts.
Finally, The Agency's claim that reconsideration is warranted because
of economic considerations related to current circumstances in the
banking industry clearly do not present extraordinary circumstances. It
is by now well established that an agency is not released from its duty
to bargain under the Statute whenever it suffers economic hardship. For
example, in AFGE v. FLRA, 785 F.2d 333 at 338 (D.C. Cir. 1986), the
Court stated:
(E)conomic hardship is a fact of life in employment, 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.
Consequently, we conclude that the Agency has failed to establish the
existence of extraordinary circumstances. Accordingly, the Agency's
request for reconsideration is denied.
Issued, Washington, D.C., November 6, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
My colleagues conclude that the Agency has failed to demonstrate
"extraordinary circumstances" within the meaning of section 2429.17 of
the Authority's Regulations and, as a result, they deny the Agency's
request for reconsideration. I disagree with their conclusion and would
grant the request.
In my opinion in American Federation of Government Employees,
AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force
Base, Florida, 24 FLRA No. 41 (1986), I stated my belief that the issue
in that case -- the negotiability of a union proposal concerning the
portion of employee health insurance premiums to be absorbed by the
agency -- could and should have been resolved on the basis of compelling
need. As I stated in my separate opinion in FDIC, 28 FLRA 625, I do not
view the court's opinion in this case as foreclosing further inquiry
into the compelling need issue. I also stated my concern that the
Authority should not interpret the criteria for compelling need so
narrowly so as to deprive those criteria of meaning.
The issue presented by the Union's proposals in these cases -- the
extent to which a Federal agency is obligated to bargain over proposals
relating to wages and monetary fringe benefits in the absence of a
specific statutory provision authorizing such bargaining -- is a
significant one for the entire Federal labor relations community. In
view of this significance, as well as the unique procedural posture of
this case (in 21 FLRA 282 the Agency prevailed in its compelling need
argument and the Authority's decision in that case was reversed and
remanded), I believe that the Authority should facilitate the parties'
submission of as complete a record as possible on this issue. To that
end, I would grant the Agency's request for reconsideration and receive
further submissions from the parties on the issues in these cases.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(*) Chairman Calhoun's separate opinion immediately follows this
Order.
29 FLRA NO. 119
AFGE, Local 1815 and Army Aviation Center and Fort Rucker, Alabama,
Case No. 0-NG-1306, (Decided November 6, 1987)
7105(a)(2)(D) and (E)
7106(a)(2)(B)
7114(c)
ASSIGN WORK
EMPLOYEES TO BE ASSIGNED
HOURS OF WORK
TIME ALLOCATION OF WORK ASSIGNMENTS
AMOUNT OF TIME TO PERFORM SPECIFIED WORK
WHEN THE WORK OF A POSITION WILL BE PERFORMED
COMPENSATION
WAGE / SALARY RATES / FRINGE BENEFIT AMOUNTS
RATES OF PAY FOR/TO
TEACHERS
WAGES AND BENEFITS NOT SPECIFICALLY PROVIDED FOR BY LAW
EDUCATION PERSONNEL
HOURS OF WORK
TEACHERS
LEAVE
COURT LEAVE
JURY DUTY
SICK LEAVE AND SICK PAY
UNITED STATES CODE
20 U.S.C. 241(e)
This case concerned the negotiability of five provisions of a
collective bargaining agreement which were disapproved by the Agency
head during section 7114(c) review.
Provision 1 - This provision had at issue three separate sections.
section 1 - This section required management to set aside time each
workday for employees to engage in planning and conferences. While not
prescribing a specific amount of time to be devoted to such tasks, it
indicates that such work will be accomplished when a "special teacher"
is conducting the class.
section 2 - This section sought, among other things, to establish the
number of instructional days, the number of inservice days, and the
length of school vacations, seeking to make such matters consistent with
the requirements of Alabama law.
section 3 - This section required, as a matter of management
"policy", that a substitute be used in the absence of the regular
classroom teacher and designates the person who will carry out certain
responsibilities when the employee to whom they are regularly assigned
cannot perform them.
The Authority determined that the three sections were nonnegotiable
because they were inconsistent with management's right under section
7106(a)(2)(B) to assign work.
Provisions 2 and 4 - Provision 2 concerned procedures for the
requesting and taking of sick leave. Provision 4 concerned jury duty.
The Authority noted that Provision 2, section 1 would among other
things, designate the principal as the person who is authorized to
request medical verification of an employee's request for sick leave.
That portion of the proposal was found to be nonnegotiable in that it
violated management's right to assign work under section 7106(a)(2)(B),
although it was noted that if the section were revised to preserve
management's right to designate the individual who would require medical
verification, it would be negotiable. Provision 4 and the rest of
Provision 2 was found to be negotiable.
Provision 3 - This provision provided that rates of pay will be in
general accord with pay schedules for similar positions in comparable
school systems as determined by applicable Federal law and regulations.
The Authority noted that 20 U.S.C. sec. 241, which governs the pay of
the employees in the unit, does not restrict the Agency's discretion as
to the particular employment practice related to pay and fringe benefits
which could be adopted. The provision would incorporate in the
negotiated agreement a provision concerning pay which, as a minimum, is
not inconsistent with the governing law. Consequently, Provision 3 is
within the duty to bargain.
Provision 5 - The Authority described the provision as reflecting the
Union's intention to assure that the objectives of 20 U.S.C. sec.
241(e), requiring that per pupil costs not exceed those expended for
free public education in comparable communities is the state, is
attained. The Authority, noting that the Agency had not identified any
part of the provision which is inconsistent with the statutory
objective, found the provision within the scope of bargaining.
In a separate opinion, Chairman Calhoun concurred on Provisions 3 and
5, in part, and dissented on Provisions 2, 4 and 5, in part.
Case No. 0-NG-1306
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1815
Union
U.S. ARMY AVIATION CENTER AND FORT RUCKER, ALABAMA
Agency
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(D) and (E) of the Federal
Service Labor-Management Relations Statute (the Statute). The appeal
concerns five provisions of a collective bargaining agreement which were
disapproved by the Agency head during review of the negotiated agreement
under section 7114(c) of the Statute. /1/ We find Provision 1 to be
nonnegotiable. Provisions 2, 3, 4 and 5 are addressed in a separate
Decision and Order (Chairman Calhoun dissenting in part and concurring
in part).
Section 1. Each teacher's work day shall normally include
planning and conference time; and when appropriate, this shall be
when a teacher's class is covered by a special teacher.
for 12 months and shall include the number of days required by
Alabama law for student attendance plus any additional days for
inservice education, plus all legal holidays and regular school
vacation periods within the normal school year. Such paid
holidays shall be designated as annual leave. In addition to
Christmas and Thanksgiving vacation periods, five days of spring
vacation will normally be scheduled.
to provide a substitute teacher on days when a teacher is absent.
The Union will encourage and management will expect that a teacher
will, in the absence of clearly extenuating circumstances, provide
notice of absence sufficiently in advance to enable the Employer
to arrange for a qualified substitute teacher.
The Agency contends that by requiring that teachers be assigned
planning and conference time every day, section 1 of the provision
violates its rights under section 7106(a)(2)(A) and (B) of the Statute
to direct employees and to assign work. Concerning section 2, the
Agency asserts that bargaining over money-related fringe benefits is not
authorized by the Statute and that the proposed 12-month contractual
term violates its right under section 7106(a)(2)(A) to assign employees.
Section 3, in the Agency's view, also violates management's right to
assign employees and, further, does not address a condition of
employment within the bargaining unit under section 7103(a)(14) because
it concerns the assignment of work to substitute teachers who are
excluded from the unit.
The Union asserts that section 1 reflects the practice in the
bargaining unit and, further, promotes the requirement in section
7101(a)(2) of the Statute of an effective and efficient Government by
making efficient use of employees' time when another person is teaching
a class. The Union also describes the proposal as an "appropriate
arrangement" within the meaning of section 7106(b)(3). The Union
acknowledges that section 2 somewhat improves the fringe benefits for
bargaining unit employees. However, the Union observes that "the clause
stabilizes some the benefit structure built into existing conditions of
employment." The Union further asserts that section 2 has nothing to do
with the assignment of teachers but is concerned exclusively with the
duration of teacher's individual contracts. The Union asserts that
section 3 is intended to establish a procedure for employees to advise
management sufficiently in advance of impending absences. According to
the Union, there is no intent to assign tasks to persons outside the
bargaining unit. The Union also argues that, insofar as section 3
reflects the Agency's policy of furnishing substitutes in the absence of
the regular teachers, it is negotiable at the Agency's election and not
subject to challenge in a section 7114(c) review.
This section requires management to set aside time each workday for
employees to engage in planning and conferences. Although the section
does not prescribe a specific amount of time to be devoted to those
tasks, it indicates that such work will be accomplished when a "special
teacher" is conducting the class.
Section 1 is similar in effect to the group of proposals found to be
nonnegotiable in National Federation of Federal Employees, Local 1263
and Defense Language Institute, Foreign Language Center, Presidio of
Monterey, California, 7 FLRA 723 (1982). The proposals in that case
were found to interfere with management's right to assign work because
they allocated specified amounts of time to perform particular tasks.
Section 1 would require, for the term of the negotiated agreement, that
time be reserved each school day for work-related tasks other than
classroom teaching. This requirement, it should be noted, would apply
even if management believed that employee productivity would be enhanced
if employees engaged in work other than that specified in section 1.
See also Overseas Education Association and U.S. Department of Defense
Dependents Schools, 28 FLRA 700 (1987) (Proposal 2), petition for review
filed sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C.
Cir. Sept. 8, 1987).
Section 1 is also similar in effect to Proposal 1, found to be
nonnegotiable in Fort Knox Teachers Association and Fort Knox Dependents
Schools, 22 FLRA No. 88 (1986). The proposal in that case would have
authorized classroom teachers to leave their classes to perform other
functions during art instruction. Because the proposal sought to
relieve employees of assigned duties, it was held to be inconsistent
with management's right under section 7106(a)(2)(B) to assign work.
Section 2 seeks, among other things, to establish the number of
instructional days, the number of inservice days, and the length of
school vacations. The section attempts to make such matters consistent
with the requirements of Alabama law. We find this section to be
inconsistent with management's right under section 7106(a)(2)(B) of the
Statute to assign work.
The right to assign work under section 7106(a)(2)(B) includes the
discretion to determine when assignments will occur and when the
assigned work will be performed. See, for example, National Association
of Government Employees, SEIU, AFL-CIO and National Guard Bureau,
Adjutant General, 26 FLRA 515 (1987) (Proposals 2 and 8). We found the
proposals in that case to be nonnegotiable because they barred
management from assigning employees other duties during time periods
which the proposals would have reserved for personal cleanup. Section 2
would prevent the assignment of instructional duties to employees during
those days designated for inservice education. It would also prevent
the assignment of any duties during those times required by the proposal
to be school vacation periods. Overseas Education Association and
Department of Defense Dependents Schools, 29 FLRA No. 49 (1987)
(Proposals 1, 5, 8 and 9). The part of section 2 dealing with the
number of instructional days occurring during the school year is similar
in effect to Proposal 7 in Department of Defense Dependents Schools,
which sought to limit the number of instructional days to 175 unless
additional compensation were paid. We found that proposal to be
nonnegotiable because it prescribed the amount of time to be devoted to
a particular task. Here, the proposal seeks to limit the amount of time
to be devoted to classroom teaching to that required by Alabama law.
Because nothing in the statute governing the establishment of stateside
dependents schools compels adherence to state practices, the decision on
the length of the school year involves the exercise of the management
right to assign work. See 20 U.S.C. Section 241(a) and (e).
We find the objective of section 2 to be distinguishable from the
intent of Proposal 35, held to be negotiable, Chairman Calhoun
dissenting, in Overseas Education Association, Inc. and Department of
Defense Dependents Schools, 29 FLRA No. 61 (1987). Proposal 35, among
other things, required that the "normal workday" of unit employees "not
exceed six (6) hours." As the union pointed out in Department of Defense
Dependents Schools, the thrust of the proposal was not to limit the
agency's discretion in assigning work, but rather was concerned with
compensation for work performed beyond the prescribed 6-hour workday.
In contrast, the language of section 2 imposes a limit on the number of
instructional days and the record does not indicate that the proposed
limitation has any purpose other than that which would interfere with
the Agency's right to assign work.
We find that section 3 is inconsistent with management's right, under
section 7106(a)(2)(B) of the Statute, to assign work. The section
requires, as a matter of management "policy", that a substitute be used
in the absence of the regular classroom teacher. The section designates
the person who will carry out certain responsibilities when the employee
to whom they are regularly assigned cannot perform them. Viewed in this
light, the section has an impact similar to that of the proposal
identified as "Proposal Concerning Work Backlog" in National Federation
of Federal Employees, Local 108 and U.S. Department of Agriculture,
Arkansas State Office of the Farmers Home Administration, 14 FLRA 19,
21-2 (1984). The proposal in that case would have required supervisors
to undertake excess work when a backlog was created by the assignment to
unit employees of added duties. Citing National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 6 FLRA
508 (1981), the Authority held that proposal to be inconsistent with the
right to assign work because it required that specified duties be
assigned to a designated employee. Here, section 3 would require that
the responsibility for supervising and teaching the class, in the
absence of the regular assignment of a substitute would be required even
if management wished to compensate for the absence by, for example,
temporarily distributing the students among other classes in the school.
While we agree with the Union that the notification procedure in
section 3 does concern a working condition in the bargaining unit, that
fact does not overcome the violation of management's right to assign
work. Similarly, the fact that management, as a matter of practice,
assigns substitutes in the absence of regular teachers does not subject
the underlying right to continue or discontinue the assignment of work
in such a manner to the collective bargaining process.
In summary, we find the three sections of Provisions 1 to be
nonnegotiable because they are inconsistent with management's right
under section 7106(a)(2)(B) of the Statute to assign work.
Provision 1 is dismissed.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Section 1. Employees shall be granted sick leave with pay not
to exceed the number of days per school year for which selected
comparable districts are reimbursed by the state, plus the number
of days sick leave accrued, but not used, by the employee in
preceding periods of Federal employment, either under a similar
type contract or as a Civil Service employee, provided however,
that such amount shall not be in excess of the number of days for
which selected comparable districts are reimbursed by the state.
No accrued sick leave shall be carried over to any succeeding
period when there is a break in Federal employment in excess of
three continuous calendar years. The amount of sick leave accrued
can be taken at any time during the period covered by this
contract, but payment for sick leave taken in excess of that
earned will be recovered. When required by the Principal, after
advance notice, the employee shall furnish a doctor's certificate
for one or more absences. Unused sick leave will be used as a
basis for claiming additional compensation.
Section 2. Where services of an employee are required for a
12-month period, sick leave will be governed by the provisions
outlined in the Federal Personnel Manual, Chapter 630, Subchapter
4, paragraph 4-2.
Section 3. Where services of an employee are required for less
than a 12-month period, sick leave usage will be governed by
reference to comparable local education agencies. Such agencies
currently define sick leave as the absence from regular duty by a
teacher because of the following:
a. Personal illness;
b. Bodily injury which incapacitates the teacher;
c. Attendance upon an ill member of the immediate family
(husband, wife, father, mother, son, daughter, brother, sister) of
the teacher;
d. Death in the immediate family of the teacher (husband,
wife, father, mother, son, daughter, brother, sister,
father-in-law, mother-in-law, son-in-law, daughter-in-law,
brother-in-law, sister-in-law, nephew, niece, granddaughter,
grandson, grandfather, grandmother, uncle and aunt). Should
comparable local education agencies amend the circumstances under
which sick leave may be taken, the employer reserves the right to
conform to said revisions.
Section 4. Maternity. During the period of services required,
sick leave for incapacitation related to pregnancy and
confirnement must be supported by proper medical authority.
The use of sick leave for illness or incapacitation related to
pregnancy and confinement shall be patterned after that used by
teachers in comparable districts.
Section 5. Employees shall be in a leave without pay status
between the period for which services are not required and the
expiration date of their individual employment contracts. Such
non-pay period is creditable for Civil Service retirement purposes
to the extent provided in paragraph S-3-4A, FPM Supplement 831-1.
Section 6. Where services of an employee are required for less
than a 12-month period, he/she may be granted two days of
administrative leave with pay at the discretion of the Principal.
If granted, administrative leave may be used for any purpose
whatever. The employee agrees to give the Principal a minimum of
48 hours notice of his/her request to take administrative leave.
Unused administrative leave shall not be carried over to
succeeding periods of employment.
A teacher summoned for jury duty shall be paid at his/her
appropriate rate for the time required from his/her normal work
schedule to perform such duty. Such time shall be limited to the
time necessary to perform such duties; not to exceed the number
of hours of a normal work day. When a teacher is called for jury
duty, he/she shall promptly notify his/her supervisor so that
arrangements may be made for his/her absence from school. Upon
completion of jury duty, the teacher shall deliver to the School
Superintendent satisfactory evidence of the time serviced (sic) on
such duties and shall return any "fees" received to the Employer.
According to the Agency, the provisions concern money-related fringe
benefits. Therefore, the Agency contends that the provisions are
nonnegotiable because they do not concern "conditions of employment," as
that term is defined in section 7103(a)(14) of the Statute. The
provisions, the Agency asserts, also interfere with its right to
determine its budget under section 7106(a)(1). In the Agency's view,
the provisions also violate Federal statutes, Agency regulations having
the force and effect of law and an Agency regulation for which there is
a compelling need. More specifically the Agency contends that section 1
of Provision 2 would allow employees to take such leave any time they
wanted without requesting supervisory permission. That section,
therefore, interferes with the right under section 7106(a)(2)(B) to
assign work. The Agency notes also that section 1 also assigns
responsibility for requesting medical certification for an instance of
such leave usage. The section is consequently nonnegotiable because it
assigns a specific duty in violation of section 7106(a)(2)(B) of the
Statute.
The Union contests the Agency's position that the provisions are
nonnegotiable because of conflicts with law, Agency regulation or
because of a bar imposed by the Statute. The exclusive representative
also points out that the provisions were drafted "with comparability in
mind." The Union also characterizes various parts of the provisions as
"appropriate arrangements" within the meaning of section 7106(b)(3) of
the Statute for employees adversely affected by the exercise of a
management right.
Provision 2, except for section 1, and Provision 4 in this case are
similar to those which were before us in Fort Knox Teachers Association
and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203
(1987) and Fort Stewart (Georgia) Association of Educators and Fort
Stewart Schools, 28 FLRA 547 (1987). In both of those cases the
disputed proposals or provisions concerned various types of leave to
which unit employees would be entitled. The same arguments which are
advanced in this case were advanced in those cases. In both cases we
found that bargaining on the proposals or provisions concerning various
types of leave was not barred by any of the reasons urged by the Agency.
In summary, we found that the proposals and provisions concerned
conditions of employment not otherwise provided for by Federal law;
that they did not conflict with other Federal statutes or
Government-wide regulations governing procurement, did not interfere
with the budget determination process, nor did the agency establish that
any of its regulations supported by a compelling need prohibited
negotiation on the leave proposals or provisions.
This section, among other things, designates the principal as the
person who is authorized to request medical verification of an
employee's request for sick leave. In this respect, section 1 is to the
same effect as section F of Proposal 3 in Fort Stewart Schools. The
cited section in that case designated the "immediate supervisor" as the
management official to approve requests for leave without pay.
Consequently, we found that section F violated management's right to
assign work under section 7106(a)(2)(B) of the Statute.
However, we note that if section 1 were revised to preserve
management's right to designate the individual who would require medical
verification, it would be negotiable. See American Federation of
Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command,
The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group,
The U.S. Army Information Systems Command, Redstone Arsenal Commissary,
27 FLRA 69, 81 (1987) petition for review filed sub nom. U.S. Army
Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment
Support Group, U.S. Army Information Systems Command-Redstone Arsenal
Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987).
Further, contrary to the Union's position in this case, a provision
violating a management right under section 7106(a) of the Statute is not
a matter which is negotiable at the agency's option merely because the
provision involves persons outside the bargaining unit.
Thus, in conclusion, we find Provision 4 to be within the duty to
bargain. We also find all of Provision 2, with the exception of section
1 to be negotiable. Were section 1 of Provision 2 to be redrafted to
avoid the inconsistency with the section 7106(a)(2)(B) right to assign
work, it, too, would be within the duty to bargain.
Section 1. Rates of pay will be in general accord with pay
schedules for similar positions in comparable school systems as
determined by applicable Federal law and regulations.
The Agency contends that this provision is nonnegotiable because it
contravenes Federal statutes, Agency regulations having the force and
effect of law, an Agency regulation supported by a compelling need,
interferes with the Agency's right to determine its budget and does not
address a condition of employment.
The Union contends that the Agency's position is in error and asserts
that the provision is a "hortatory" statement and only requires
compliance with Federal law and regulations. Union Reply Brief at 12.
The law governing the employees in this bargaining unit is 20 U.S.C.
Section 241. Section (e) of that statute provides that expenditures "to
the maximum extent practicable" shall be limited to amount per pupil
which will not exceed the per pupil cost of free public education
provided for children in comparable communities in the state. The
Union, in effect, construes the quoted statutory mandate as requiring
comparability in pay with certain school systems within the state. In
our view, such construction is not inconsistent with the constraints of
the governing law. In this connection, it is pertinent to note that we
previously have held that 20 U.S.C. Section 241 does not restrict the
Agency's discretion as to the particular employment practice relating to
pay and fringe benefits which could be adopted. Fort Knox Teachers
Association and Fort Knox Dependents Schools, 28 FLRA 179 (1987). Here,
the Union has elected to incorporate in the negotiated agreement a
provision concerning pay which, as a minimum, is not inconsistent with
the governing law. Consequently, we find Provision 3 to be within the
duty to bargain. See, National Treasury Employees Union and Internal
Revenue Service, 3 FLRA 693 (1980) (Proposals II and III).
Section 1. The Employer acknowledges that those comparison
factors listed in section 3 of this Article are examples of those
used to insure that employees covered by this Agreement are
treated comparably to employees in similar positions in selected
comparable communities within the state.
Section 2. The designation of local education agencies to be
surveyed for the purpose of achieving comparability shall be in
accordance with appropriate governing laws and regulations. The
Union will, upon request, be allowed to review, discuss, and
provide input prior to the designation of local agencies.
Section 3. Once comparable districts have been selected,
comparability shall be determined by the following factors subject
to change in law, rule or regulation:
a. Qualifications of professional and nonprofessional
personnel.
b. Pupil-teacher ratios.
c. Curriculum for grades offered, including kindergarten, and
summer school, if applicable.
d. Accreditation by state or other accrediting association.
e. Transportation services (student and support).
f. Length of regular and/or summer term(s).
g. Types and number of professional and nonprofessional
positions.
h. Salary schedules.
i. Conditions of employment.
j. Instructional equipment and supplies.
Section 4. Prior to the filing of the Letter of Proposal with
the Department of Defense, the Union will, upon request, be
allowed to review and discuss the economic package, as it pertains
to employees covered by this Agreement, in terms of its
conformance with the comparability data from the selected
communities.
The Agency's position is the same as that taken with respect to
Provision 3.
The Union asserts that Provision 5 does not involve negotiation over
pay and fringe benefits. According to the Union, the provision only
prescribes factors to apply in finding matching jobs in school
jurisdictions within the state. The Union also states that these
factors are applicable unless specifically proscribed by law or
regulation. In this regard, the Union describes the factors in the
provision are "illustrative" of the criteria in establishing pay that is
comparable to that received by teachers in school jurisdictions within
the state. Referring specifically to section 4 of the provision, the
Union points out that it only calls for consultation -- not negotiation
-- on a matter directly related to the conditions of employment of unit
employees.
In agreement with the Union we find that Provision 5 is not concerned
with negotiation over employee salaries. Rather, the provision reflects
the Union's intention to assure that the objective of 20 U.S.C. Section
241(e), requiring that per pupil costs not exceed those expended for
free public education in comparable communities in the state, is
attained. In this regard, we note that the Agency has not identified
any part of the provision which is inconsistent with the statutory
objective.
We find the circumstances in this case are similar to those occurring
with respect to Proposals II and III in National Treasury Employees
Union and Internal Revenue Service, 3 FLRA 693 (1980). In that case,
the two proposals sought to incorporate into the negotiated agreement
statutory provisions governing prohibited personnel practices and merit
system principles. In finding the proposals to be negotiable, the
Authority held that the union could properly incorporate provisions of
law in the agreement for the purpose of enforcing them by means of the
negotiated grievance procedure. Here, Provision 5 seeks to insure that
employee pay is comparable to that received by colleagues in surrounding
school jurisdictions, an objective which is not inconsistent with the
governing law. Hence, based on the reasoning in Internal Revenue
Service, the provision is within the duty to bargain. See also Fort
Stewart Schools, 28 FLRA 547 (1987) (Proposal 1).
Provision 2, section 1 is dismissed. The Agency shall rescind its
disapproval of: Provision 2, sections 2 and 3; and Provisions 3, 4 and
5. /2/
Issued, Washington, D.C., November 6, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Provisions 2 and 4 concern various types of leave authorized for
bargaining unit employees. They are like Proposal 3 in Fort Stewart
Association of Educators and Fort Stewart Schools, 28 FLRA 547 (1987),
petition for review filed sub nom. Fort Stewart Schools v. FLRA, No.
87-3734 (11th Cir. Sept. 22, 1987). In my opinion in that case I stated
that in the absence of a clear expression of Congressional intent to
make wages and money-related fringe benefits negotiable, I would find
that proposals concerning them are not within the duty to bargain. I
found no such statement in that case and I find none here. Accordingly,
I would find Provisions 2 and 4 to be nonnegotiable. See also Fort Knox
Teachers Association and Board of Education of the Fort Knox Dependents
Schools, 27 FLRA 203 (1987) (Provision 4), petition for review filed sub
nom. Board of Education of the Fort Knox Dependents Schools v. FLRA, No.
87-3702 (6th Cir. July 24, 1987); and Fort Knox Teachers Association
and Fort Knox Dependent Schools, 26 FLRA 934 (1987), petition for review
filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th
Cir. June 25, 1987).
Provision 3 requires that teachers' rates of pay be in "general
accord with pay schedules for similar positions in comparable schools
systems as determined by applicable Federal law and regulations."
Federal law provides that expenditures for the schools operated by the
Agency shall "to the maximum extent practicable" be limited to an amount
per pupil which will not exceed the per pupil cost of free public
education provided for children in comparable communities in the State
where the schools are located. 20 U.S.C. Section 241(e). Applicable
Agency regulations provide that the education provided will be
considered comparable when enumerated "factors are, to the maximum
extent practicable, equal." Army Regulation (AR) 352-3, subpart 1-7.
One of the factors enumerated is "salary schedules." Accordingly, under
its regulations, the Agency must, to the maximum extent practicable,
maintain salary schedules which are equal to those in comparable
communities in the State.
The Union states that it does not intend Provision 3 to "bind the
employer to strictly abide by comparability." Union Response at 12. In
addition, the Union notes that the proposal itself refers to applicable
law and regulation. In my view, the Union's statements are consistent
with the plain wording of the provision. Consistent with those
statements, I interpret Proposal 3 as simply requiring the Agency to
comply with applicable law in exercising its authority with respect to
teacher salaries. As such, I concur in my colleagues determination that
the proposal is negotiable. I note, however, that in my view the
setting of wages itself is not negotiable. See my opinion in American
Federation of Government Employees, AFL-CIO, Local 1897 and Department
of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986).
See also my opinion in Fort Knox Teachers Association and Fort Knox
Dependents Schools, 28 FLRA 179 (1987), petition for review filed sub
nom. Fort Knox Dependents Schools v. FLRA, No. 87-3878 (6th Cir. Sept.
18, 1987). Further, since the proposal binds the Agency only to
"applicable Federal law and regulations," it recognizes that Agency
regulations concerning salary schedules may change during the life of
the collective bargaining agreement.
Provision 5 concerns the factors to be used by the Agency in
determining comparability with appropriate schools systems in the State
where the schools are located. Section 1 provides that the
comparability factors are "examples" to be used to "insure" that unit
employees are treated comparably to State teachers; section 2 requires
the Agency's survey to be in accord with applicable law and regulation
and enables the Union to "review, discuss, and provide input" prior to
the designation of the local school systems; section 3 lists the
factors; and section 4 provides that prior to final Agency action, the
Union may "review and discuss the economic package . . . in terms of its
conformance with the comparability data from the selected communities."
The Union states that Provision 5 "does not require the direct
negotiation of pay or benefits." Union Response at 13. This statement
is consistent with the plain wording of the provision which requires
only that the Union be allowed to (1) review, discuss, and provide input
prior to the designation of local school systems, and (2) review and
discuss the economic package prior to its submission to the Department
of Defense. Accordingly, consistent with the Authority's decision
concerning Proposal 4 in Illinois Nurses Association and Veterans
Administration Medical Center, North Chicago, Illinois, 27 FLRA 714
(1987), petition for review filed sub nom. Veterans Administration
Medical Center v. FLRA, No. 87-1405 (D.C. Cir. August 17, 1987), I
concur in my colleagues' determination that sections 2 and 4 of
Provision 5 are negotiable. Compare my opinion concerning subsections A
and D of Proposal 1 in Fort Stewart Association of Educators, cited in
full above in connection with Provisions 2 and 4.
Section 1 and 3 of Provision 5 concern the factors to be used in the
comparability survey. Section 1 provides that the factors are examples
of those used to "insure" that unit employees are treated comparably to
State teachers. Section 3 lists the factors; they are identical to
those contained in AR 352-3, subpart 1-7. Unlike Provision 3, these
sections do not refer to "applicable" requirements of law and
regulation. Rather, these sections constitute independent contractual
requirements concerning the factors to be used in the comparability
study and would apply whether or not the factors used by the Agency in
its regulations were changed during the life of the collective
bargaining agreement. Further, section 1 requires the Agency to
"insure" that unit employees are treated comparably to State employees
in similar positions. Applicable law and regulation require only that
comparability be maintained to the "maximum extent practicable." As
such, section 1 imposes a stricter standard than that imposed under law.
Therefore, I would find that sections 1 and 3 are nonnegotiable. See
my opinion concerning subsection C(6) of Proposal 3 in Fort Stewart
Association of Educators, cited in full above in connection with
Provisions 2 and 4.
In sum, I would find that Provisions 2 and 4 are nonnegotiable. I
concur in my colleagues' determination that Provision 3, and sections 2
and 4 of Provision 5 are negotiable. I would find that sections 1 and 3
of Provision 5 are nonnegotiable.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) In its Reply Brief the Union withdrew a sixth disputed provision,
designated by the parties as Article 17, concerning equal employment
opportunity. Therefore, that provision will not be considered here.
(2) In finding these provisions and sections of provisions to be
negotiable, we make no judgment as to their merits.
29 FLRA NO. 118
Coordinating Committee of Unions and Dep't of the Treasury, Bureau of
Engraving and Printing, Case No. 0-NG-1435, (Decided November 6, 1987)
7105(a)(2)(D) and (E)
7106(a)(2)(A) and (B)
7106(b)(2) and (3)
ASSIGN WORK
PERFORMANCE APPRAISAL SYSTEM
CODE OF FEDERAL REGULATIONS
5 C.F.R. 351.201(a)(2)
5 C.F.R. 6101.121
41 C.F.R. 101-20.104-2(d)
COMPETITITIVE LEVELS
REDUCTION-IN-FORCE
DETAILS
PERFORMANCE APPRAISALS
DIRECT EMPLOYEES, RESERVED MANAGEMENT RIGHT
PERFORMANCE APPRAISAL SYSTEM
HOURS OF WORK
ADMINISTRATIVE WORKWEEK
SCHEDULE OF REGULAR TOUR OF DUTY
"TOUR OF DUTY"
REDUCTION-IN-FORCE
FURLOUGH / TEMPORARY REDUCTION-IN-FORCE
EXEMPTIONS
PERFORMANCE APPRAISAL SYSTEM
AUDITING OR MEASURING WORK PERFORMANCE
DETAILS
UNITED STATES CODE
5 U.S.C. 6101(a)(3)
VEHICLES
PARKING FACILITIES AND FEES
This case concerned the negotiability of four separate proposals.
Proposal 1 - At issue were those portions of a proposal which
established as the basic work week 8 hour days Monday through Friday,
except when this would seriously handicap agency functions and which
provided that the hours of duty currently applied would continue for the
life of the agreement. The Authority reviewed the provisions of 5
U.S.C. sec. 6101(a)(3) and 5 C.F.R. sec. 6101.121 and noted their
requirement that in scheduling work, the head of an agency taken into
consideration whether a particular schedule would result in
substantially increased costs as well as whether it would seriously
handicap the agency in carrying out its functions. The Authority
concluded that the proposal would preclude consideration of cost.
Accordingly, it is inconsistent with the referenced U.S.C. and C.F.R.
provisions.
Proposal 2 - The proposal provided for the retention of the existing
parking policy, with the exception that five spaces be provided for the
(Union) committee. The Authority rejected the Agency's reliance on
Government-wide regulations on the allocation and assignment of employee
parking (41 C.F.R. sec. 101.20.104-2(d), concluding that the Agency had
not shown that the proposal actually conflicts with regulatory
provisions. More specifically, it had not shown that it does not have
or cannot request from GSA adequate parking spaces to provide the spaces
required by the proposal and still adhere to the priorities prescribed
in the regulations. The Authority also rejected the Agency's contention
that the proposal conflicts with Agency regulations, finding that the
Agency had provided no facts or arguments to support its compelling need
contention. Accordingly, the proposal was found to be within the scope
of bargaining.
Proposal 3 - This proposal provided that it was agreed and understood
that the following employees would not be furloughed: employees under
notice of reduction in force or notice of suspension or other adverse
action; and employees serving a temporary promotion, such employees
being not being furloughed with employees in the specific rating from
which they were temporarily promoted, but with employees in the specific
rating which they were temporarily promoted. The Authority reviewed
OPM's reduction in force regulations (5 C.F.R. sec. 351.201.(a)(2)),
specifically the prescribed system in which employees are ranked for the
purpose of determining the order of release from competitive levels.
Noting that the proposal would exempt employees while they are under
notice of adverse action, which is not one of the permissive or
mandatory exemptions permitted under the regulations, the Authority
concluded that this part of the proposal violates OPM's regulations.
As to a claim by the Union that the proposal is only intended to
conform to OPM's regulations, the Authority stated that this was not
what the proposal said and they would not base a negotiability
determination on a statement of intent that is inconsistent with the
express language of the proposal.
Proposal 4 - At issue was that portion of an "assignment and detail"
proposal that provided that no performance appraisal would be based on
performance of duties above the level to which the employee is
permanently assigned unless the employee was paid at the higher level.
The Authority concluded that the proposal directly interferes with the
Agency's rights to direct employees and to assign work and is not a
procedure negotiable under section 7106(b)(2). As to the contention
that the proposal is a negotiable appropriate arrangement, the Authority
stated that it had not been shown, nor was it readily apparent how the
proposal would operate as such. Accordingly, the Authority had no basis
for concluding that it was. The parties are responsible for creating
the record upon which negotiability disputes will be resolved.
Case No. 0-NG-1435
COORDINATING COMMITTEE OF UNIONS
Union
DEPARTMENT OF THE TREASURY BUREAU OF ENGRAVING AND PRINTING
Agency
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). This case presents
issues concerning the negotiability of four proposals. /1/ Based on the
following reasons, we find that Proposals 1, 3 and 4 are not within the
duty to bargain and that Proposal 2 is within the duty to bargain.
Section 1. The basic workweek for full time employees will
consist of 40 hours of work, scheduled 8 hours a day, Monday
through Friday except where conditions exist that would seriously
handicap the Bureau from carrying out its normal function.
Section 2. Hours of duty that are currently applied and
approved by the Bureau will continue for the life of this
agreement.
(Only the underlined portions are at issue.)
The Agency, in its allegation of nonnegotiability, asserts that the
proposal conflicts with law and Government-wide regulations --
specifically, 5 U.S.C. Section 6101 and 5 C.F.R. Sections 610.111 and
610.121. It also asserts that the proposal conflicts with its rights
under section 7106(a)(2)(B) to assign work and determine the personnel
by which agency operations shall be conducted.
The Union describes this proposal as intended to retain current
schedules and tours of duty. It asserts that the Office of Personnel
Management (OPM) regulations do not support a contention that
negotiation is barred based on conflict with an agency regulation for
which a compelling need exists. /2/ Even if the OPM regulations could
bar negotiations, this particular proposal does not conflict with the
OPM regulations, but, rather, incorporates the standards set forth in
them and 5 U.S.C. Section 6101 as to the establishment of a basic
workweek and changes in tour of duty. It contends that the proposal
does not conflict with management rights because it would not prevent
the Agency from requiring that work be performed at times other than
those specified by the proposal. It argues that the proposal determines
only what the normal, non-overtime work hours of employees will be.
Under 5 U.S.C. Section 6101, agency heads are required to provide
that the basic workweek is scheduled on 5 days, Monday through Friday
when possible, and that the 2 days outside the basic workweek are
consecutive. An exception to this requirement applies where the agency
head determines that the organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased. The provisions of 5 U.S.C. Section 6101 are implemented by
regulations issued by OPM. Those regulations mirror the above-described
statutory requirement. Additionally, those regulations require that the
head of an agency schedule the work of employees to accomplish the
agency's mission and that the employees' regularly scheduled
administrative workweek be scheduled so that it corresponds with the
employees' work requirements. 5 C.F.R. Section 610.121(b)(1). The
regulations require that when the agency head knows in advance of an
administrative workweek that the specific days and/or hours of a day
actually required will differ from those in the currrent workweek,
he/she shall reschedule the regularly scheduled workweek to correspond
with the actual requirements. 5 C.F.R. Section 610.121(b)(2).
Chapter 61 of Title 5, U.S. Code, governs "Hours of Work" for
virtually all employees in Executive agencies and military departments.
5 U.S.C. Section 6101(c) assigns to OPM responsibility for promulgating
regulations, subject to the approval of the President, necessary for
administration of the 40-hour workweek and work schedules as they affect
employees "in or under an Executive agency." Pursuant to this
legislative mandate, OPM issued regulations which are codified at Part
610, title 5, Code of Federal Regulations and which govern hours of duty
including weekly and daily scheduling of work. These regulations
pertain to employees in or under an Executive agency with certain
exceptions not relevant here. /3/ See 5 C.F.R. Section 610.101. In
light of these circumstances, we conclude that the cited regulations are
"Government-wide," within the meaning of section 7117(a)(1), in that
they are applicable generally to the employees in the competitive and
excepted service and are binding on heads of Executive agencies. See
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 348, 751-55, (1980).
This proposal would require the Agency to establish and maintain a
basic workweek for employees consisting of 8 hours per day, Monday
through Friday, unless conditions existed in which this requirement
would seriously handicap the Agency in carrying out its normal
functions. As noted earlier, in prescribing and adjusting work
schedules, heads of agencies are required under law and regulation to
take into consideration whether a particular work schedule would result
in substantially increased costs as well as whether it would seriously
handicap the Agency in carrying out its functions. This proposal would
preclude consideration of the cost factor. Accordingly, we find that
the proposal is inconsistent with 5 U.S.C. Section 6101(a)(3) and 5
C.F.R. Section 6101.121. Inasmuch as it is inconsistent with law and
Government-wide regulation, it is, under section 7117 of the Statute,
outside the duty to bargain. Compare National Association of Government
Employees, Local R7-23 and Department of the Air Force, Scott Air Force
Base, Illinois, 23 FLRA 753 (1986) (Proposal 1) in which the Authority
found nonnegotiable a proposal which would require, except in
emergencies, at least 14 days advance notice to employees in the event
of a change in duty hours, days or weeks.
In view of this conclusion, we do not reach the Agency's other
argument as to the nonnegotiability of the proposal.
Parking
Section 1. The existing parking policy of the Bureau is
incorporated into this agreement with the following exception:
(a) Five parking spaces having ready access shall be provided
for committee use to assure that the work of the Committee can be
maintained in an efficient manner. The Chairman of the Committee
shall designate the representative entitled to use these spaces.
The Agency contends that this proposal is nonnegotiable under section
7117(a) of the Statute because it conflicts with "Bureau, Treasury and
Government-wide regulations." The Government-wide regulation to which it
refers is that of the General Services Administration (GSA).
The Union argues that Government-wide regulations do not provide a
basis under section 7117 to bar negotiation of a proposal. Moreover, it
asserts that the GSA regulation, on which the Agency relies, does not
apply because the property occupied by the Agency is "owned" by the
Department of the Treasury. As to the Agency's assertion that the
proposal is nonnegotiable because it conflicts with "Bureau" and
"Treasury" regulations, the Union asserts that the Agency has failed to
demonstrate that there is a conflict or that a compelling need exists
for those regulations.
The Government-wide regulations on which the Agency relies are
codified at 41 C.F.R. Sections 101-20.104 -- 101-20.104-4. They are
part of Subchapter D of Chapter 41 of the Federal Property Management
Regulations (FPMR) issued by GSA. They have replaced FPMR Temporary
Regulation D-69 (Temp. Reg. D-69) which previously appeared as an
Appendix to Subchapter D of 41 C.F.R. Chapter 101. 52 Fed. Reg. 11263
(1987). The Authority found that Temp. Reg. D-69 was a Government-wide
regulation within the meaning of section 7117 of the Statute. American
Federation of Government Employees, Local 644, AFL-CIO and U.S.
Department of Labor, Occupational Safety and Health Administration, 21
FLRA 658 (1986). No reason is apparent why we should reach a different
conclusion now. Further, the Union does not dispute that the
regulations in their current form are Government-wide regulations.
Those regulations apply to Government-owned and leased buildings and
grounds under the assignment responsibility of GSA. 41 C.F.R. Section
101-20.000. The Union asserts, among other things, that the GSA parking
regulations do not apply to the Agency because it is "owned" by the
Department of the Treasury. We note that the applicability of the
regulations is based on whether the Government-owned and leased
buildings and grounds are under the assignment responsibility of GSA.
We have no basis in the record of this case for making a judgment as to
whether the Agency is excepted from GSA's assignment responsibility as
the Union suggests. However, resolution of this question is not
necessary for a ruling on the negotiability of this proposal.
As to allocation and assignment of employee parking spaces, the
regulations (41 C.F.R. Section 101.20.104-2(d)) prescribe the following
priority:
(1) Severely handicapped employees. Justifications based on
medical opinion may be required.
(2) Executive personnel and persons who work unusual hours.
(3) Vanpool/carpool vehicles.
(4) Privately owned vehicles of occupant agency employees which
are regularly used for Government business at least 12 days per
month and which qualify for reimbursement of mileage and travel
expenses under Government travel regulations.
(5) Other privately owned vehicles of employees, on a
space-available basis.
The Agency has not shown that the proposal actually conflicts with
this regulatory provision. More specifically, it has not shown that it
does not have or cannot request from GSA adequate parking spaces to
provide the spaces required by the proposal and still adhere to the
prescribed priority. See American Federation of Government Employees,
Local 644, AFL-CIO and U.S. Department of Labor, Occupational Safety and
Health Administration, 21 FLRA 658 (1986). Thus, the Agency has not
supported its claim that the proposal conflicts with a Government-wide
regulation.
As to the Agency's contention that the proposal conflicts with
"Bureau" and "Treasury" regulations, it has not supported a claim that
the proposal conflicts with any agency regulation for which a compelling
need exists.
The compelling need provisions of the Statute are meant to insure
that otherwise negotiable bargaining proposals are removed from the duty
to bargain only if the agency involved demonstrates and justifies an
overriding need for the policies reflected in the rules or regulations
to be uniformly applied throughout the agency. Therefore, an agency
must (1) identify a specific agency-wide regulation; (2) show that
there is a conflict between its regulation and the proposal; and (3)
demonstrate that its regulation is supported by a compelling need with
the reference to the Authority's standards set forth in section 2424.11
of its Regulations. See, for example, American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA 870 (1986). Here, the Agency has
provided no facts or argument bearing on these questions. Therefore, it
has not demonstrated that negotiation over the proposal is barred by an
Agency regulation for which a compelling need exists. American
Federation of Government Employees, AFL-CIO, Local 1928 and Department
of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2
FLRA 451, 454 (1980).
Based on the above, we find that the Agency has not sustained its
claims that this proposal is nonnegotiable under section 7117(a) of the
Statute. Hence, Proposal 2 is within the duty to bargain.
Section 6. It is agreed and understood that the following
employees will not be furloughed:
a. Employees under notice of reduction in force or under
notice of suspension or other adverse action.
b. Employees serving under a temporary promotion. Such
employees will have their names removed from this list and will
not be furloughed with employees in the specific rating from which
they were temporarily promoted. They will be furloughed with
employees in the specific rating which they were temporarily
promoted.
The Agency contends that this proposal is inconsistent with its
rights under section 7106(a)(2)(A) of the Statute to retain and layoff
employees.
The Union contends that this proposal is intended as an appropriate
arrangement for employees adversely affected by the Agency's exercise of
its rights. It describes section 6.a. as delaying, as opposed to
barring, action. It asserts that section 6.a. would allow the agency to
furlough employees, "in conformance with applicable regulations," once
the suspension or other adverse action was completed assuming, of
course, that those employees remained on the rolls. As to section 6.b.,
the Union describes it as merely establishing a procedure to be followed
by management in exercising its rights to furlough employees. The Union
asserts that section 6.b. reflects Federal Personnel Manual (FPM)
requirements that employees serving on a temporary promotion compete
with other employees in their permanent position for purposes of
determining who will be furloughed.
By its terms, the proposal applies to furloughs in general, including
those which are subject to OPM reduction-in-force (RIF) regulations. 5
C.F.R. Section 351.201(a)(2). The OPM RIF regulations are
Government-wide regulations within the meaning of section 7117. See,
for example, National Treasury Employees Union, NTEU Chapter 202 and
Department of the Treasury, Bureau of Government Financial Operations,
22 FLRA 553 (1986).
Those regulations prescribe a system in which employees are ranked
for purposes of determining the order in which they will be released
from their appropriate competitive levels and subject to, among other
actions, being furloughed. The regulations require that employees must
be released from their competitive levels in inverse order of their
standing on the retention register for that level. An agency may not
release a competing employee from a competitive level while retaining an
employee with lower retention standing unless one of the mandatory or
permissive continuing or temporary exceptions set forth in those
regulations applies. 5 C.F.R. Sections 351.601-351.608. Also, those
regulations require that employees who are temporarily promoted compete
for retention in the competitive level of the position from which they
were promoted. 5 C.F.R. Section 351.404(a).
Section 6.a. of the proposal would exempt employees from being
released for furlough while they are, among other things, under notice
of adverse action. This exemption is not one of the permissive or
mandatory exceptions permitted under the regulations. This part of the
proposal conflicts with the OPM regulations in that it would require
retention of an employee under notice of adverse action without regard
to that person's standing on the retention register compared to that of
other employees being released.
The Union asserts that section 6.b. is intended to conform with the
requirement in the OPM regulations that employees on a temporary
promotion compete for retention with employees in the competitive level
applying to the position from which they were temporarily promoted.
However, this is not what the proposal, as submitted to us, states. In
fact, it states the opposite and requires that employees will not be
furloughed with employees in the rating from which they were temporarily
promoted. We do not base negotiability determinations on a union's
statement of intent that is inconsistent with the express language of
the proposal. See, for example, American Federation of Government
Employees, Local 2761 and U.S. Army Adjutant General Publications
Center, St. Louis, Missouri, 17 FLRA 899 (1985) (Proposal 2). As
written, section 6.b. is inconsistent with a Government-wide regulation.
Proposal 3 is not within the duty to bargain.
In view of this finding we do not address the Agency's contention
that the proposal conflicts with its right under section 7106(a)(2)(A)
to retain and layoff employees. As to the Union's claim that the
proposal constitutes a "procedure" or an "appropriate arrangement," we
note that sections 7106(b)(2) and (3) expressly apply only when
management is exercising one of the management rights set out elsewhere
in section 7106. We have found that Proposal 3 is outside the duty to
bargain because it is inconsistent with an applicable Government-wide
regulation. Consequently, section 7106(b)(2) and (3) are not
applicable.
Assignment and Detail
Section 5. No employee shall be assigned to a higher level
position for more than eight consecutive working hours unless
written record of such assignment is maintained as temporary
promotion or detail and such written record is available to the
employee upon request prior to and subsequent to submission of
such information to the payroll office. No performance appraisal
shall be based on performance of duties above the level to which
the employee is permanently assigned unless the employee was paid
at the higher level. (Only the underlined portion is at issue.)
The Agency contends that the underscored portion of the proposal is
nonnegotiable because it conflicts with its management rights to direct
employees and assign work under section 7106(a)(2)(A) and (B).
The Union argues that the disputed portion of the proposal must be
read in context with the undisputed portion of the proposal. It
describes the proposal in its entirety as providing that where an
employee is assigned to higher graded duties for more than 8 hours: (1)
the assignment must be officially recorded as a temporary promotion or
detail and the record made available to the employee upon request; and
(2) evaluation of the employee's performance of those duties may only be
made where the employee has been temporarily promoted. It describes the
proposal as intended to insure that employees are not rated on work to
which they were not officially assigned and for which they were not
compensated. It asserts that the disputed portion of the proposal
addresses the conditions which must be met before an employee can be
evaluated on the performance of duties and that it is negotiable as a
procedure under section 7106(b)(2) or an appropriate arrangement under
section 7106(b)(3).
As written and explained by the Union, the disputed portion of the
proposal would restrict the Agency from evaluating an employee's
performance of higher level duties under circumstances where an employee
has been detailed, as contrasted with temporarily promoted, to the
higher level position for more than 8 hours. The Agency's rights under
section 7106(a)(2)(A) and (B) encompass the right to determine the
aspects of employees' work to be evaluated in preparation of employee
performance appraisals. American Federation of Government Employees,
Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714 (1987)
(Proposal 3). This proposal would place a substantive contractual
limitation on the Agency's discretion to determine whether it will
evaluate an employees' performance of duties while detailed to a higher
level position. It is not merely procedural in nature. Rather, we
conclude that the proposal directly interferes with the Agency's rights
to direct employees and to assign work and is not a procedure negotiable
under section 7106(b)(2).
The Union asserts, without elaboration, that the proposal does not
excessively interfere with the Agency's rights and that it is negotiable
as an appropriate arrangement under section 7106(b)(3). In National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24 (1986), the Authority discussed in detail the
responsibilities of the parties to raise and address specific matters
concerning section 7106(b)(3) in negotiability appeals. Among other
things the Authority stated:
In making that determination, the Authority will first examine
the record in each case to ascertain as a threshold question
whether a proposal is in fact intended to be an arrangement for
employees adversely affected by management's exercise of its
rights. In order to address this threshold question, the union
should identify the management right or rights claimed to produce
the alleged adverse effects, the effects or foreseeable effects on
employees which flow from the exercise of those rights, and how
those effects are adverse. In other words, a union must
articulate how employees will be detrimentally affected by
management's actions and how the matter proposed for bargaining is
intended to address or compensate for the actual or anticipated
adverse effects of the exercise of the management right or rights.
In this case, the Union does not state, nor is it readily apparent to
us, how this proposal would operate as an appropriate arrangement for
employees adversely affected by the exercise of management rights. We
have no basis, on the record, for concluding that it is negotiable as
such. The parties are responsible for creating the record upon which we
will resolve negotiability disputes. National Federation of Federation
Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A party
failing to assume this burden acts at its peril.
Based on the foregoing, we find that Proposal 4 is not within the
duty to bargain.
The Union's petition for review as to Proposals 1, 3 and 4 is
dismissed. The Agency shall upon request (or as otherwise agreed to by
the parties) negotiate concerning Proposal 2. /4/
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Agency did not file a statement of position. Therefore, we
rely on the Agency's contentions made in its allegation of
nonnegotiability, which it provided to the Union and the Union included
with its petition for review.
(2) We note that the Agency raises as a bar to negotiation of the
proposal its alleged conflict with a Government-wide regulation as
opposed to an agency regulation for which a compelling need exists.
(3) Insofar as the Bureau of Engraving and Printing is concerned,
Part 610 of title 5, C.F.R. specifically applies to "each employee whose
pay is fixed and adjusted from time to time under section 5343 or 5349
of title 5, United States Code. . . . " Section 5349 applies to, among
others, certain employees of the Bureau of Engraving and Printing.
(4) In finding that this proposal is within the duty to bargain, we
make no judgment as to its merits.
29 FLRA NO. 117
Federal Employees Metal Trades Council of Charleston and Dep't of the
Navy, Charleston Naval Shipyard, Charleston, S.C., Case Nos. 0-NG-1256
and 0-NG-1317, (Decided November 6, 1987)
7105(a)(2)(E)
7106(a)(2)(A), (B) and (C)
7106(b)(3)
APPROPRIATE ARRANGEMENTS
POSITION, FILLING OF
APPOINTMENTS, SELECTION OF
"APPROPRIATE SOURCE"
PRESCRIBED SOURCES
SUBSTANTIVE CRITERIA
REDUCTION-IN-FORCE
ASSIGN EMPLOYEE
POSITIONS, FILLING OF
ASSIGN WORK
DUTIES AND WORK TO BE ASSIGNED
EMPLOYEES TO WHOM WORK WILL BE ASSIGNED
NON-BARGAINING UNIT EMPLOYEE
MANAGEMENT OFFICIALS
CODE OF FEDREAL REGULATIONS
5 C.F.R. 330.201(c)
5 C.F.R. 330.201(f)
5 C.F.R. 340.401(b)
HIRE, RESERVED MANAGEMENT RIGHT
POSITIONS, FILLING OF
FEDERAL PERSONNEL MANUAL
CHAPTER 335, SUBCHAPTER 1-4
POSITION ASSIGNMENTS OR FILLING OF
PRIORITY OR PREFERENTIAL TREATMENT
RIFED EMPLOYEES
POSITION, FILLING OF
CAP ON NUMBER OF PARTICULAR EMPLOYEE TYPES
These consolidated cases arose out of negotiations over changes in an
Agency instruction concerning on-call employment. Four proposals were
at issue.
Proposal 1 -- This proposal consisted of three sentences. The first
and third sentences would require the department head to approve on-call
recruitment and to ensure that such recruitment is within a 5 percent
cap of the total number of employees in a particular trade. These
portions of the proposal would also assign specific duties to a
particular management official. The Authority found these two sentences
to be outside the duty to bargain, violating management's right to
assign work under section 7106(a)(2)(B), which encompasses the right to
assign specific duties to particular individuals, including management
officials. The third sentence essentially established a percentage cap
on the total number of on-call employees which the Agency may employ in
the bargaining unit, which the Authority found interfered with
management's authority under 7106(a)(2)(A) to hire and assign employees.
Proposal 2 -- The proposal would prescribe the source from which the
Agency could choose its year-round employees. That is, the Agency must
not "normally" fill year-round vacancies with on-call employees until it
has exhausted various other sources including Veterans Readjustment Act
employees, employees who have been reinstated, and reassigned employees.
The Authority determined that because the proposal dictates sources for
selection, it directly interferes with management's right to make
selections for positions from any appropriate source and is not a
negotiable procedure. By prescribing the sources from which management
will make selections to fill bargaining unit vacancies this proposal
directly interferes with management's rights under section
7106(a)(2)(C). The Authority noted that 5 C.F.R. section 340.401(b)
provides that on-call employees will move into an agency's year-round
workforce as vacancies occur.
Proposal 3 -- The proposal would preclude the Agency from expanding
the area of consideration for particular vacancies in the bargaining
unit until certain specified prerequisites were met. Specifically, the
proposal would preclude 1) the rating or ranking of an on-call employee
for a promotion above the Journeyman level until he or she is converted
to a year-round employee; and 2) the selection of an on-call employee
to fill a Journeyman level position until all highly qualified
year-round employee had been promoted. The Authority concluded that as
the proposal specifically limits management's discretion to rank on-call
employees until they have been converted to full-time and its discretion
to select a particular class of employees, it directly interferes with
management's right under section 7106(a)(2)(C) by prescribing
substantive criteria which management must apply in selecting employees
to fill vacancies. Moreover, the Authority found that the proposal is
not an appropriate arrangement within the meaning of section 7106(b)(3).
Proposal 4 -- This proposal concerns employees who have been affected
by reduction-in-force (RIF). It would require the Agency to select
these employees for various positions in preference to others. The
Authority found that by requiring the Agency to select certain
employees, the proposal directly interferes with the Agency's right to
select under section 7106(a)(2)(C).
As to whether the proposal is negotiable as an appropriate
arrangement under section 7106(b)(3), the Authority reviewed potentially
applicable provisions of the C.F.R. (5 C.F.R. sec. 330.201(c) and 5
C.F.R. sec. 330.201(f)) and the wording of the proposal and positions of
the parties and concluded that the Union had not met its burden of
creating a record on which a negotiability determination could be made.
Accordingly, the petition for review of Proposal 4 was dismissed. The
Authority noted in conclusion that in any subsequent bilateral
discussions over this matter, they encouraged the Union to clarify the
intent and wording of the proposal so as to facilitate bargaining
without further resort to litigation. In a separate concurring and
dissenting decision, Member Frazier concurred with the majority's
decision to dismiss the petition for review of this proposal for reasons
stated in a cited prior decision and dissented from the majority's
rejection of the Agency's contention regarding the inconsistency of the
proposal with Requirement 4 of the FPM chapter 335, subchapter 1-4.
Case Nos. 0-NG-1256
0-NG-1317
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON
Union
DEPARTMENT OF THE NAVY CHARLESTON NAVAL SHIPYARD CHARLESTON, SOUTH
CAROLINA
Agency
These cases are before the Authority because of negotiability appeals
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concern the
negotiability of four proposals. /1/ Since both cases involve the same
parties, arise out of the same negotiations over changes in an Agency
instruction concerning on-call employment, and present similar issues
concerning the negotiability of identical proposals, /2/ we have
consolidated them for decision.
For the reasons discussed below, the Authority finds that Proposals 1
(sentences 1 and 3), 2 and 3 are nonnegotiable. We also conclude that
the second sentence of Proposal 1 is within the duty to bargin. The
Authority Members have reached differing conclusions and opinions
concerning Proposal 4. The Decision and Order on Proposal 4 and Member
Frazier's concurring and dissenting opinion immediately follow this
decision.
a. Requests for on-call recruitment will have the approval of
the cognizant department head. The SF-52 will be annotated to
reflect that this is an on-call appointment. It wlll further
state that recruitment is not in excess of 5 percent of that
occupation or trade.
The Agency asserts that this proposal expressly requires that a
specific employee, the "cognizant department head" will approve on-call
recruitment requests. /3/ The Agency contends that this aspect of the
proposal is inconsistent with its right to assign work under section
7106(a)(2)(B) of the Statute. Moreover, since the proposal concerns
non-bargaining unit employees, namely supervisors, it is outside the
duty to bargain. The Agency also contends that the third sentence of
the proposal regarding a cap of 5 percent for on-call employment in each
occupation directly interferes with its right to determine the numbers
and types of employees under section 7106(b)(1) and prevents it from
determining the personnel by which the Agency conducts its operations in
violation of section 7106(a)(2)(B).
The Union acknowledges that the first sentence of the proposal is
intended to require a specific employee, the cognizant department head,
to determine the need for the recruitment of on-call employees because a
department head would be the best person to make the determination.
Further, it asserts that the third sentence of the proposal reflects the
goal of the pertinent Agency Instruction that on-call employees be
provided with "an opportunity to work for a total of at least six
months." Reply Brief at 2. In response to the Agency's argument
concerning section 7106(b)(1), the Union states that while this agency
instruction provides that on-call recruitment should be limited to 20
percent of the workforce, it does not prohibit a 5 percent cap which, in
the Union's opinion, would greatly reduce the adverse impact of the
utilization of on-call employment on the Agency and its employees.
We conclude that the first and third sentences of this proposal are
outside the duty to bargain because they would interfere with the
Agency's rights, respectively, under section 7106(a)(2)(B) of the
Statute to assign work and under section 7106(b)(1) of the Statute to
determine the numbers and types of its employees. The second sentence
of the proposal, which merely provides that notation of an on-call
appointment will be made on an employee's SF-52, is not in dispute.
As to the first sentence, we have consistently held that management's
right to assign work under section 7106(a)(2)(B) encompasses the right
to assign specific duties to particular individuals, including
management officials, and that provisions which interfere with this
right are nonnegotiable. American Federation of Government Employees,
AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test,
Measurement, and Diagnostic Equipment Support Group, The U.S. Army
Information Systems Command-Redstone Arsenal Commissary, 27 FLRA No. 14
(1987) (provision 6), petition for review filed sub nom. U.S. Army
Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment
Support Group, U.S. Army Information Systems Command-Redstone Arsenal
Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987); National
Association of Government Employees, AFL-CIO, Local R14-87 and
Department of the Army and the Air Force, Kansas Army National Guard, 19
FLRA 381 (1985).
In this case, the proposal requires the department head to approve
on-call recruitment and to ensure that such recruitment is within a 5
percent cap of the total number of employees in a particular trade. The
proposal would also, as expressly stated by the Union on page 1 of its
Reply Brief, assign specific duties to a particular management official,
namely the cognizant department head. We find, therefore, that this
sentence is outside the duty to bargain for the reasons cited in
Redstone Arsenal and Kansas Army National Guard. We also note, however,
that, as in Redstone Arsenal, this defect could be remedied by removing
the requirement that it be the department head who must undertake these
duties.
Finally, we find that the third sentence of this proposal essentially
establishes a percentage cap on the total number of on-call employees
which the Agency may employ in the bargaining unit. Thus, the proposal
concerns both the number and types of positions the Agency may fill with
on-call employees. The Authority previously has held that proposals
requiring an agency to fill a certain percentage of positions with
certain types of employees are inconsistent with the agency's authority
under section 7106(a)(2)(A) of the Statute to hire and assign employees.
See, for example, Immigration and Naturalization Service, Eastern
Regional Office (Burlington, Vermont), 18 FLRA 875, 883 (1985) Proposals
9 and 10). Accordingly, the third sentence of this proposal is outside
the duty to bargain under section 7106(a)(2)(A).
c. The shipyard will normally fill year-round positions by VRA
appointments, reinstatements, reassignments, merit promotions, and
appointments to formal training programs before converting on-call
employees to year-round employment.
The Agency contends that this proposal: 1) directly interferes with
its right under section 7106(a)(2)(C) of the Statute to fill positions
from any appropriate source; and 2) violates a Government-wide
regulation, namely, Federal Personnel Manual chapter 335, subchapter
1-4, Requirement 4. Essentially, the Union argues that the word
"normally" allows the Agency to select from any appropriate source.
Moreover, it argues that the proposal does not "excessively interfere"
with management's right to hire or select because the final decision to
hire rests with the Agency.
We conclude that the proposal is outside the duty to bargain.
The Union's argument that management has the final word in selection
is not determinative. More to the point is the fact that the proposal
prescribes the sources from which the Agency could choose its year-round
employees. That is, the Agency must not "normally" fill year-round
vacancies with on-call employees until it has exhausted various other
sources including Veterans Readjustment Act (VRA) employees, employees
who have been reinstated, and reassigned employees. Because this
proposal dictates sources for selection, it directly interferes with
management's right to make selections for positions from any appropriate
source and is not a negotiable procedure. By prescribing the sources
from which management will make selections to fill bargaining unit
vacancies this proposal directly interferes with management's rights
under section 7106(a)(2)(C). See, for example, Colorado Nurses
Association and Veterans Administration Medical Center, Ft. Lyons,
Colorado, 25 FLRA No. 66 (1987) (proposal 5), petition for review filed
sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir.
Feb. 25, 1987).
Moreover, the Union's contention that the term "normally" introduces
an element of discretion into the proposal because the Agency still
retains the right to select must be rejected (Reply Brief at 2). In our
view, this qualifying language does not diminish the effect of the
provision -- a substantive limitation on management's right to select
from appropriate sources in filling a vacancy. See, for example,
National Federation of Federal Employees, Local 1461 and Department of
the Navy, U.S. Naval Observatory, 26 FLRA No. 96 (1987). It would
directly affect management's selection process by specifically listing
and ranking sources for selection. It would subject management's
decision as to whether a selection was made "normally" to arbitral
review and therefore to the possibility of arbitrators substituting
their judgments for that of management. See American Federation of
Government Employees, AFL-CIO, Local 1968 and Department of
Transportation, Saint Lawrence Seaway Development Corporation, Massena,
New York, 5 FLRA 70, 79-80 (1981), affirmed sub nom. AFGE, Local 1968 v.
FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983).
Furthermore, the Union has not shown how management's selection of a
candidate for a vacancy in itself would adversely affect the employees
it represents. In the absence of anything in the record which would
demonstrate how bargaining unit employees are adversely affected by
management's decision to select a particular candidate for a vacancy, we
need not determine whether this proposal is an "appropriate arrangement"
within the meaning of section 7106(b)(3). See Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA No. 29 (1987) (Secton 3.K.), petition for review filed
sub nom. Patent Office Professional Association v. FLRA, No. 87-1135
(D.C. Cir. March 26, 1987). Thus, for the reasons stated above, this
proposal is outside the Agency's duty to bargain. In view of our
determination that this proposal is inconsistent with management's right
to select, we find it unnecessary to consider the Agency's other
contentions pertaining to the negotiability of this proposal. However,
we note that 5 C.F.R. Section 340.401(b) provides that on-call employees
will move into an agency's year-round workforce as vacancies occur.
On-call employees are entitled to participate in Charleston
Naval Shipyards Merit Promotion Program after completion of the
Probationary Period if rated as satisfactory (Fully Successful).
The on-call employee may not be rated or ranked for promotions
above the Journeyman level until they are converted to year-round
employment. An employee selected for an on-call position below
the Journeyman level may not be promoted to the Journeyman level
in the same trade through the Merit Promotion process (remaining
as on-call) until all year-round employees rated as highly
qualified have been promoted off the current register.
The Agency asserts that this proposal is nonnegotiable because it:
1) establishes a qualification requirement for promotion in
violation of section 7106(a)(2)(A) and (B) of the Statute;
2) interferes with management's right to select from any
appropriate source under section 7106(a)(2)(C); and
3) contravenes a Government-wide regulation, namely FPM chapter
335, subchapter 1-4, Requirement 4.
The Union disputes the Agency's contentions and asserts that this
proposal is an appropriate arrangement for employees adversely affected
by the on-call program.
We conclude that the proposal directly and excessively interferes
with the Agency's right to make selections under section 7106(a)(2)(C)
of the Statute and is, therefore, outside the duty to bargain.
The proposal would preclude the Agency from expanding the area of
consideration for particular vacancies in the bargaining unit until
certain specified prerequisites were met. Specifically, the proposal
would preclude 1) the rating or ranking of an on-call employee for a
promotion above the Journeyman level until he or she is converted to a
year-round employee; and 2) the selection of an on-call employee to
fill a Journeyman level position until all highly qualified year-round
employees have been promoted. Thus, the proposal specifically limits
management's discretion to rank on-call employees until they have been
converted to full-time and its discretion to select a particular class
of employees. It, therefore, directly interferes with management's
right under section 7106(a)(2)(C) by prescribing substantive criteria
which management must apply in selecting employees to fill vacancies.
Inasmuch as its requirements are substantive in nature even though
procedural in form, it is not a negotiable procedure under section
7106(b)(2). See American Federation of Government Employees, AFL-CIO
and Air Force Logistics Command, Wright-Patterson Air Force Base Ohio, 2
FLRA 604 (1980), enforced sub nom. Department of Defense v. FLRA, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945 (1982).
Moreover, we also find that this proposal is not an "appropriate"
arrangement within the meaning of section 7106(b)(3) of the Statute.
Although the Union contends that this proposal is meant to be an
appropriate arrangement under section 7106(b)(3), there is nothing in
the record to demonstrate how the Agency's rating or selection of an
on-call employee for promotion adversely affects full time employees.
In our view, as dicsussed in section III.B of this decision,
management's rating or selection of candidates for promotion does not,
by itself, adversely affect unit employees. See, for example,
Department of Health and Human Services, Social Security Administration
v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of
Federal Employees, Council of Consolidated SSA Locals and Department of
Health and Human Services, Social Security Administration, 17 FLRA 657
(1985). To establish that a proposal is an appropriate arrangement a
Union must identify the management right or rights claimed to produce
the alleged adverse effects or foreseeable effects on employees which
flow from the exercise of those rights, and how those effects are
adverse. National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA No. 4 (1986). The Union has not
done so in this case and we are unable to identify any adverse effect on
unit employees from the record. We need not determine, therefore,
whether this proposal is an "appropriate" arrangement since it does not
qualify for consideration under section 7106(b)(3). Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA No. 29 (1987) (Section 3.K.), petition for review
filed sub nom. Patent Office Professional Association v. FLRA, No.
87-1135 (D.C. Cir. March 26, 1987). Thus, for the reasons stated above,
Proposal 3 is outside the Agency's duty to bargain. In view of our
decision that this proposal is inconsistent with management's right to
select, we find it unnecessary to consider the Agency's other
contentions concerning the nonnegotiability of the proposal. Again we
note that 5 C.F.R. Section 401(b) provides that on-call employees will
move into an agency's year-round work force as vacancies occur.
The Union's petitions for review as to Proposals 1, 2 and 3 are
dismissed.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
f. Full time employees affected by RIF action will be offered
on-call employee status and will be called back as on-call
employees and will be offered conversion to year-round employment
before any on-call employee who has not been a full time employee
in that occupation or grade. Full time employees placed in an
on-call employment status will be converted to full time
employment in order of seniority (SCD).
The Agency asserts that the proposal is outside its duty to bargain
because it interferes with management's rights to 1) layoff employees
under section 7106; 2) assign employees; and 3) select from any
appropriate source under section 7106(a)(2)(C). It also contends that
this proposal contravenes FPM chapter 335, subchapter 1-4, Requirement
4. Finally, it argues that the proposal is not a procedure nor an
appropriate arrangement under section 7106(b)(2) or (3).
The Union contends that the proposal is consistent with the Statute
and Government-wide regulation. It argues that the proposal is an
"appropriate arrangement" for full time employees affected by the
on-call program.
We conclude that the Union's petition for review of this proposal
must be dismissed because there is insufficient information in the
record to enable us to make a negotiability ruling.
The proposal concerns employees who have been affected by
reduction-in-force (RIF). It would require the Agency to select these
affected employees for various positions in preference to others. By
requiring the Agency to select certain employees, the proposal directly
interferes with the Agency's right to select under section 7106(a)(2)(C)
of the Statute. See, for example, National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986). Since the proposal directly interferes with the Agency's right
to select, it may be found to be negotiable as an appropriate
arrangement under section 7106(b)(3) only. Id.
The standard applied by the Authority in determining whether a
proposal constitutes an appropriate arrangement is whether the proposal
excessively interferes with the exercise of a management right. Id. In
this case, it is clear that the proposal is intended by the Union to be
an arrangement for adversely affected employees. Further, although the
Union states that the proposal is an arrangement for employees adversely
affected by the establishment of the on-call program, similar proposals
in other cases have been analyzed as arrangements for employees
adversely affected by the Agency's decision to conduct a
reduction-in-force. See, for example, Congressional Research Employees
Association and Library of Congress, Congressional Research Service, 25
FLRA 306 (1987) (Proposals 7 and 8).
But for the additional problems resulting from the particular wording
of this proposal which are discussed below, Proposal 4 would be analyzed
as an appropriate arrangement for employees adversely affected by the
Agency's decision to conduct a reduction-in-force. Further, if the
proposal were found to constitute an appropriate arrangement, we would,
for the reasons expressed in our separate opinions concerning Proposal 2
in American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, 29 FLRA No. 40 (1987), reject the
Agency's contention that the proposal is nonnegotiable because it is
inconsistent with FPM chapter 335, subchapter 1-4, Requirement 4.
The present proposal, however, is unlike proposals in previous cases
concerning appropriate arrangements for employees adversely affected by
a reduction-in-force. The proposal in this provides for former
full-time employees to be 1) given preference over former on-call
employees for selection to on-call and full-time positions, and (2)
converted to full-time status in order of seniority by service
computation date (SCD). As such, other regulatory provisions are also
relevant to this discussion.
Employees who are separated through a RIF from a position in the
competitive service are placed on a reemployment priority list. 5
C.F.R. Section 351.1001. The list includes full-time and
other-than-full-time employees in tenure groups I (career employees) and
II (career-conditional employees). On-call employees are
other-than-full-time. See generally Federal Personnel Manual chapter
342, subchapter 3. When a qualified employee is available on an
agency's reemployment priority list for a position in the applicable
commuting area, an agency must, with exceptions not relevant here,
select an employee on the list for the vacancy rather than filling it by
a new appointment or a transfer. 5 C.F.R. Section 330.201(a).
When selecting an employee on the list, the agency must give
preference to (1) tenure group I employees over tenure group II, and (2)
preference eligibles over nonpreference eligibles. 5 C.F.R. Section
330.201(c). Preference eligibles generally include certain veterans and
relatives. See 5 U.S.C. Section 2108. Within a subgroup, however,
employees may be selected without regard to their order of retention. 5
C.F.R. Section 330.201(c). Further, an agency considers full-time
employees on the list only for full-time positions and
other-than-full-time employees for other-than-full-time employees for
other-than-full-time positions unless there are (1) no
other-than-full-time employees on the list who are qualified and
available for an other-than-full-time position, or (2) no full-time
employees on the list who are qualified and available for a full-time
position. 5 C.F.R. Section 330.201(f).
The first sentence of the Union's proposal provides that full-time
employees affected by a RIF will be "called back as on-call employees
and will be offered conversion to year-round employment before any
on-call employee who has not been a full-time employee in that
occupational series or grade." The precise meaning of this sentence is
unclear and is not explained by the Union's statement of position or
response. In particular, it is unclear whether the proviso "before any
on-call employee who has not been a full-time employee in that
occupational series or grade" is intended to modify both the portion of
the proposal meaning conversion to year-round employment and the portion
concerning call-back to on-call employment. To the extent that the
proviso is intended to modify the portion concerning call-back to
on-call employment, the sentence is nonnegotiable because it would
require that a full-time employee be given preference for an
other-than-full-time position even when there was an
other-than-full-time employee on the reemployment priority list. As
noted above, this is contrary to 5 C.F.R. Section 330.201(f).
Similarly, when read as a whole, the proposal requires that former
full-time employees be converted from on-call employment to full-time
employment (1) before any on-call employee who was not previously a
full-time employee, and (2) in order of seniority as determined by SCD.
As such, to the extent that previous employment status and service
computation date are intended to be the sole criteria by which the
Agency determines which employees will be selected from the reemployment
priority list for full-time vacancies, the proposal could prevent the
Agency from complying with its responsibilities under 5 C.F.R. Section
330.201(c) to give preference to preference eligibles as well as
employees in tenure group I. Accordingly, the proposal would be
nonnegotiable on that basis as well.
On the other hand, if the Union intends the first sentence of the
proposal to mean only that former full-time employees will be (1)
offered on-call positions in accordance with applicable regulations, and
(2) offered full-time positions before former on-call employees, the
proposal would be negotiable. As noted above, an agency may offer a
full-time employee on a reemployment priority list an
other-than-full-time position if there are no other-than-full-time
employees on the list. Therefore, the Agency could under certain
circumstances offer former full-time employees on-call positions.
Similarly, acceptance by a former full-time employee of an
other-than-full-time position would not result in deletion of that
employee from the list. 5 C.F.R. Sections 351.1003, 351.1004. Further,
the Agency could not consider a former on-call employee for a full-time
position as long as there was a qualified and available former full-time
employee on the list -- even one who had accepted an on-call position.
As a result, a requirement that the Agency offer (convert) a former
full-time employee to a full-time position would not be inconsistent
with applicable regulations.
In addition, if the Union intends the proposal to mean that the
conversion of former full-time employees to full-time positions would be
controlled by seniority within subgroups (preference eligibles and
nonpreference eligibles), the proposal would be netogiable. This is
because under 5 C.F.R. Section 303.201(c), the Agency "may select
persons in a subgroup without regard to order of retention standing
within the subgroup." That is, the Agency has the authority --
discretion -- to select any qualified and available employee within the
subgroup. That discretion is negotiable. See Library of Congress v.
FLRA, 699 F.2d 1280, 1289 (D.C. Cir. 1983).
The parties bear the burden of creating a record on which the
Authority can make a negotiability determination. NFFE Local 1176 v.
FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). In this case, the Union has
not met its burden of creating a record containing sufficient
information concerning Proposal 4 to enable us to make a negotiability
determination. 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, 29 FLRA No. 73 (1987) (Proposal 30). Accordingly,
the petition for review of Proposal 4 will be dismissed. In any
subsequent bilateral discussions over this matter, we encourage the
Union to clarify the intent and wording of this proposal so as to
facilitate bargaining without further resort to litigation.
The Union's petition for review of Proposal 4 is dismissed.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, concurring and dissenting as to Proposal 4:
Although I concur in my colleagues' decision to dismiss the Union's
petition for review of Proposal 4, for the reasons more fully stated in
my separate opinion on Proposal 2 in American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA
No. 40 (1987), I must respectfully dissent from their rejection of the
Agency's contention regarding the inconsistency of Proposal 4 with
Requirement 4 of the Federal Personnel Manual chapter 335, subchapter
1-4.
Issued, Washington, D.C., November 6, 1987.
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
(1) During the pendency of the case, the Agency withdrew its
allegation of nonnegotiability in regard to another proposal (paragraph
7 of the proposals in Case No. 0-NG-1256). Consequently, we will not
consider that proposal in this decision.
(2) Proposal 1 concerning Shipyard Responsibilities is common to both
cases.
(3) According to chapter 340, subchapter 3 of the Federal Personnel
Manual (FPM), an on-call employee serves under a permanent appointment
(tenure group I or II) and works on an as needed basis during weeks of
heavy workload with an expected cumulative service period of at least 6
months in pay status each year. We also note that paragraph 3-10 of
this subchapter provides that an on-call employee's movement to a year
round position is not subject to competition unless required by the
procedures specified in FPM Chapter 335 concerning promotion and
internal placement.
29 FLRA NO. 116
Patent Office Professional Association and Patent and Trademark
Office, Department of Commerce, Case No. 0-NG-1145, (Decided November 6,
1987)
7105(a)(2)(E)
7106(a)(2)(A) and (B)
7106(b)(2)
ASSIGN WORK
EMPLOYEES
NON-BARGAINING UNIT EMPLOYEE
SUPERVISORS
PERFORMANCE STANDARDS
PERFORMANCE APPRAISAL SYSTEM
BARGAINING
DUTY TO BARGAIN AND NEGOTIABILITY
CODE OF FEDERAL REGULATIONS
5 C.F.R. 430
5 C.F.R. 432
COMPENSATION
WITHIN-GRADE INCREASE
PERFORMANCE STANDARDS
DIRECT EMPLOYEES, RESERVED MANAGEMENT RIGHT
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE STANDARDS
DISCIPLINE EMPLOYEES, RESERVED MANAGEMENT RIGHT
CRITERIA FOR IMPOSING DISCIPLINE
BARGAINING OVER
PROCEDURES
GOVERNMENT-WIDE RULES OR REGULATIONS
FOUND OR AFFIRMED TO BE GOVERNMENT-WIDE REGULATIONS
5 C.F.R. 531.404
MANAGEMENT RIGHTS: GENERALLY
ARBITRAL REVIEW
SUBSTITUTION OF ARBITRATOR'S JUDGMENT FOR MANAGEMENT'S
PERFORMANCE APPRAISAL SYSTEM
ARBITRAL REVIEW
INDEPENDENT EVALUATION OF GRIEVANT'S PERFORMANCE
SUBSTITUTING THE ARBITRATOR'S JUDGMENT FOR MANAGEMENT'S
AUDITING OR MEASURING WORK PERFORMANCE
METHODS OR MEANS OF AUDITING WORK
COUNSELLING OF EMPLOYEE
PERFORMANCE IMPROVEMENT PLAN
PERFORMANCE EVALUATION
FREQUENCY AND SCHEDULING OF EVALUATIONS
PUBLICATION OF PERFORMANCE PLANS
PERFORMANCE STANDARDS
CONTENTS OF
FAIR AND EQUITABLE STANDARDS
NEGOTIATIONS
ESTABLISHMENT AND REVISION OF
MEETINGS WITH EMPLOYEES
POSITION
TRANSFER OF EMPLOYEE
UNITED STATES CODE
5 U.S.C. 4302(a)(3)
5 U.S.C. 4302(b)(1)
5 U.S.C. 4303
5 U.S.C. 7512
5 U.S.C. 4302(b)(6)
35 U.S.C. 122
At issue in this negotiability case was 14 separate proposals. The
Authority concluded:
Proposal 1 -- The first and third sentences of a proposal concerning
the establishment or modification of any performance appraisal plan was
at issue. The first sentence would require that the supervisor hold a
meeting with employees to discuss proposed performance appraisal plans
when plans to no more than 15 employees. The Authority reasoned that
the sentence would require that the Agency assign someone in supervision
to meet with employees concerning the establishment of performance
standards. Noting its existing precedent that the manner in which a
particular agency provides for employee participation is the
establishment of performance standards was within agency discretion and
within the duty to bargain to the extent that it would not prevent the
agency from exercising its right to establish standards and elements
(its rights under section 7106(a)(2)(A) and (B)), the Authority found
that the sentence concerned the manner in which the agency would provide
for employee participation. The Authority further found the sentence to
be consistent with 5 U.S.C. sec. 4302(a)(2) and OPM implementing
regulations, e.g., 5 C.F.R. sec. 430.204(c)(1) (1987) "Thus, the
requirement that supervisors be involved in a joint process with
employees or their representatives in the development of performance
standards results from the application of statute and implementing
Government-wide regulations not from the first sentence of this
proposal." Finally, the Authority found that the sentence did not
violate the Agency's right under section 7106(a)(2)(B) to assign work
and does not prevent management from designating other Agency officials
to participate in meetings regarding proposed peroformance appraisal
plans or in any manner prevent the Agency from establishing performance
standards. Accordingly, the first sentence is within the duty to
bargain.
The third sentence required that a supervisor make a written report
giving the reasons for rejecting employee suggestions regarding
performance standards. The Authority found the sentence nonnegotiable,
violating section 7106(a)(2)(B), in that it would require the Agency to
assign a specific tasks to a supervisor. The Authority noted however
that this defect is easily cured by deleting the reference to a
particular management official.
Proposal 2 -- The Authority determined that the portion of the
proposal which provided that standards of fair, equitable and reasonable
to permit the accurate evaluation of job performance to be nonnegotiable
in that it concerned the content of performance standards, constituting
general criteria governing the standard. The Authority noted in this
regard that the proposal would permit arbitrators to substitute their
judgment as to the content of performance standards which management
should adopt.
Proposal 3 -- At issue was that portion of a proposal that required
management to publish in an agency publication that is distributed both
to agency clientele and unit employees proposed performance plans and
the union's analysis of them. Rejecting the agency's sole argument, the
Authority concluded that the proposal is within the duty to bargain
because it directly affects the employment relationship of unit
employees.
Proposal 4 -- The Authority reviewed separately the two sentences of
the disputed proposal. As to the first sentence, in the Authority's
view it sought to negotiate the content of performance standards. The
Authority stated, "the presence of that sentence . . . would oblige
management to negotiate over any revision to the standards which
conflicts with the sentence," interfering with management's power to
modify or discontinue the current practice.
The second sentence of the disputed proposal, described as requiring
the Agency to alter performance standards of patentability
determinations and actions taken for patent examiners having less than
full signatory authority, was found to conflict with management's right
to assign work and direct employees under section 7106(a)(2)(A) and (B).
Proposal 5 -- That portion of a proposal which establishes criterion
for determining the degree of responsibility for errors which would be
used in evaluating patent examiners, who are below the full performance
level, for promotion was found to be a negotiable procedure to be used
in evaluating whether an employee would be able to perform at a higher
level, not violating rights reserved to management by section
7106(a)(2)(A) and (B) of the Statute.
Proposal 6 -- That portion of a proposal which specified that a
performance period was "short time" unless the performance is averaged
over a period of a least twelve consecutive months was found to be
nonnegotiable. The Authority reasoned that the proposal would, in
effect, prevent management from taking disciplinary action against an
employee unless it could be established that the employee's performance,
over a period of at least 12 months prior to the decision to take
disciplinary action was, on average, unacceptable. This would violate 5
C.F.R. sec. 432.203(a), which permits agencies to take performance based
adverse actions "at any time during the performance cycle that the
employee's performance in one or more critical elements of the job
become unacceptable."
Proposal 7 -- At issue was a portion of a proposal that provided that
the specified improvement period would be seven pay periods unless the
employee and his supervisor agree on a different specified improvement
period of at least three pay periods. In the Authority's view the
proposal is clearly subject to negotiations, not interfering with
management's right to retain employees. The Authority also noted that
while applicable law and regulation only require an improvement period
for employees whose performance is unsatisfactory, there is nothing in
law or regulation which precludes an improvement period for employees
whose performance is marginal.
Proposal 8 -- The disputed proposal would limit the penalty the
Agency may impose when an employee is demoted for unacceptable
performance by requiring that a demotion be to the fifth step of the
highest grade in which the quantitative performance would be considered
acceptable. The Authority concluded that the proposal directly
interfered with management's right to take action for unacceptable
performance, thus excessively interfering with management's right to
impose discipline under section 7106(a)(2)(A).
Proposal 9 -- The disputed portion of the proposal provided that an
employee would be entitled to a within grade increase at the end of the
waiting period if either (1) his average performance over the waiting
period is at least satisfactory and his current performance is at least
marginal or (2) the performance was justified by unusual circumstances.
Unusual circumstances was defined as synonymous with extenuating
circumstances which may be either job related or temporary personal such
as an illness, a death in the family or marital problems. The Authority
concluded that the proposal violated Government-wide regulations (5
C.F.R. 531.404(a) (1987)) and is inconsistent with management's right to
direct employees and assign work.
Proposal 10 -- The Authority considered the two sentences of the
proposal separately. As to the first sentence, which would require that
if an appraising official is recommending a negative determination, that
official give it to the employee in writing before forwarding it to the
Personnel Office, the Authority concluded that it conflicts with
Government-wide regulations on performance appraisals which require that
"ratings of record may not be communicated to employees prior to
approval by the final reviewer," 5 C.F.R. 430.206(c).
As to the second sentence, which provides that failure to furnish
written notice of a negative determination within the prescribed time
limit will be conclusive evidence of an acceptable level of competence,
it was found to be violative of Government-wide regulations which
provide that "failure to inform an employee of a negative determination
may not be the basis for changing it." (FPM chapter 531, subchapter
4-9.c.(2).
Proposal 11 -- The disputed portion of the proposal provided that
performance at or above the satisfactory level for six months is
sufficiently sustained performance to warrant the grant of a within
grade increase. The Authority rejected the Agency's contention that the
proposal violated 5 C.F.R. 531.411, concluding that the regulation
allows the Agency discretion to determine the length of the performance
period before management reevaluates an employee who was previously
denied a within grade increase. "Where the grant of discretion is not
sole and exclusive, the matter is within the duty to bargain."
Proposal 12 -- This proposal provided that if management fails to
comply with any step in the procedures of the section, management must
repeat that step properly before any more serious disciplinary action
can be taken against the employee. The Authority members expressed
different views on this proposal. The majority made up of Members
Frazier and McKee noted that in Cornelius v. Nutt, 472 U.S. 648 (1985),
the Supreme Court held that if a disciplinary action taken under 5
U.S.C. 4303 or 7512 is grieved under a negotiated grievance procedure,
an arbitrator must apply the same substantive standards, including the
harmful error rule, that would be applied if the matter had been
appealed through the appellate procedures of 5 U.S.C. 7701(c)(1). They
concluded that as the proposal would require an arbitrator to disregard
the harmful error rule when an action is grieved which could have been
pursued under 5 U.S.C. 4303 or 7512, it is nonnegotiable. However, for
actions not appealable under those portions of the U.S.C., the two
Members view the proposal as within the duty to bargain.
In a concurring opinion Chairman Calhoun agreed that to the extent
that the proposal applies to actions which are appealable under 5 U.S.C.
4303 and 7512 it is nonnegotiable for the reasons given in the majority
opinion. He disagrees however with their conclusion that to the extent
it applies to lesser disciplinary actions, it is negotiable because it
does not prevent the Agency from "acting at all" to exercise its rights.
In Chairman Calhoun's view, the Authority should examine the real
effects of the proposals on the exercise of management's right, which in
this case simply requires the Agency to comply with its agreement
concerning procedures to be observed in taking performance-based
disciplinary actions. Any delay in exercise of the Agency's rights is
attributable to effectuation of those agreed-upon procedures. As such,
the proposal does not interfere with the exercise of management's
rights, but constitutes a procedure under section 7106(b)(2).
Proposal 13 -- The disputed portion of a proposal provided that
unless successfully rebutted, no disciplinary action will be taken and
the employee will be given one opportunity to transfer with his or her
art to another supervisor. This would, in the opinion of the Authority,
permit an employee who prevails in a grievance over the application of
performance standards to transfer to another supervisor at the
employee's option. Noting that the Authority has consistently held that
proposals compelling the selection of a sepcific individual for
reassignment are outside the duty to bargain, it was concluded that the
proposal interferes with management's right to direct employees and
assign work and is outside the duty to bargain.
Proposal 14 -- According to statute, patent applications must be kept
confidential unless disclosure is authorized by the applicant or patent
owner or "unless necessary to carry out the provisions of any Act of
Congress or in such special circumstances as may be determined by the
Commissioner." 35 U.S.C. 122 (1982). The disputed portion of the
proposal states that an employee in the Solicitor's office is assigned
to process the waivers permitted by statute. The Authority concluded
that the proposal directly interferes with the Agency's right under
section 7106(a)(2)(B) to assign work and determine the personnel by
which its operations will be conducted. Moreover, the Authority
concluded that the proposal excessively interferes with management's
right and is not a negotiable appropriate arrangement.
Case No. 0-NG-1145
PATENT OFFICE PROFESSIONAL ASSOCIATION
Union
PATENT AND TRADEMARK OFFICE DEPARTMENT OF COMMERCE
Agency
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Labor-Management
Relations Statute (the Statute). It concerns the negotiability of 14
proposals. For the reasons discussed below, we conclude that Proposals
2, 4, 6, 8, 9, 10, 13, 14, and the third sentence in Proposal 1 are
outside the duty to bargain. The first sentence in Proposal 1,
Proposals 3, 5, 7, and 11 are negotiable. Additionally, we note that
Proposal 12 is found to be negotiable in a separate opinion (Chairman
Calhoun concurring).
Section 3.C. Prior to the establishment or substantive
modification of any performance appraisal plan the following
procedure will be used:
1. When the proposed performance appraisal plan applies to no
more than fifteen employees, the supervisor shall hold a meeting
with the involved employees so that the employees can provide
input on the plan. POPA shall be provided an opportunity to have
a representative present at this meeting. The supervisor shall
make a written report providing reasons for rejecting any
suggestions prior to establishment or modification, or
negotiations, if the proposal involved negotiable subject matter.
(Only the first and third sentences are in dispute.)
The Agency contends that the proposal directs employees' immediate
supervisors to perform certain functions. Therefore, the Agency asserts
that it is inconsistent with section 7106(a)(2)(B) of the Statute, which
reserves to management the authority to assign work.
The Union argues that 5 U.S.C. Section 4302(a)(2) requires employee
participation in developing performance standards. Thus, the Union
asserts that Proposal 1 provides a procedure within the meaning of
section 7106(b)(2) of the Statute, to implement 5 U.S.C. Section
4302(a)(2). Further, according to the Union, the use of the term "the
supervisor" in the proposal is intended to designate individuals who
perform supervisory functions rather than a particular level in
supervision, such as the employee's immediate supervisor.
The first sentence in Proposal 1 would require that "the supervisor"
hold a meeting with employees to discuss proposed performance appraisal
plans when plans apply to no more than 15 employees. Accepting the
Union's statement of intent regarding the term "the supervisor," we find
that it designates any individual in supervision who performs
supervisory tasks. Based on this understanding, the first sentence of
Proposal 1 would require that the Agency assign someone in supervision
to meet with employees concerning the establishment of performance
standards.
In National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 769, 778 (1980), aff'd sub nom. NTEU
v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority stated that 5
U.S.C. Section 4302(a)(2) "encouraged employee participation in
establishing performance standards" but did not specify the form which
such employee participation must take. Thus, the Authority found that
the manner in which a particular agency provides for such employee
participation was within that agency's discretion and within the duty to
bargain to the extent that it would not prevent the agency from
exercising its right to establish performance standards and critical
elements, that is, its rights under section 7106(a)(2)(A) and (B) to
direct employees and to assign work. Based on its decision in Bureau of
the Public Debt, the Authority determined in National Federation of
Federal Employees, Local 1430 and Department of the Navy, Northern
Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45
(1984), that Proposal 1 in that case which required, among other things,
that the identification and establishment of performance standards would
be a "joint planning communication process between the employee and the
aid of the steward and the supervisor" was negotiable. The Authority
found that Proposal 1 in that case did not prevent the agency from
establishing performance standards but rather, was concerned with the
manner in which the agency would provide for employee participation in
the establishment of those performance standards.
Similarly, the first sentence of Proposal 1 in this case also
concerns the manner in which the Agency will meet the requirement of 5
U.S.C. Section 4302(a)(2) to include employee participation in the
establishment of performance standards. Further, the form of the
employee participation required by the first sentence of this proposal
is entirely consistent with Government-wide regulations promulgated by
the Office of Personnel Management (OPM) implementing 5 U.S.C. Section
4302(a)(2). For example, 5 C.F.R. Section 430.204(c)(1) (1987) provides
that employee participation in the development of performance standards
may be achieved by several means, specifically including that
"(e)mployee and supervisor discuss and develop performance plan
together." In addition, the Federal Personnel Manual (FPM) states that
employee participation may be accomplished by discussions between "a
representative sample of employees and their supervisors." FPM chapter
430, subchapter 2-3.d. Thus, the requirement that supervisors be
involved in a joint process with employees or their representatives in
the development of performance standards results from the application of
statute and implementing Government-wide regulations and not from the
first sentence of this proposal.
Moreover, the first sentence of this proposal does not specify the
form of participation or assign any particular tasks. Therefore,
contrary to the Agency's contention, we find that the first sentence of
Proposal 1 does not violate the Agency's right under section
7106(a)(2)(B) to assign work. Thus, the first sentence is within
management's duty to bargain.
In holding the first sentence of Proposal 1 to be negotiable, we note
that it does not prevent management from designating other Agency
officials to participate in meetings regarding proposed performance
appraisal plans or in any manner prevent the Agency from establishing
performance standards.
As contrasted with the first sentence of Proposal 1, the third
sentence of the proposal requires that a supervisor make a written
report giving reasons for rejecting employee suggestions regarding
performance standards. Thus, it would require that the Agency assign to
a supervisor a specific task not otherwise required by the law and
regulations governing employee participation in the establishment of
performance standards.
It is well-established that proposals which require management to
assign specific tasks to particular individuals, including supervisors,
are nonnegotiable because they interfere with management's right to
assign work under section 7106(a)(2)(B). See, for example, American
Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
Missile Command, the U.S. Army Test, Measurement, and Diagnostic
Equipment Support Group, the U.S. Army Information Systems
Command-Redstone Arsenal Commissary, 27 FLRA 69 (1987) (Provisions 6, 8,
and 10), petition for review filed sub nom. U.S. Army Missile Command
U.S. Army Test, Measurement, and Dianostic Equipment Support Group, U.S.
Army Information Systems Command-Redstone Arsenal Commissary, v. FLRA,
No. 87-7445 (11th Cir. July 17, 1987). Therefore, since the third
sentence in Proposal 1 would require the Agency to assign a specific
task to a supervisor, it is nonnegotiable. However, this defect is
easily cured by deleting the reference to a particular management
official. U.S. Army Missile Command at 81 (1987).
In conclusion, we hold that the first sentence in Proposal 1 is
within the duty to bargain as it is consistent with the statutory and
regulatory provisions that supervisors meet with employees in developing
performance standards. We find the third sentence nonnegotiable because
it interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute.
Section 3.E. Accuracy. All performance standards and
applications of the standards to the individual's work shall
permit the accurate evaluation of job performance to the maximum
extent feasible as required by 5 U.S.C. 4302(b)(1).
Performance standards must be fair, equitable, and reasonable
to permit the accurate evaluation of job performance. (Only the
underscored sentence is in dispute.)
According to the Agency, the proposal would subject the content of
performance standards to arbitral review. Thus, the Agency concludes
that it violates management's right to assign work and direct employees
under section 7106(a)(2)(A) and (B) of the Statute.
The Union contends that the underscored portion of Proposal 2 is
intended to clarify the meaning of the accuracy requirement for
performance standards in 5 U.S.C. Section 4302(b)(1). The Union denies
that the proposal would subject the content of performance standards to
arbitral review.
We find that the disputed portion of Proposal 2 concerns the content
of performance standards. This conclusion is supported by the Unon's
statement that "(c)ontractual provisions which prevent only unfairness
in the application of performance standards are inadequate to prevent
management abuse." Petition for Review at 3 and Reply Brief at 4.
Furthermore, the Union states that it believes that "the criteria of
fair, equitable and reasonable are necessary elements of any standard
that will promote the accurate evaluation of job performance." Id. In
view of its statements, the Union's assertion that under this proposal
the content of a performance standard would not be subjected to arbitral
review is unconvincing.
Therefore, we conclude that Proposal 2 is nonnegotiable because it
constitutes general criteria governing the content of a performance
standard. Moreover, enforcement of a general, substantive criterion
would permit arbitrators to substitute their judgment as to the content
of performance standards which management should adopt. Patent Office
Professional Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384, 386-87, 395-96 (1987) (Proposal Section 3.K.),
petition for review filed sub nom. Patent Office Professional
Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987). See also
American Federation of Government Employees, AFL-CIO, Local 1603 and
U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA 567 (1986)
(proposal which permitted arbitrators to determine whether performance
standards were fair and reasonable held nonnegotiable). Based on the
cases and reasoning above, we hold that Proposal 2 interferes with
management's right to determine the content of performance standards,
and thus its right to assign work and direct employees. Proposal 2 is,
therefore, outside the duty to bargain.
Section 3.I. After the validation described in the immediately
preceding subsection H. have been completed, management shall
publish in the Official Gazette the proposed performance appraisal
plans and a POPA analysis thereof. (Only the underscored portion
is in dispute.)
The Agency's sole contention concerning the disputed portion of
Proposal 3 is that it does not concern conditions of employment within
the bargaining unit under section 7103(a)(14) of the Statute. Moreover,
according to the Agency, the Union's desire to inform the public about
employee performance matters is not within the duty to bargain.
The Union responds that the proposal is a condition of employment for
two reasons: (1) the Gazette is routinely used by the Agency to
distribute information important to unit employees; and (2) because the
Gazette is distributed to the Agency's clientele, "publication of the
performance appraisal plans can be used to enhance the prestige and
status, and hence job satisfaction, of our unit employees."
Proposal 3 would require that the Agency use the Official Gazette to
publish proposed performance plans and the Union's analysis of those
plans. Under the Statute, the obligation to bargain extends only to
matters directly affecting the conditions of employment of bargaining
unit employees.
The determination of whether a proposal pertains to a condition of
employment involves the application of two factors set forth by the
Authority in Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA 235 (1986). These factors are:
(1) Whether the matter proposed to be bargained pertains to
bargaining unit employees; and
(2) The nature and extent of the effect of the matter proposed
to be bargained on working conditions of those employees.
While the Patent Office's Official Gazette is used primarily to
communicate technical patent and trademark information to patent
practitioners, matters that are important to bargaining unit employees,
such as information relating to the operation of the Patent Office, also
have appeared in the publication. For example, a notice concerning
personnel reorganization and relocation was published in the Gazette.
It is not disputed that the Gazette is widely distributed at the
Patent Office and easily available to bargaining unit employees.
Agency's Statement of Position at 5. Therefore, we conclude that
including the Agency's proposed performance plans and the Union's
analysis of the plans in the Gazette would inform bargaining unit
employees about performance appraisal plans. See, for example,
Congressional Research Employees Association and Library of Congress,
Congressional Research Service, 25 FLRA 306, 316 (1987) (Proposals 3-5)
(proposal's indirect effect on nonunit employees does not render
proposal nonnegotiable where proposal directly affects bargaining unit
employees); American Federation of Government Employees, AFL-CIO, Local
1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24
FLRA 377, 384-86 (1986) (proposal's indirect effect on conditions of
employment outside the bargaining unit does not render otherwise
negotiable proposals nonnegotiable).
Bargaining Unit Employees
The Agency's sole argument is that the proposal does not concern
conditions of employment of bargaining unit employees. According to
management, other means of communication, such as "All Employee"
memorandum and bulletins, exist to inform employees about matters of
concern. However, it is clear that the development of performance
appraisal plans directly affects the employment relationship of
bargaining unit employees. Moreover, communication of performance plans
is critical to performance appraisal systems. See, 5 U.S.C. Section
4302(b)(2) (requiring that performance appraisal systems provide for
communication of the performance standards and the critical elements of
the employee's position to the employee). Thus, rejecting the Agency's
argument, we conclude that use of the Official Gazette to inform
bargaining unit employees about proposed performance plans and the
Union's analysis of the plans directly affects a condition of employment
of these employees.
In conclusion, we find that publication of the Agency's proposed
performance plans and the Union's comments on the plans is within the
duty to bargain because it directly affects the employment relationship
of bargaining unit employees.
Section 5.A. The performance standards of patentability
determination and action taking are described from the perspective
of an examiner having full signatory authority. Examiners not
having full signatory authroity will be evaluated under these
standards only to the extent appropriate to their level of
responsibility under the Patent Examiner Position Classification
factors 1 and 2.
According to the Agency, by including the current standard in its
proposal, the Union is effectively seeking to negotiate over the content
of performance standards. The Agency contends that the proposal's
second sentence restricts management's discretion to establish
performance standards by equating the evaluation of examiners to the
levels described in the controlling position classification standard.
The Union asserts that the first sentence of the proposal merely
reflects current Agency practice in describing performance standards
from the perspective of an examiner with signatory authority. The
second sentence, the Union contends, does not concern the content of
performance standards. Rather, it involves the application of the
patent examiner performance standard when it is used to evaluate
employees below the full performance level in a career ladder.
It is well established that proposals establishing a general,
nonquantitative requirement by which management's application of its
performance standards can be judged in a subsequent grievance proceeding
are within the bargaining obligation. On the other hand, proposals
which establish general criteria governing the content of a performance
standard restricts management's authority to establish standards and are
therefore inconsistent with its right to assign work and direct
employees under section 7106(a)(2)(A) and (B) of the Statute. Patent
and Trademark Office, 25 FLRA 384, 385-86 (1987).
We find that the first sentence in Proposal 4 seeks to negotiate the
content of performance standards. /1/
Specifically, it relates to the perspective from which the
performance standards for patent examiners are described. Assuming that
the first sentence accords with the Agency's current practice in
describing patent examiners' performance standards, the presence of that
sentence in a negotiated agreement would oblige management to negotiate
over any revision to the standards which conflicts with the sentence.
Despite the Union's argument to the contrary, the first sentence
interferes with management's right to establish and revise performance
standards, since the exercise of the right must necessarily include the
power to modify or discontinue the current practice. See, Patent and
Trademark Office at 402-03 (Proposals Sections 4.H. and 4.I.). See also
National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981)
(Proposals I-III).
According to the first sentence in Section 5.A., the patent
determinability performance standards are written from the perspective
of patent examiners with full signatory authority. When applying these
standards to patent examiners with less than full signatory authority,
the second sentence of Section 5.A. would requuire that management
consider the lesser degree of expertise, independence, and
responsibility of these examiners. In this respect, the second sentence
of Section 5.A. is to the same effect as the proposal in Section 9.B. in
Patent and Trademark Office at 408-09. Section 9.B. in that case
provided that where the agency assigned a patent examiner an application
with which that examiner was unfamiliar, management was required to
adjust the production goal which it would normally establish for the
application.
In Patent and Trademark Office, we found that the proposal required
management to change the production goal which it had established for
the type of work involved and adopt a different standard. Thus, we
concluded that Section 9.B. in that case was outside the duty to bargain
because it mandated the content of a performance standard and thus
interfered with management's rights to direct employees and assign work.
Like the proposal in Section 9.B. in Patent and Trademark Office,
Proposal 3 in this case interferes with management's rights because it
would require that the Agency alter performance standards of
patentability determination and action taking for patent examiners
having less than full signatory authority.
In summary, we find that both sentences in Proposal 4 conflict with
reserved rights to assign work and direct employees under section
7106(a)(2)(A) and (B) of the Statute by interfering with management's
right to establish performance standards. Consequently, Proposal 4 is
outside the duty to bargain.
Section 5.C. The following procedure will be used to evaluate
for promotion examiners who are at grades GS-12 and below:
1. Determine whether the examiner has made a patentability
determination error or action taking error.
2. Determine the action and the examining function that was
the cause of the error.
3. Determine the degree to which the examiner would be
responsible for that function after promotion under the Position
Classification factors. The examiner would be fully responsible
only if the examiner, at his or her current grade, receives no
preliminary instruction and only cursory review for the action or
function that was the cause of the error. The examiner would be
responsible for a partial error if the examiner, at his or her
current grade, receives no preliminary instruction and close
review for the action or function that was the cause of the error.
4. An error point total less than the number of full errors
required to rate a full signatory examiner as marginal shall be
prima facie evidence that the career ladder promotion is
warranted.
(Only the underscored sentences are in dispute.)
The Agency contends that the "partial error" concept in Proposal 5
substantively interferes with its right to establish performance
standards. Hence, the proposal violates rights reserved to management
by section 7106(a)(2)(A) and (B) of the Statute.
The Union asserts that the Agency has misread the proposal.
According to the Union, the proposal establishes criteria to be used
solely in assessing employees' promotion potential and does not affect
any performance standard. The proposal would require that management
examine an employee's first submission of completed work to generate
evidence of an ability to perform at the next higher level.
Contrary to the Agency's contention, we find that the proposal does
not concern performance standards. Rather, Section 5.C.3. in Proposal 5
establishes a criterion for determining the degree of responsibility for
errors which would be used in evaluating patent examiners, who are below
the full performance level, for promotion. Viewed in light of the
Union's explanation, which is consistent with the proposal's language,
we conclude that Proposal 5 is to the same effect as Proposal 2 in
National Treasury Employees and NTEU Chapter 72 and Internal Revenue
Service, Austin Service Center, 11 FLRA 271, 273 (1983) (Proposal 2),
which sought to establish a level of productivity for use in evaluating
an employee's potential for promotion to the next higher grade in a
career ladder position. In finding Proposal 2 to be within the duty to
bargain, the Authority found that existing law did not prevent the
development of criteria for assessing promotion potential apart from the
performance evaluation criteria. The Authority concluded that the
proposal did not infringe on the rights to direct employees and assign
work because the criterion established in Proposal 2 in Austin Service
Center merely served as a guideline for predicting employee performance
at the higher grade level rather than as a standard of productivity for
the current level.
Similarly, we find that Proposal 5 is a procedure to be used in
evaluating whether an employee would be able to perform at a higher
grade level. Based on the reasons and cases cited in Austin Service
Center, Proposal 5, which would also establish a criterion for
determining promotion potential, is within the duty to bargain.
Section 16.A. General. After an employee has completed his
probationary year, performance-based disciplinary actions shall
not be based on short term performance periods. A performance
period is short term unless the performance is averaged over a
period of at least twelve consecutive months. (Only the
underscored sentence is in dispute.)
The Agency contends that Proposal 6 interferes with management's
right to assign work and direct employees by requiring that an
employee's performance be averaged for twelve months before management
may take an action. The Agency argues that averaging performance
prevents management from taking performance-based actions by enabling an
employee to work voluntary overtime for a period of time to improve
overall performance to an acceptable level.
The Union characterizes its proposal as a procedure to be followed by
management in exercising its rights to discipline, direct, and assign
work to employees. According to the Union, the time frame in the
proposal would permit more accurate assessment of performance.
We find this proposal nonnegotiable, but not for the reasons asserted
by the Agency. Proposal 6 would in effect, prevent management from
taking disciplinary action against an employee based on unacceptable
performance unless it could be established that the employee's
performance, over a period of at least 12 months prior to the decision
to take disciplinary action was, on average, unacceptable.
Regulations governing actions for unacceptable performance permits
agencies to take performance-based adverse actions "at any time during
the performance cycle that the employee's performance in one or more
critical elements of the job becomes unacceptable." 5 C.F.R. Section
432.203(a). Thus, action may be taken whenever performance falls to an
unacceptable level without assessing an employee's "average" performance
over a particular period of time. As these regulations apply to the
Federal workforce as a whole, they are Government-wide regulations
within the meaning of section 7117(a)(1) of the Statute. See National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 751-55 (1980). Since Proposal 6 would
require that management "average" an employee's performance over a year,
it conflicts with a controlling Government-wide regulation.
Consequently, Proposal 6 is outside the duty to bargain under section
7117(a)(1) of the Statute based on the reasons and cases discussed
above. In view of our decision finding Proposal 6 nonnegotiable, it is
unnecessary to reach the Agency's contention that the proposal violates
management's right to assign work and direct employees.
Section 16.D. Warning. A written notice of opportunity to
improve must be given to an employee before the employee can be
rated either marginal or unacceptable . . . .
The written notice must contain the following: . . . .
3. A specified improvement period during which the employee's
performance should improve. The specified improvement period will
be seven pay periods unless the employee and his supervisor agree
on a different specified improvement period of at least three pay
periods. (Only the underscored portion is in dispute.)
A. Positions of the Parties
The restriction on the length of the opportunity period imposed by
Proposal 7, according to the Agency, interferes with management's
section 7106(a)(1) right to "retain" employees. The Agency specifically
cites a situation in which an employee's project requires more than 7
pay periods to complete. If an evaluation were required before the
project's completion, the Agency claims that management would not have
afforded an employee a reasonable opportunity to demonstrate acceptable
performance.
The Union contends that Proposal 7 is intended to address a common
employee complaint that opportunity periods are too short. Furthermore,
the Union adds that because a reasonable opportunity to improve is a
substantive employee right, management could not unreasonably withhold
its agreement if an employee desired an opportunity period longer than 7
weeks.
Initially, we note that both parties treat this proposal as
applicable only to actions pursued under 5 U.S.C. Section 4303, and not
to performance-based actions taken under 5 U.S.C. Section 7512. An
action against an employee for unsatisfactory performance may be taken
at any point in the appraisal cycle following an evaluation of an
employee's performance. See 5 C.F.R. Section 432.203(a). However,
before management may initiate a performance-based action against an
employee for unsatisfactory performance, management must first provide
the employee with reasonable time to demonstrate acceptable performance.
5 U.S.C. Section 4302(b)(6) (Supp. II); 5 C.F.R. Section 432.101(a).
The length of the "reasonable time" to demonstrate acceptable
performance is not established by regulation but is left to agency
discretion. In fact, OPM has indicated that the length of period of
time considered reasonable may be negotiated. See Attachment to FPM
Letter 432-1, III.10. at 3 (May 5, 1983).
In this case, Proposal 7 would require the Agency to notify an
employee when an employee's performance has been determined to be
marginal or unacceptable and to provide the employee with at least 3 pay
periods and as many as 7 pay periods to improve performance before a
marginal or unacceptable rating is given. We do not construe Proposal 7
as requiring the Agency to agree to an opportunity period longer than 7
pay periods.
As previously set forth, the Agency's sole objection to this proposal
concerns the length of the improvement period. However, the length of
the improvement period for an employee to demonstrate acceptable
performance before a performance-based adverse action may be instituted
for unsatisfactory performance is clearly subject to negotation. Thus,
the Agency's claim that this proposal interferes with its right under
section 7106(a)(1) to retain employees cannot be sustained. See
National Federation of Federal Employees, Local 1853 and U.S. Attorney's
Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA No. 10,
slip op. at 8-12 (1987) (Provision 4).
In addition, we do not view the extension of the negotiated
improvement period to cover employees whose performance was determined
to be marginal, as being fatal to the negotiability of Proposal 7.
While applicable law and regulation only require an improvement period
for employees whose performance is unsatisfactory, there is nothing in
law or regulation which precludes an improvement period for employees
whose performance is marginal.
While this proposal applies solely to actions under 5 U.S.C. Section
4303, as we noted above, an agency is not required to use this procedure
exclusively. Instead, the agency may choose to take a performance-based
action under 5 U.S.C. Section 7512. Lovshin v. Department of Navy, 767
F.2d 826 (Red. Cir. 1985), cert. denied 106 S. Ct. 1523 (1985),
rehearing denied 106 S. Ct. 2931 (1985). The Merit Systems Protection
Board (MSPB) has stated that under Chapter 75 there is no express
provision that requires an agency to afford an employee a period of time
to improve performance before management effects a performance-based
action. MSPB declined to provide a right not enacted by Congress.
Fairall v. Veterans Administration, 34 MSPR 289 (1987).
In conclusion, we find that Proposal 7 is within the duty to bargain
as the Agency has discretion to determine the length of the opportunity
period to improve performance.
IX. Proposal 8
Section 16.E.2. If an employee is to be reduced in grade, the
reduction shall be to the highest level for which the employee
would be considered minimally acceptable. If the alleged
unacceptable performance is in the quantitative area, the demotion
will be to the fifth step of the highest grade in which the
quantitative performance would be considered acceptable unless the
change is to a position of a type in which the employee formerly
rendered satisfactory service in which case he will be paid the
rate he would have received had his service in the lower grade
been continuous. (Only the underscored sentence is in dispute.)
The Agency contends that an integral part of its right to direct
employees is to establish a system of rewards and sanctions for employee
performance. According to the Agency, Proposal 8 would limit the
financial impact of performance-based demotions and therefore would
interfere with underlying management rights. Moreover, the Agency
asserts that in certain circumstances, an employee demoted to the fifth
step of the highest grade in which the quantitative performance would be
considered acceptable could actually receive a higher rate of pay after
the demotion.
The Union asserts that Proposal 8 is intended to implement the
Agency's regulation regarding demotions for unacceptable performance and
as an appropriate arrangement for employees adversely affected by
management's right to impose discipline. According to the Union, a
situation could not arise under the bargaining unit's professional grade
structure in which an employee would profit from a demotion.
Proposal 8, in effect, would limit the penalty the Agency may impose
when an employee is demoted for unacceptable performance by requiring
that a demotion be to the fifth step of the highest grade in which the
quantitative performance would be considered acceptable. In this
regard, Proposal 8 is similar in effect to section 1(a) of Provision 22
in International Plate Printers, Die Stampers and Engravers Union of
North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau
of Engraving and Printing, Washington, D.C., 25 FLRA 113, 129-34 (1987)
(Provisions 22 and 23). In that case, section 1(a) of Provision 22
limited the Agency to the use of formal disciplinary measures -- such as
official reprimands, suspensions, and removals -- only for "more serious
offenses" or when informal disciplinary actions had not been effective.
We found that the proposal substantively limited the agency's discretion
to impose discipline and thus that it directly interfered with the
agency's right to discipline employees. Id. at 132.
Similarly, Proposal 8 in this case would eliminate the Agency's
discretion to decide the appropriate grade for an employee whose
performance was unacceptable. Therefore, Proposal 8 directly interferes
with management's right to take action for unacceptable performance.
See also American Federation of Government Employees, AFL-CIO, Local
2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19
FLRA 778 (1985) (Proposal 1).
The Union's position that its proposal is a negotiable appropriate
arrangement for employees adversely affected by a performance-based
action within the meaning of section 7106(b)(3) of the Statute cannot be
sustained. Recently, we considered a provision in American Federation
of Government Employees, AFL-CIO, National Immigration and
Naturalization Service Council and U.S. Immigration and Naturalization
Service, 27 FLRA 467, 480-82 (1987) (Provision 6) in which a union also
argued that a restriction on management's right to take action for
unacceptable performance was an appropriate arrangement. Provision 6 in
U.S. Immigration and Naturalization Service required an agency to
reassign employees whose performance was unacceptable to positions at
the same grade level. Relying on National Labor Relations Board Union
and National Labor Relations Board, Office of the General Counsel, 18
FLRA 320 (1985), we found that the provision directly interfered with
management's right to determine its course of action when it determined
that an employee's performance was unacceptable. Thus, we held that the
provision in that case was not a negotiable procedure under section
7106(b)(2). Additionally, we found that the provision was not an
appropriate arrangement because, in addition to restricting management's
actions in response to unacceptable performance, it also prevented
management from determining whether to fill vacancies. We concluded
that Provision 6 in U.S. Immigration and Naturalization Service,
excessively interfered with management's rights and held it outside the
duty to bargain under section 7106(a)(2)(A).
In a similar manner, Proposal 8 in this case would restrict the
Agency's discretion to determine an appropriate reduction in grade when
an employee's performance is unacceptable. Furthermore, as we read
Proposal 8, in order to effect a reduction in grade, the Agency would be
required to relinquish its discretion to determine whether to fill the
vacancy that would be appropriate under the proposal. We conclude that
the negative effect of these restrictions on the Agency, particularly
its inability to determine an appropriate reduction in grade, outweigh
the benefit to employees from a limitation on the penalty for
unsatisfactory performance. Thus, Proposal 8 excessively interferes
with management's right to impose discipline under section
7106(a)(2)(A). Therefore, it is not a negotiable appropriate
arrangement within the meaning of section 7106(b)(3).
Section 16.F.2. Overcoming the warning effect of a marginal or
unacceptable rating. Even if an employee's most recent annual
performance rating was marginal or unacceptable, the employee will
be entitled to his within grade increase at the end of the waiting
period if either (1) his average performance over the waiting
period is at least satisfactory and his current performance is at
least marginal or (2) the performance was justified by unusual
circumstances. Current performance is performance over the most
recent six month period. Unusual circumstances are synonymous
with extenuating circumstances which may be either job related
circumstances or temporary personal circumstances such as an
illness, a death in the family or marital problems. (Only the
underscored sentences are in dispute.)
The Agency contends that the proposal requires bargaining over the
quality of performance required to attain an acceptable level of
competence, which is a matter excluded from the bargaining table by
Authority decisions. The Agency also asserts that the part of the
proposal granting an employee a within-grade increase because of
extenuating circumstances is contrary to Government-wide regulations.
The Union states that the proposal seeks to implement the
Government-wide regulation defining an acceptable level of competence.
The Union asserts that "satisfactory" as used in the proposal is
intended to be synonymous with acceptable level of competence. Also,
the Union declares that "marginal" is intended to mean a level of
performance which is acceptable in all critical elements.
Both parties expressly acknowledge that regulations governing
within-grade increases are Government-wide within the meaning of section
7117(a)(1) of the Statute, and the Authority has so held. National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 754 (1980).
The regulations applicable in this case, require that an employee
attain a summary overall rating of "fully successful" in order to be
eligible for the within-grade increase. 5 C.F.R. Section 531.404(a)
(1987). The regulations fully support the Union's suggestion that
"satisfactory" as used in the proposal may be equated with the
regulatory term "fully successful." However, there is no evidence that
"marginal" is susceptible to the same interpretation. In the context of
the proposal, "marginal" may reasonably be construed as meaning
something other than "satisfactory" because the words both appear in the
same sentence and therefore convey the impression that the two words
have different meanings.
In the absence of convincing evidence to the contrary, we must
conclude that "marginal" is intended to convey its ordinary and
customary meaning. The definition in The American Heritage Dictionary
of the English Language, New College Edition, (1981) most relevant in
the context of the Union proposal, defines "marginal" as: "Barely
within a lower standard or limit of quality." Hence, "marginal" cannot
reasonably be equated with "fully successful." The proposal is therefore
in conflict with the regulatory requirement that eligibility for a
within-grade increase be based on a summary rating of "fully
successful."
The proposal's demand that performance requirements be waived in
"unusual circumstances" also conflicts with governing regulations. The
Union contends that this matter is addressed in the proposal because the
regulation uses the term "unusual circumstances" without further
elaboration. To avoid uncertainty, the Union included a definition of
that term in its proposal. However, the current regulations do not
include such a term. Consequently, we conclude that eligibility for a
within-grade increase must be based exclusively on performance.
Rights
Proposal 9 is materially to the same effect as the proposal in
Section 9.H. in Patent and Trademark Office, 25 FLRA 384, 414-15 (1987)
(Proposal Section 9.H.). That proposal established a level of
performance, specifically 75 percent of the assigned production goal, at
which management was required to grant a within grade increase, absent
justification that level of productivity was insufficient. We found
that by restricting management's discretion to determine the level of
performance sufficient for a within-grade increase, the proposal in
Section 9.H. directly interfered with management's rights to direct
employees and assign work and was outside the duty to bargain.
Similarly, the proposal in this case would define a performance which
is currently marginal as an acceptable level of competence for a
within-grade increase. Therefore, based on Patent and Trademark Office,
and the cases relied on therein, we conclude that Proposal 9 violates
management's right to establish performance standards and thus its right
to direct employees and assign work. See also American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 14 FLRA 6, 12 (1984) (Proposal 6),
enforced as to other matters sub nom. FLRA v. Office of Personnel
Management, 778 F.2d 844 (D.C. Cir. 1985).
In summary, Proposal 9, in requiring negotiation over the level of
performance necessary for a within-grade salary increase violates
Government-wide regulations and is inconsistent with management's rights
to direct employees and assign work. Consequently, it is nonnegotiable.
Section 16.F.3. Negative determination. A negative
determination that an employees's performance is not at an
acceptable level of competence shall be given to the employee in
writing before the Personnel Office is notified of the negative
determination. Failure to provide the written negative
determination prior to the end of the month after the waiting
period shall be conclusive evidence of an acceptable level of
competence . . . .
The Agency contends that the first sentence in Proposal 10 concerning
the process of making a negative determination violates its right to
assign work and a controlling Government-wide regulation. Also,
according to the Agency, the second sentence of the proposal dealing
with the effect of an untimely negative determination violates its
rights to direct employees and assign work as well as conflicting with a
pertinent Government-wide regulation.
The Union asserts that the first sentence in Proposal 10 establishes
a procedure enabling an affected employee to contact the personnel
officer prior to a final negative determination. The second sentence,
the Union contends, is an appropriate arrangement for employees
adversely affected by management's failure to act.
We disagree with the Agency that the first sentence in Section
16.F.3. would effectively reassign authority, which currently resides
with the personnel officer, for making negative determinations. On its
face, this sentence is not concerned with designating the official who
will make that decision. Rather, it would require that if an appraising
official is recommending a negative determination, that official give it
to the employee in writing before forwarding it to the Personnel Office.
In that regard, however, the proposal conflicts with Government-wide
regulations on performance appraisals which require that "(r)atings of
record may not be communicated to employees prior to approval by the
final reviewer." 5 C.F.R. Section 430.206(c). Therefore, the first
sentence of the proposal is outside the duty to bargain as it is
inconsistent with a Government-wide regulation.
The second sentence, providing that failure to furnish written notice
of a negative determination within the prescribed time limit will be
conclusive evidence of an acceptable level of competence, is also
inconsistent with Government-wide regulations. Those regulations
provide that "(f)ailure to inform an employee of a negative
determination may not be the basis for changing it." FPM chapter 531,
subchapter 4-9.c.(2). Additionally, the regulations state that:
When a determination by an agency is not made on a timely basis
through administrative oversight, error, or delay, the
determination when made shall be based on the employee's
performance during the period that would have been covered had the
determination been timely made; and it is considered to have been
made as of the date it would have been made were it not for the
administrative oversight, error, or delay. FPM chapter 531,
subchapter 4-9.h.
Consequently, we find that the second sentence in Proposal 10, which
would convert a negative determination into a finding of acceptable
level of competence if the concerned employee is not timely notified of
the adverse evaluation, is contrary to a Government-wide regulation.
The parties raise additional arguments. Specifically, the Union
contends that the second sentence in Section 16.F.3. is an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the Statute;
and the Agency argues that it violates its rights to assign work and
direct employees. In view of our finding that the second part of the
proposal conflicts with a Government-wide regulation, it is unnecessary
to address these arguments. In conclusion, Proposal 10 conflicts with
Government-wide regulations and consequently is outside the duty to
bargain under section 7117(a)(1) of the Statute.
Section 16.F.4. After denial of within grade increase. If an
employee has been denied a within grade increase, he shall be
granted a within grade increase as soon thereafter as he has
sustained performance at an acceptable level of competence.
Performance at or above the satisfactory level for six months is
sufficiently sustained performance to warrant the grant of a
within grade increase. (Only the underscored sentence is in
dispute.)
The Agency characterizes the proposal as requiring negotiation over
the level of performance necessary to earn a within-grade increase. The
proposal therefore seeks to bargain over management's rights under
section 7106(a)(2)(A) and (B) to direct employees and assign work.
According to the Union, the principal thrust of the proposal is to
establish the time period in which performance must be at the acceptable
level of competence in order to earn a within-grade increase subsequent
to a negative determination. According to the Union, the proposal does
not require bargaining over the quality of performance which will earn
an acceptable level of competence rating.
As discussed in Proposal 9 in this case, the Union stated that
"satisfactory" is intended to be synonymous with the phrase an
"acceptable level of competence." We agree with the Union that the
proposal does not concern the level of performance necessary to earn a
within-grade increase. Rather, the proposal is concerned with the
length of time during which performance amounting to an acceptable level
of competence must be maintained to overcome a prior denial of a
within-grade increase.
The Agency does not contend that the time period established by the
proposal is nonnegotiable either as an infringement on management rights
or as a violation of Government-wide regulations. In fact, the
controlling Government-wide regulation provides, in part:
When a within-grade increase has been withheld, an agency may,
at any time thereafter, prepare a new rating of record for the
employee and grant the within-grade increase when it determines
that he or she has demonstrated sustained performance at an
acceptable level of competence. 5 C.F.R. Section 531.411.
Thus, the regulation allows the Agency discretion to determine the
length of the performance period before management reevaluates an
employee who was previously denied a within-grade increase. To the
extent that an Agency has discretion respecting a matter sought to be
bargained affecting conditions of employment within a bargaining unit --
and there is no argument that the proposal does not concern conditions
of employment -- and where the grant of discretion is not sole and
exclusive, the matter is within the duty to bargain. National Treasury
Employees Union, Chapter 6 and Internal Revenue Service, New Orleans
District, 3 FLRA 748, 759-62 (1980). Therefore, we hold that Proposal
11 is negotiable.
The Authority Members have expressed different views concerning
Proposal 12. The decision and order on this proposal and Chairman
Calhoun's concurring opinion on Proposal 12 immediately follow this
decision.
Section 17. Evidence. If, during the five-year period prior
to a proposed disciplinary action, the employee has neither been
denied a within-grade increase nor received an overall performance
rating of less than satisfactory, and the performance standards
have not changed, this shall constitute evidence that the
supervisor's application of the performance standards has changed.
Unless successfully rebutted, no disciplinary action will be
taken and the employee will be given one opportunity to transfer
with his or her art to another supervisor. (Only the underscored
sentence is in dispute.)
The Agency contends that the underscored part of the proposal would
subject performance standards to substantive review. Furthermore, in
allowing an employee to transfer on his or her own initiative to another
supervisor, the Agency claims it would interfere with management's right
to assign work.
The Union responds that the proposal is not concerned with the
substance of performance standards but, rather, with their application.
That part of the proposal giving certain employees the right to transfer
to another supervisor is described by the Union as an appropriate
arrangement for employees adversely affected by the exercise of
management's right to review performance.
The underscored portion of Proposal 13 would permit an employee who
prevails in a grievance over the application of performance standards to
transfer to another supervisor at the employee's option. According to
the Agency, permitting an employee the option of transferring with his
or her narrow technical expertise in the Agency's highly specialized
organization could result in oversight by a supervisor who lacks the
requisite skill to supervise the employee. Consequently, the Agency
asserts, "the quality of the supervision the supervisor would be able to
render could be compromised, thus interfering with the mission of the
Agency." Statement of Position at 16. Even absent these considerations,
the Agency asserts that the proposal violates its right to assign.
The Authority has consistently held that proposals compelling the
selection of a specific individual for reassignment are outside the duty
to bargain. In American Federation of Government Employees, AFL-CIO,
Council 214 and Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 8 FLRA 425
(1982), part 2 of Proposal 1-3 required that, in certain circumstances,
the reassignment of an employee to a vacant position be based on the
employee's preference. The Authority held that such a proposal was
inconsistent with management's right to assign pursuant to section
7106(a)(2)(A) of the Statute. See also Veterans Administration Medical
Center, Kerrville, Texas and American Federation of Government
Employees, Local 2281, 18 FLRA 416 (1985).
As the underscored portion of Proposal 13 is to the same effect as
the cited proposal in Wright-Patterson Air Force Base, we find that it
directly interferes with management's right to assign. The underscored
portion of the proposal operates after an employee has successfully
grieved. Thus, the employee has suffered no adverse affect. While the
Union argues that supervisor-employee friction may result from the
supervisor's appraisal being overturned, this argument is mere
speculation. Furthermore, protection from such reprisal is available
under the Statute. Thus, since the protection sought is not for an
adversely affected employee, we conclude that the underscored portion of
Proposal 13 is not a negotiable appropriate arrangement. National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24, 31 (1986). Therefore, the underscored
portion of Proposal 13 interferes with management's rights to direct
employees and assign work and is outside the duty to bargain.
Section 20.E. Management will take appropriate measures to
insure that the 35 USC 122 waiver process will be separate from
the Office's preparation of grievance/arbitration case, so that
the employee in the Solictor's Office who is assigned to deal with
the 35 USC 122 question will make no disclosure for the purpose of
helping management to assert its positions in the grievant's case.
(Only the underscored portion is in dispute.)
The Agency contends that the underscored part of the proposal, by
stipulating which office will assume responsibility for granting
waivers, interferes with its rights to assign work and determine the
personnel by which its operations will be conducted. In effect, the
Agency states the proposal would require negotiation concerning which
office handles waivers.
The Union asserts that Proposal 14 is intended as an appropriate
arrangement for employees who must defend their examination of a patent
application in a performance-based action. Separating the waiver
process from grievance preparation, the Union argues, will prevent the
Agency from gaining access to expert witnesses prior to a hearing.
According to the Union, management will have an unfair advantage in a
grievance proceeding absent a separation of functions.
According to statute, patent applications must be kept confidential
unless disclosure is authorized by the applicant or patent owner or
"unless necessary to carry out the provisions of any Act of Congress or
in such special circumstances as may be determined by the Commissioner."
35 U.S.C. Section 122 (1982). Proposal 14 states that an employee in
the Solicitor's Office is assigned to process the waivers permitted by
statute. Although the Union apparently intended only to ensure a
separation of functions, we agree with the Agency that the proposal, as
written, requires negotiation concerning which office will handle waiver
requests. Thus, the proposal directly interferes with the Agency's
right under section 7106(a)(2)(B) to assign work and determine the
personnel by which its operations will be conducted. See American
Federation of State, County, and Municipal Employees, AFL-CIO, Local
2910 and Library of Congress, 11 FLRA 632 (1983) (Proposals 1 and 2)
(proposals which specifically or implicitly assigned certain
responsibilities to organization segments and/or agency employees held
violative of management's right to assign work); National Federation of
Federal Employees, Locals 1707, 1737 and 1708 and Headquarters,
Louisiana Air And Army National Guard, New Orleans, Louisiana, 9 FLRA
148 (1982) (proposal designating particular management officials to
represent the agency on rating and ranking panel held nonnegotiable as
it violated management's right to determine the personnel by which
agency operations shall be conducted).
The Union argues that the proposal is an appropriate arrangement for
employees who must defend their performance in handling patent
applications. Specifically, the Union states that the proposal will
prevent the waiver procedure from becoming a "one-way discovery process"
in which management would have "an opportunity to cross-examine expert
witnesses prior to a hearing, while the employee would have no such
right with respect to management's witnesses." Reply Brief at 18.
The nature and extent of the impact experienced by employees if the
waiver process is not separate from grievance preparation is unclear.
However, assuming that Proposal 14 would benefit employees by preventing
the waiver process from becoming a discovery method favorable to
management, we find that this benefit is outweighed by the infringement
on management's rights. In this instance, management would be
restricted in its ability to assign work and determine its personnel by
the proposal's requirement that the Agency negotiate concerning which
personnel will process waivers. Thus, we conclude that Proposal 14
excessively interferes with management's rights and is not a negotiable
appropriate arrangement. In conclusion, we hold that Proposal 14
directly interferes with the Agency's rights to assign work and
determine the personnel by which its operations will be conducted and is
outside the duty to bargain.
Proposals 2, 4, 6, 8, 9, 10, 13, 14 and the third sentence in
Proposal 1 are dismissed. The Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning the first
sentence in Proposal 1 and Proposals 3, 5, 7, and 11. /2/
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Section 16.G.2. If management fails to comply with any step in
the procedures of this section, management must repeat that step
properly before any more serious disciplinary action can be taken
against the employee.
According to the Agency, Proposal 12 is nonnegotiable because it
would require an arbitrator to overturn a performance-based adverse
action when management committed any type of error, regardless of
whether it was harmful to the employee's interests. In support, the
Agency cites the Supreme Court's holding in Cornelius v. Nutt, 472 U.S.
648 (1985).
The Union asserts that Proposal 12 provides a procedure to enforce
the requirements of Section 16, "Performance-Based Disciplinary
Actions," of the negotiated agreement. Further, the Union claims that
its proposal defines a harmful error.
Proposal 12 would prescribe a penalty to be imposed on the Agency if
it failed to follow the requirements in the parties' agreement regarding
performance-based disciplinary actions. In effect, the Agency could not
enforce more serious disciplinary action against an employee if
management had failed to follow the procedures in Section 16. The
actions defined in that section include oral wrarnings, written
warnings, and written notices of deficient performance, as well as
actions which may be appealed under 5 U.S.C. Section 4303 and 7512, such
as reassignments, demotions, and removals.
In Cornelius v. Nutt, the Supreme Court held that if a disciplinary
action taken under 5 U.S.C. Section 4303 or 7512 is grieved under a
negotiated grievance procedure, an arbitrator must apply the same
substantive standards, including the harmful error rule, that would be
applied if the matter had been appealed through the appellate procedures
of 5 U.S.C. Section 7701(c)(1). Cornelius v. Nutt at 660-61. Under 5
U.S.C. Section 7701(c)(1), an agency action must be sustained if
properly supported. The only grounds on which a properly supported
action may appropriately not be sustained are those enumerated in
section 7701(c)(2), which include harmful error. As discussed, under
Cornelius v. Nutt, arbitrators must apply the harmful error rule of
section 7701(c)(2). Id. Because Proposal 12 is not consistent with
section 7701(c)(2) in this regard, this proposal would result in
properly supported Agency actions not being sustained as required by 5
U.S.C. Section 7701(c)(1). Thus, to the extent that Proposal 12
includes matters appealable under 5 U.S.C. Sections 4303 and 7512, the
proposal is nonnegotiable as it would preclude an arbitrator from
applying the harmful error rule. See also American Federation of
Government Employees, AFL-CIO, Local 1458 and U.S. Department of
Justice, Office of the United States Attorney, Southern District of
Florida, 29 FLRA No. 1, slip op. at 14 (1987) (Provision 8).
While the harmful error rule is applicable to actions appealable
under 5 U.S.C. Sections 4303 and 7512, it does not apply to lesser
disciplinary actions, such as written and oral warnings, which are
included in Section 16 of the parties' agreement. See National
Federation of Federal Employees, Local 1853 and U.S. Attorney's Office,
Eastern District of New York, Brooklyn, N.Y., 29 FLRA No. 10, slip op.
at 3 (1987). At most, Proposal 12's requirement that management must
repeat a step if it fails to comply with contract procedures would
require a delay in an Agency disciplinary action not subject to the
harmful error rule. It is well established that a procedure which
delays but does not prevent management from acting at all is negotiable
under section 7106(b)(2) of the Statute. American Federation of
Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979),
enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
Cir. 1981), cert. denied sub nom., AFGE v FLRA, 445 U.S. 945 (1982).
Therefore, for disciplinary actions not appealable under sections 4302
and 7512, Proposal 12 constitutes a negotiable procedure.
In conclusion, to the extent that Proposal 12 would require an
arbitrator to disregard the harmful error rule when an action is grieved
which could have been pursued under 5 U.S.C. Sections 4303 or 7512, it
is nonnegotiable. However, for actions not appealable under 5 U.S.C.
Sections 4303 and 7512, Proposal 12 is within the duty to bargain.
Proposal 12, insofar as it concerns disciplinary actions appealable
under 5 U.S.C. Sections 4303 and 7512, is dismissed. The Agency shall
upon request, or as otherwise agreed to by the parties, bargain
concerning the part of Proposal 12 regarding disciplinary actions not
appealable under 5 U.S.C. Sections 4303 and 7512. /3/
Issued, Washington, D.C., November 6, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Proposal 12 concerns performance-based disciplinary actions. If the
Agency fails to comply with procedural requirements concerning those
actions, the proposal precludes the Agency from taking more serious
disciplinary action until the requirements have been satisfied.
My colleagues conclude that the proposal is nonnegotiable to the
extent that it applies to actions which are appealable under 5 U.S.C.
Sections 4303 and 7512. I agree with their conclusion for the reasons
given in their opinion. My colleagues also conclude that to the extent
that the proposal applies to lesser disciplinary actions, it is
negotiable because it does not prevent the Agency from "acting at all"
to exercise its rights. Although I agree that the proposal is
negotiable in the context of actions which are not appealable under 5
U.S.C. Sections 4303 and 7512, I reach this conclusion for reasons
different from my colleagues.
As I stated in my separate opinion in National Treasury Employees
Union and Department of the Treasury, 24 FLRA 494, 501 (1986), petition
for review filed sub nom. Department of the Treasury v. FLRA, No.
87-1084 (D.C. Cir. Feb. 13, 1987), I do not believe that the "acting at
all" test, in and of itself, should be dispositive of the negotiability
of proposals. Rather, I believe that the Authority should examine the
real effects of proposals on the exercise of management's rights. In
this case, Proposal 12 simply requires the Agency to comply with its
agreement with the Union concerning the procedures to be observed in
taking performance-based disciplinary actions. In this situation, any
delay in the exercise of the Agency's rights is attributable to
effectuation of those agreed-upon procedures. As such, I agree with my
colleagues that Proposal 12 does not interfere with the exercise of
management's rights. Rather, the proposal constitutes a procedure under
section 7106(b)(2) of the Statute.
Issued, Washington, D.C., November 6, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
(1) The first sentence of Section 5.A. appeared in Proposal Section 5
in Patent and Trademark Office at 404-05; however, the union did not
request a review of the negotiability of the sentence in that case.
(2) In finding these matters to be within the duty to bargain, we
make no judgment as to their respective merits.
(3) In finding this matter to be within the duty to bargain, we make
no judgment as to its merits.
29 FLRA NO. 115
Air Force Logistics Command, Robins AFB, Georgia and AFGE Council No.
214 (Cantor, Arbitrator), Case No. 0-AR-1388, (Decided November 3, 1987)
7122(c)(5)
7122(a)
ARBITRATION EXCEPTIONS, AWARD:
NONFACT, AWARD BASED ON
ARBITRATION REMEDIES
COMPENSATION AND OTHER MONEY RELATED MATTERS
BACKPAY
BACKPAY
PERFORMANCE OF DUTIES OF A HIGHER-GRADED POSITION
POSITION CLASSIFICATION
ARBITRATION AWARDS
The Authority denied the exceptions, concluding that the Agency had
failed to establish that the award was deficient on any grounds set
forth in the Statute. In so concluding the Authority cited precedent
wherein exceptions contending that an award of backpay as a result of an
extended detail to a higher-grade position was precluded by section
7121(c)(5), as concerning classification of a position, and was based on
a nonfact were denied. Further, the Authority found that the award is
not contrary to the parties, stipulation and such contention provides no
basis for finding the award deficient.
Case No. 0-AR-1388
AIR FORCE LOGISTICS COMMAND ROBINS AFB, GEORGIA
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFGE COUNCIL NO. 214
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Bernard H. Cantor 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. We deny the
exceptions.
A grievance was filed and submitted to arbitration concerning whether
the grievant, a GS-3, had been performing the duties of a GS-4 position
for an extended period of time and whether she was entitled under the
parties' collective bargaining agreement to have been temporarily
promoted beginning on July 31, 1985. The Arbitrator determined that the
grievant had performed the duties of a higher-grade position for an
extended period of time for which she was entitled under the terms of
the parties' collective bargaining agreement to have been temporarily
promoted beginning on the 31st day of the assignment. Accordingly, as
his award, the Arbitrator awarded her backpay in the amount of the
difference between her GS-3 pay and what she would have been paid as a
GS-4 for the period beginning on the 31st day of the assignment and
ending on the day she was reassigned.
The Agency contends in its exceptions that the Arbitrator's finding
that the grievant performed the duties of a GS-4 position is based on a
nonfact. The Agency also contends that the Arbitrator's finding is
contrary to the parties' stipulation that the grievant performed the
same duties as employees who were paid at the GS-4 level. The Agency
maintains that the duties performed by other employees who were paid at
the GS-4 level were really properly classified at the GS-3 level. The
Agency further contends that the award is contrary to the Statute
because the Arbitrator made a classification determination which is
precluded by section 7121(c)(5) of the Statute.
We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute: specifically, that the award is
contrary to any law, rule or regulation or that it is deficient on other
grounds similar to those applied by Federal courts in private sector
labor relations cases. See, for example, U.S. Department of Justice,
Immigration and Naturalization Service and National Immigration and
Naturalization Service Council, American Federation of Government
Employees, Local 2805, 15 FLRA 862 (1984) (exceptions contending that an
award of backpay as a result of an extended detail to a higher-grade
position was precluded by section 7121(c)(5), as concerning
classification of a position, and was based on a nonfact were denied).
In addition, we find that the award is not contrary to the parties'
stipulation and such contention provides no basis for finding the award
deficient.
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., November 3, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 114
AFGE and Edward Hanlon, Case No. 3-CO-60006, (Decided October 30,
1987)
7116(b)(1)
7116(c)
EMPLOYEE RIGHTS
FILE A CHARGE AGAINST A UNION
UNION INTERNAL BUSINESS
DISCIPLINE OF MEMBERS
UNION ULP (ALLEGED) 7116(b)(1)
DISCIPLINE OF A UNION MEMBER FOR FILING A ULP
THREATS
The issue in this unfair labor practice charge was whether the
Respondent Union violated section 7116(b)(1) of the Statute when it
proposed to discipline a member for filing unfair labor practice charges
against the Union. In its analysis the Authority recognized that under
section 7116(c) of the Statute a labor organization may discipline its
members pursuant to procedures contained in its constitution and bylaws
and that in most cases that discipline should not be reviewed by the
Authority. However, in the Authority's view, the Union's ability to
enforce discipline is not unlimited. The filing of an unfair labor
practice charge is a protected right of employees under section 7102 of
the Statute and a union may not threaten or discipline a member because
the member has filed such a charge. A union's right to discipline its
members must be consistent with provisions of the Statute. To threaten
to discipline a member for the exercise of a right a member has under
section 7102 is inconsistent with section 7102 and, therefore, beyond
the legitimate interests of a union to regulate its internal affairs.
The Authority thereafter reviewed the record evidence in the case and
found that the objective facts and circumstances surrounding the Union's
conduct supported the contention that the Respondent's conduct
constituted a threat against the Charging Party employee/member for
exercising the protected right under the Statute and that its conduct
went beyond the boundaries of permissible internal union discipline
under section 7116(c). In so concluding, the Authority rejected the
Administrative Law Judge's recommendation that the Authority expand and
apply NLRB private sector doctrine, reviewing relevant NLRB case law.
In conclusion, the Authority found that the Respondent violated section
7116(b)(1) of the Statute.
Case No. 3-CO-60006
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Respondent
EDWARD HANLON
Charging Party/Individual
The Administrative Law Judge issued the attached decision in this
case, finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint, and recommending that the complaint
be dismissed. The General Counsel and the Charging Party filed
exceptions to the Judge's decision and the Respondent filed an
opposition to the exceptions.
Until March 1985, Edward Hanlon was President of American Federation
of Government Employees (AFGE), Local 2782, the exclusive representative
of a unit of employees of the Bureau of Census. He was defeated in his
bid for reelection, and soon thereafter became active in an effort to
persuade bargaining unit employees to switch their allegiance to the
National Treasury Employees Union (NTEU).
The Respondent initiated an internal union disciplinary proceeding
against Hanlon. By letter of April 17, 1985, the Respondent's National
Vice-President, Donald MacIntyre, charged Hanlon with various alleged
acts of disloyalty in violation of the AFGE Constitution and informed
him that if the charges were sustained, he would be expelled from AFGE.
Between April 17 and October 31, 1985, Hanlon filed a number of
unfair labor practice charges against the Bureau of the Census (Census)
and the General Services Administration (GSA). The charges asserted the
right of employees to distribute pro-NTEU materials in buildings
occupied by Census and controlled by GSA. By letter of October 31,
1985, the Respondent amended the original charge of disloyalty to add
allegations concerning Hanlon's conduct after April 17. The letter set
forth a number of additional instances of assertedly pro-NTEU activity
by Hanlon, including his filing of the unfair labor practice charges
against Census and GSA. Specifically, the Union accused Hanlon of
misconduct as follows: "You have filed formal charges against the
Bureau of Census and the General Services Administration seeking an
opportunity to distribute NTEU organizing materials to employees
presently represented by AFGE Local 2782."
On November 20, 1985, Hanlon's attorney responded to the additional
allegation, specifically contending that Hanlon had a right to file the
unfair labor practice (ULP) charges against Census and GSA and that he
could not be prosecuted for exercising that right. At the internal
disciplinary hearing before the Respondent's Trial Committee, which
began on November 21, 1985, MacIntyre nevertheless pressed the
allegation against Hanlon for filing the charges. MacIntyre introduced
one of the unfair labor practice charges filed by Hanlon against Census
and GSA into the record and questioned him concerning the matter.
MacIntyre sought to extract an admission from Hanlon that the purpose of
the charge was to gain an opportunity to distribute NTEU materials.
During the first day of the proceeding, Hanlon presented MacIntyre with
a draft of an unfair labor practice charge against AFGE, reiterated his
position that he had a right to file the charges against Census and GSA,
and gave MacIntyre two weeks in which to withdraw the allegation
concerning the filing of those charges in the October 31 letter.
MacIntyre did not withdraw the allegation. Hanlon filed the charge
against the Respondent on December 9, 1985.
On January 8, 1986, MacIntyre filed a motion with the Trial Committee
asking that it strike the allegation concerning Hanlon's filing of the
charges against Census and GSA and that the Committee not consider the
related exhibits or testimony in reaching a decision. On January 21,
the Trial Committee granted MacIntyre's motion.
On February 19, the Trial Committee found that Hanlon had engaged in
"conduct detrimental or inimical to the best interest of this
Federation" and recommended that he be expelled, as mandated by AFGE's
constitution. On February 25, 1986, National President Kenneth T.
Blaylock "expelled" Hanlon from membership for 5 years. /1/
The Judge found that the only factual issue was whether the
Respondent's proposal to discipline Hanlon was based in part on his
having filed an unfair labor practice charge against Census and GSA.
The Judge found that the proposed discipline pre-dated by months the
unfair labor practice charge; that the Respondent's later reference to
Hanlon's filing of charges was the last of 12 allegations of disloyalty
against him; and that the cross-examination of Hanlon at the
disciplinary proceeding concerning that allegation was limited.
However, the Judge concluded that Hanlon's invocation of the unfair
labor practice processes of the Authority was a factor in the
disciplinary case against him.
The Judge identified the legal issue as whether a union may expel or
suspend a member who invokes the Authority's processes by filing an
unfair labor practice charge for the purpose of facilitating the
member's effort to displace it with another union. The Judge found that
because Hanlon sought to use the Authority's complaint processes to
provide a more effective means of communicating to unit employees a
message designed to end the Respondent's existence as a representative
of the employees, the Respondent was within its right under section
7116(c) of the Federal Service Labor-Management Relations Statute (the
Statute) to discipline Hanlon.
More specifically, the Judge noted private sector case law to the
effect that a union may expel a member for filing a decertification
petition because it represents an attack on the very existence of the
union, Tawas Tube Products, Inc., 151 NLRB 46 (1965). The Judge
reasoned that Hanlon's charge against Census and GSA was like a
decertification petition because it was an important element in his
attack on the Respondent and was intended to lead to replacement of the
Union as representative of the bargaining unit. The Judge therefore
recommended that the Tawas Tube decision be expanded and applied in this
case. Further, the Judge found that the Respondent's threat to expel
Hanlon from membership for filing the charge was a limited and
appropriate defensive measure. The Judge concluded that the Respondent
did not interfere unnecessarily with or coerce Hanlon in exercising his
right to file ULP charges or unlawfully threaten him. Rather, the Judge
concluded that the Respondent exercised its right under section 7116(c)
of the Statute to enforce discipline in a manner consistent with the
Statute. The Judge therefore determined that the Respondent did not
violate section 7116(b)(1) of the Statute, as alleged in the complaint,
and recommended that the Authority dismiss the complaint.
In its exceptions, the General Counsel contends that the Respondent's
threat of discipline against Hanlon because he filed unfair labor
practice charges constituted an unwarranted interference with Hanlon's
protected right under section 7102 of the Statute to file unfair labor
practice charges with the Authority and, therefore, a violation of
section 7116(b)(1) of the Statute. In support of its contention, the
General Counsel argues that the filing of unfair labor practice charges
is a protected right and that a union may not attempt to penalize a
member for exercising that right. The General Counsel further argues
that union members would be inhibited in filing charges with the
Authority if they could later be threatened with internal union
discipline for having done so.
In his exceptions, the Charging Party argues that if the Authority
were to adopt the rationale of the Judge, the Authority's unfair labor
practice process would be adversely affected, the ability of the General
Counsel to discover and prosecute unfair labor practices would be
impeded, and, employees would be uncertain as to which unfair labor
practice charges could result in union discipline and which could not.
Further, the Charging Party alleges that the unfair labor practice
charges he filed were against management and did not threaten the
existence of the Respondent.
In its opposition, the Respondent argues in support of the Judge's
rationale and decision. The Respondent argues that if a union member's
"treasonous activity" becomes protected activity by the filing of a ULP
charge, "a union would effectively be precluded from ever defending
itself from internal sabotage and acts of treason as long as the
member/saboteur simultaneously filed unfair labor practices alleging
that his activity was protected activity."
The issue in this case is whether the Respondent violated section
7116(b)(1) of the Statute when it proposed to discipline Hanlon for
filing unfair labor practice charges, as alleged in the complaint. We
find, contrary to the Judge, that the Respondent violated the Statute as
alleged.
We recognize that under section 7116(c) of the Statute, a labor
organization may discipline its members pursuant to procedures contained
in its constitution or bylaws. In most cases, that discipline is not
and should not be reviewed by the Authority. Contrary to the Union's
position, however, the Union's ability to enforce discipline is not
unlimited. Indeed, section 7116(c) itself recognizes that a union's
actions must be consistent with the Statute. Accordingly, the Union's
assertions that its actions were necessary to defend against "treasonous
activity" are not dispositive of this case. Rather, our inquiry here is
whether the proposal concerning Hanlon's filing of unfair labor practice
charges resulted in unlawful restraint, interference or coercion under
section 7116(b)(1) of the Statute. We do not here pass on any of the
other allegations of disloyalty contained in the Union's charges, nor
will we review the final Union action in relation to the other charges.
It is well established that the filing of unfair labor practice
charges is a protected right of employees under section 7102 of the
Statute and that a union may not threaten or discipline a member because
the member has filed unfair labor practice charges. National
Association of Government Employees, Local R5-66, 17 FLRA 796 (1985);
Overseas Education Association, 15 FLRA 488 (1984). Congress has
ensured in section 7102 that employees may exercise their rights under
that provision "freely and without fear of penalty or reprisal."
Congress further provided in section 7116(b)(1) that a union may not
interfere with, restrain or coerce an employee in the exercise of a
right under the Statute. While under section 7116(c) of the Statute a
union is not precluded from disciplining a member in accordance with the
procedures of its constitution or bylaws, it may do so only to the
extent that the discipline is consistent with provisions of the Statute.
/2/ To threaten to discipline a member for the exercise of a right the
member has under section 7102 is inconsistent with section 7102 and,
therefore, beyond the legitimate interests of a union to regulate its
internal affairs.
In this case, the Respondent initiated its disciplinary procedure
against Hanlon several months before he filed any unfair labor practice
charges. However, the Respondent amended its initial accusation against
Hanlon by specifically adding as a further allegation of misconduct his
filing of charges. Thus, the Respondent clearly proposed to discipline
Hanlon based in part on his exercise of his section 7102 right to file
charges with the Authority.
Moreover, the accusation of wrongdoing for filing unfair labor
practice charges was not inadvertent or merely an inartfully phrased
allegation, but, rather, an intentional and fully considered
specification in the disciplinary action case against Hanlon. Hanlon's
attorney objected to this additional allegation both prior to and during
the course of the disciplinary hearing, essentially contending that the
allegation constituted an illegal interference with Hanlon's right under
the Statute to file charges. Despite those objections and Hanlon's
expressed intent to file an unfair labor practice charge against the
Union unless the allegation was dropped, the Respondent's Vice President
continued to press the allegation and questioned Hanlon at length
concerning his filing activity at the disciplinary hearing. Only after
Hanlon filed the unfair labor practice charge against the Respondent
which led to the complaint in this case did the Respondent's
representative seek to strike the disputed allegation.
The Union claims that it was not Hanlon's filing of charges per se
which formed a basis for its disciplinary action against him, but,
rather, the disloyal conduct that was disclosed by the filing. The
Union asserts that its Vice President was not questioning Hanlon's right
to file charges, but was trying to show that Hanlon was filing charges
to facilitate his goal of ousting AFGE and replacing it with NTEU, an
act that allegedly was inconsistent with his membership in the Union.
However, we find that whatever the Union's subjective reasons or
motivation may have been for including Hanlon's filing of unfair labor
practice charges as a basis for the disciplinary action, such reasons or
motives are not controlling or significant in this case.
We are persuaded by the objective facts and circumstances surrounding
the Union's conduct as described above, principally: (1) the express
wording of the allegation against Hanlon clearly accusing him of
wrongdoing for filing unfair labor practice charges; (2) the
circumstances in which the allegation was made and aggressively pursued,
that is, an effort to discipline Hanlon in a formal proceeding and (3)
the circumstances that eventually led to the withdrawal of the disputed
allegation, that is, the Union did not withdraw the allegation until
after it was faced with an unfair labor practice charge of unlawfully
interfering with Hanlon's rights. Further, although the record
indicates that the Respondent's Trial Committee and National President
did not consider Hanlon's filing of unfair labor practice charges in
making a decision in this matter, his protected activity clearly formed
a basis for the proposed disciplinary action up to the time that the
Trial Committee acted.
In these circumstances, we find that the Respondent's conduct
constituted a threat against Hanlon for exercising a protected right
under the Statute and that its conduct went beyond the boundaries of
permissible internal union discipline under section 7116(c). We also
disagree with the Judge's conclusion that the Union's threat to expel
Hanlon for filing unfair labor practice charges was an appropriate
defensive measure under the Statute. In that regard, we reject the
Judge's recommendation that we expand and apply the NLRB's Tawas Tube
doctrine in the circumstances of this case.
The Tawas Tube doctrine provides that a union may expel a member for
filing a decertification petition because such a petition represents an
attack on the very existence of the union. The Judge reasoned that
Hanlon's unfair labor practice charges were like a decertification
petition because they were an important element in a direct attack on or
challenge to the Union's existence and also because they were possible
precursors of a representation petition designed to oust AFGE as
representative of the bargaining unit. The Judge, therefore, concluded
that Hanlon's filing of his ULP charges should be unprotected from the
Union's action under the Statute. We disagree.
As the Judge recognized, the policy in the private sector is that
individuals are to be completely free from restraint or coercion in
seeking relief from the National Labor Relations Board (NLRB or the
Board) through the filing of ULP charges. NLRB v. Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418
(1968). The right of individuals to file ULP charges is considered
indispensable to the administration of the National Labor Relations Act
(the Act) because the Board cannot initiate its own processes to prevent
and remedy unfair labor practices. Thus, any effort to discourage,
impede or defeat an individual's right of free access to the Board's ULP
processes is contrary to public policy and beyond the legitimate
interests of a labor organization. The Judge correctly noted that the
same policy and rationale apply in the Federal sector under the Statute.
He also appropriately observed that an employee who files a ULP charge
with the Authority has stepped beyond the internal affairs or legitimate
concerns of his or her union and into the public domain, where the
overriding public interest in ensuring free access to the Authority's
ULP processes controls.
Furthermore, as the Judge recognized, in the private sector the Tawas
Tube doctrine is strictly limited to decertification petition situations
and does not permit union discipline of members for filing ULP charges,
even where a charge reasonably may be interpreted as a threat to the
existence of the union. Cannery Workers Union (Van Camp Sea Food Co.),
159 NLRB 843 (1966).
In its Cannery Workers decision, the Board emphatically refused to
extend the Tawas Tube doctrine to the unfair labor practice charge
process. The Board held, in pertinent part:
Where a charge has been filed asserting infringement of
statutory rights in violation of Section 8 of the Act, such charge
relates to events which have already occurred and sets in motion
the Board's investigatory machinery to determine whether (1) the
charge is meritorious and warrants formal proceedings, including
an adversary hearing in which the issues are fully litigated, with
the matter ultimately adjudicated by the Board on the basis of the
record developed at the hearing, or (2) the charge lacks merit and
should be dismissed. In either case, the resolution of the matter
proceeds from an objective appraisal of fixed events preceding the
filing of the charge, and the determination is made by a public
agency, the Board, or, on appeal, the courts. At no stage of the
proceeding is there occasion for influencing or persuading
employees to support a particular disposition of the matter.
Neither their subjective views concerning the events involved in
the charge nor their solidarity with their fellow union members
can have any legitimate effect on the outcome. The Board here is
concerned not with their views, choices, or mutual support, but
the vindication of the public interest in securing obedience to
the statute. There is therefore, no justification for permitting
the public policy of the Act to be circumvented through the
imposition of disciplinary action against an employee for having
filed a charge with the Board. These considerations are
applicable to all charges filed under section 8 . . . .
159 NLRB 849.
The Board contrasted representation proceedings under section 9 of
the Act, such as decertification petition proceedings:
While proceedings under Section 9 of the Act are no less within
the public domain, there are significant differences. Here, the
Board is concerned with ascertaining the desires of the employees
. . . . The matter of union representation is resolved, not
through any appraisal by the Board of alleged past events, but
rather by the employees themselves . . . . The outcome here is
determined, not by past events already fixed, but by the
influencing of employee views for the future event of their
expression in the election. In the fluid rather than fixed
circumstances of a contest for support, the union and its
adherents can perform their legitimate function effectively only
if they are unified. To require them to tolerate an active
opponent within their ranks would undermine their collective
action and thereby tend to distort the results of the election.
To permit the union and its members to discipline the hostile
members is therefore not inconsistent with the purposes of the Act
and impinges on no legitimate interests of others as we decided in
Tawas Tube. On the other hand, for a union to penalize a member
for filing a charge directly infringes upon the proper
adminstration of the Act and therefore cannot be permitted . . . .
159 NLRB 849-50.
We find the rationale of the Board in Cannery Workers applicable and
persuasive in the circumstances of this case. Therefore, even assuming
that Hanlon's ULP charges reasonably may be construed as part of an
attack on the Union, we will not fashion and apply an expanded Tawas
Tube doctrine as recommended by the Judge, because "(t)here is . . . no
justification for permitting the public policy of the (Statute) to be
circumvented through the imposition of disciplinary action against an
employee for having filed a charge with the (Authority)." Rather, in
accordance with prior Authority decisions and consistent with private
sector case law cited above, we find that the Respondent's conduct in
threatening Hanlon with discipline for filing unfair labor practice
charges with the Authority constituted an unlawful interference with his
protected right under section 7102 of the Statute to file the charges.
Moreover, we find that the Union's action could reasonably tend to have
a restraining or "chilling" effect on other members who might similarly
wish to exercise such right.
Accordingly, we conclude that the Respondent violated section
7116(b)(1) of the Statute as alleged in the complaint. However, since
Hanlon's filing of unfair labor practice charges was not considered as a
basis for the decision to suspend him, our remedy will address only the
Respondent's reliance on Hanlon's filing of unfair labor practice
charges as a basis for the proposed disciplinary action.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the American Federation of Government Employees, AFL-CIO,
shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing, its members in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by threatening to discipline members for filing unfair
labor practice charges.
(b) In any like or related manner interfering with, restraining or
coercing 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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at the business office at the American Federation of
Government Employees, AFL-CIO, and in normal meeting places, including
places where notices to members of and unit employees exclusively
represented by American Federation of Government Employees, Local 2782,
the agent of the American Federation of Government Employees, AFL-CIO,
are customarily posted, copies of the attached Notice on forms furnished
by the Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the National President of the American
Federation of Government Employees, AFL-CIO, and shall be posted for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to members and to other employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(b) Submit appropriate signed copies of said Notice to the Bureau of
the Census, Suitland, Maryland, for posting in conspicuous places where
unit employees exclusively represented by American Federation of
Government Employees, Local 2782, AFL-CIO, the agent of the American
Federation of Government Employees, AFL-CIO, are located for 60
consecutive days from the date of posting.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of the
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT interfere with, restrain, or coerce our members in the
exercise of their rights assured by the Federal Service Labor-Management
Relations Statute by threatening to discipline members for filing unfair
labor practice charges.
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.
. . . (Union)
DATED: . . . By: . . . (Signature) . . . (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region III,
whose address is 1111 18th Street, N.W. 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.
Case No. 3-CO-60006
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Respondent
EDWARD HANLON
Charging Party
Donald M. MacIntyre, and
Hugh Hassan
For the Respondent
Carolyn J. Dixon, Esquire
Bruce Rosenstein, Esquire
For the General Counsel
Before: JOHN H. FENTON
Chief Administrative Law Judge
This matter arises 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. It is based on a charge filed by Edward Hanlon on
December 9, 1985, and a Complaint issued on February 28, 1986 by the
Regional Director of Region III of the Federal Labor Relations
Authority. The Complaint alleged that Respondent violated Section
7116(b)(1) of the Statute by proposing to discipline Hanlon (i.e.,
affect his membership status) because he filed unfair labor practice
charges. At issue are the questions whether such a threat was in fact
made, and, if so, whether the kind of charge(s) here involved renders
Hanlon's conduct vulnerable to lawful discipline.
A hearing was held on April 15, 1986 in Washington, D.C. Based on
the entire record and my observation of the witnesses, I make the
following findings of fact, conclusions of law and recommendations.
Until March of 1985, Edward Hanlon was President of AFGE Local 2782,
the certified exclusive representative of employees of the Bureau of the
Census. He was defeated in his bid for reelection, and soon thereafter
he became very active in an effort to persuade bargaining unit employees
to switch their allegiance to the National Treasury Employees Union.
On April 17, 1985, AFGE National Vice-President Donald MacIntyre
wrote Hanlon a letter, in which he detailed various acts of claimed
disloyalty on Hanlon's part, informed him that he would be brought to
trial and, if found guilty, expelled from Local 2782. /3/
For various reasons the trial did not commence until November 21,
1985. Hanlon in the meantime continued his activities seeking to
replace AFGE with NTEU as the representative of the unit employees.
Between the date of his "indictment" and October 31 he filed nine unfair
labor practice charges against Census and GSA. All concerned the right
of employees to distribute pro-NTEU materials in the buildings occupied
by Census and controlled by GSA.
On October 31, MacIntyre again wrote Hanlon, amending the original
allegation to add conduct occurring since the April letter. The letter
set forth eight "illustrative" instances of additional pro-NTEU
activity, the last of which was:
You have filed formal charges against the Bureau of Census and
the General Services Administration seeking an opportunity to
distribute NTEU organizing materials to employees presently
represented by AFGE Local 2782.
On November 20, Hanlon's attorney, Leonard Levy, responded to the
charges in a letter to the Chair of Respondent's Trial Committee. He
specifically asserted that Hanlon "has a right to file unfair labor
practice charges against the Census Bureau and the General Services
Administration, and cannot be prosecuted for that." At the trial,
MacIntyre nevertheless pressed his charge in this respect over the
objection of attorney Levy, introducing an unfair labor practice charge
into the record, and examining Hanlon with respect to such activity.
That examination consisted of an effort to extract from Hanlon an
admission that the purpose of the charge (also called complaints) was to
gain an opportunity to distribute NTEU materials. MacIntyre's
persistence in attempting to get Hanlon to concede that such was his
motivation certainly suggested, for what it is worth, that it was not
the charge(s), as such, but the opportunity the charge(s) would open up,
which concerned Respondent. That opportunity as MacIntyre insisted, was
to replace AFGE with NTEU. /4/
During that first day of trial Hanlon presented MacIntyre with a
draft of the unfair labor practice charge which gave rise to this
proceeding, reiterated his right to file such charges, and gave
MacIntyre two weeks in which to withdraw the allegation concerning
formal charges in the October 31 letter. MacIntyre did not answer and
failed to meet that deadline. The charge was filed on December 9. Two
more days of trial followed on December 21 and 22.
On January 8, apparently after the investigation of the instant
charge had involved Respondent, MacIntyre filed a motion with the Trial
Committee. He asked that it strike the allegation concerning the filing
of unfair labor practice charges, and that it not consider, in reaching
its decision, either the exhibit or the testimony relating to it. On
January 20, counsel for Hanlon, while not resisting the request that the
charge be dropped, vigorously resisted any attempt "to purge the record"
of all references to the matter. On January 21, the Trial Committee
granted the motion to "strike from the record" the statement concerning
Hanlon's charges against Census and GSA and the request that the exhibit
and testimony relevant thereto not be considered.
On February 19, the Trial Committee found that Hanlon had engaged in
"conduct detrimental or inimical to the best interests of this
Federation" and recommended that he be expelled, as mandated by Article
XVIII, Section 2(a) of the AFGE Constitution. On February 25, National
President Kenneth T. Blaylock expelled Hanlon from membership for five
years. /5/
The sole factual issue is whether Respondent's proposal to discipline
Hanlon was in part based on his having filed an unfair labor practice
charge in Case No. 3-CA-50499. The lawfulness of his expulsion is not
in question, although Respondent's brief resists on such grounds in
reliance on mixed motive cases and the "but for" test. /6/
The proposed discipline pre-dated by months the unfair labor practice
charge. It is clear that Respondent's overwhelming concern was that the
former president of its Local 2782 was actively campaigning to displace
that union with the NTEU. Its reference to Hanlon's having filed
"formal charges" is the last of twelve "counts" of disloyalty lodged
against him, a placement which appears to indicate its relative
importance. The cross-examination of Hanlon in the internal trial, with
respect to the charge placed in evidence, is limited to the effort to
elicit his admission that he wished to open up the property of
Census/GSA to his organizing effort in behalf of NTEU. It is noteworthy
also that Respondent never proposed any discipline based on Hanlon's
complaints to the Department of Labor.
These circumstances tend to suggest that it was not the "charges" per
se that disturbed Respondent, but rather the disclosure therein of his
treasonous purpose -- a matter Respondent sought to prove at the trial.
Thus, I was prepared for the argument that the allegation was inartfully
or improvidently drawn, and that its reference to the charges was merely
descriptive of the manner in which disloyal activity was disclosed
rather than an attack upon the means chosen to achieve that purpose.
Put another way, it appeared conceivable that Hanlon's right vis-a-vis
Census GSA to file charge and vindicate the right of employees to
distribute organizational materials could be acknowledged or recognized,
while his claimed right to campaign against his union would not be. The
fact that MacIntyre did not respond to the letter from Hanlon's attorney
asserting the latter's right to file a charge, did not respond to
Hanlon's statement that he would file the instant charge if that
allegation was not withdrawn, and defended this action, in part, on the
basis of mixed motive cases, convinces me that Hanlon's action in
invoking the processes of the Authority was itself a factor in the
disciplinary case against him. /7/
The legal issue is more difficult: may an exclusive bargaining agent
expel (suspend?) a member who invokes the Authority's processes by
filing an unfair labor practice charge for the purpose of facilitating
his effort to displace it with another labor organization? Is a union
entitled, under the law, to use its internal disciplinary powers to
defend itself against such a threat to its existence?
The Statute does not contain, in Section 7116(b), which governs the
conduct of labor organizations, any specific unfair labor practice
provision protecting the rights of employees who initiate, or otherwise
cooperate in, proceedings before the Authority. It does, however, in
Section 7116(a)(4) make it an unfair labor practice for an agency to
discipline or otherwise discriminate against an employee
because the employee has filed a complaint, affidavit, or
petition, or has given any information or testimony under this
chapter.
Notwithstanding the lack of a corresponding provision under Section
7116(b), the Authority has held that a union may not remove a steward
because he gave testimony in an Authority proceeding, /8/ expel a member
because he filed, or caused others to file, an unfair labor practice
charge against it, /9/ or threaten an employee who had filed a charge
against it. /10/
The Authority's rationale for these holdings was most fully stated in
6 FLRA 218, as follows:
the right guaranteed to employees under section 7102 of the
Statute to form, join, or assist any labor organization, or to
refrain from such activity, is sufficiently broad to include
within its scope the right of an employee to appear as a witness
in Authority proceeding to which a union is a party and to give
testimony supporting or opposing the union's interest in that
proceeding. In this regard, it is no less interference with the
section 7102 statutory right for a union to discipline or
discriminate against an employee for giving testimony in an
Authority proceeding than it is for an employer to do so as
proscribed by section 7116(a)(4) of the Statute. Such
interference with employee rights under section 7102 is thus a
violation of section 7116(b)(1) of the Statute. However, this
should not be construed as abrogating the union's control of its
own internal affairs in the absence of a statutory violation such
as here involved.
That analysis does not explain why the constraints expressly imposed
upon agencies in such circumstances should apply to labor organizations
in the absence of any explicit reference to the latter, nor does it
acknowledge the relevance of private sector guidance, where the Labor
Board and reviewing Courts have imposed such constraints upon unions in
the construction of a statute which likewise fails expressly to provide
for such unfair labor practices by unions. Because this case presents a
novel question, and one where private sector guidance might well be
useful, the statutory framework of the two laws, as respects the
relationship of unions to those they represent, would appear to be
helpful.
Both laws assure employees the right to form, join or assist any
labor organization, or to refrain from such activity. Our Statute makes
it an unfair labor practice for a union "to interfere with, restrain or
coerce any employee in the exercise of" such rights. The NLRA makes it
an unfair labor practice for a union "to restrain or coerce . . .
employees in the exercise of" such rights, with the proviso that:
this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the
acquisition or retention of membership therein . . .
Our own Statute in Section 7116(b)(4), provides that it shall be an
unfair labor practice for a labor organization --
to discriminate against an employee with regard to the terms
and conditions of membership in the labor organization on the
basis of race, color, creed, national origin, sex, age,
preferential or non-preferential civil service status, political
affiliation, marital status or handicapping condition.
In addition, in Section 7116(c), our Statute provides that:
it shall be an unfair labor practice for an exclusive
representative to deny membership to any employee in the
appropriate unit represented by such exclusive representative
except for failure --
(1) to meet reasonable occupational standards uniformly
required for admission, or
(2) to tender dues uniformly required as a condition of
acquiring and retaining membership.
This subsection does not preclude any labor organization from
enforcing discipline in accordance with procedures under its
constitution or bylaws to the extent consistent with the
provisions of this chapter.
Finally, Section 7115(b) provides that authorized dues deductions
shall terminate when an employee is suspended or expelled from
membership in the union.
The NLRA's treatment of the subject is far less comprehensive. It
provides that an employer may not discriminate against an employee
"because he has filed charges or given testimony under this act." It
contains no limitation on a union's right to discriminate with regard to
the terms or conditions of membership, although it prohibits a union
from causing or attempting to cause an employer to discriminate against
an employee who has been denied membership (or has had it terminated) on
some ground other than a failure to tender the periodic dues and
initiation fees uniformly required as a condition of acquiring or
retaining membership. Its general prohibition on restraint or coercion
of employees in the exercise of Section 7 rights (the analog of our
Section 7102) is associated with a very broadly worded directive: that
such prohibition of restrain and coercion of employees in the exercise
of these fundamental rights of association (or non-association) are not
to be construed in such a way as to limit the union's freedom to
prescribe its own rules respecting membership.
The contrast between the Statutes is marked. Unions in the private
sector expressly have a virtually free hand in deciding the
qualifications for membership and the ways in which such status can be
lost or limited. In the federal sector such power is severly
circumscribed by Section 7116(b)(4), which lists ten grounds upon which
discrimination concerning the terms and conditions of membership is
prohibited. Further, Section 7116(c) arguably eliminates any such
power, at least with respect to the acquisition of membership. It, in a
sweeping statement which seems to render Section 7116(b)(4) not only too
narrow but altogether redundant, prohibits the denial of membership for
any reason other than uniformly imposed requirements having to do with
reasonable occupational standards or the payment of dues. That section
nevertheless leaves unions free to enforce discipline in accordance with
the procedures of constitutions and bylaws "to the extent consistent
with the provisions of this chapter."
Read literally and in isolation, Section 7116(c) would end this
inquiry. Hanlon was denied membership for reasons having nothing to do
with occupational standards or willingness to pay dues. Such a literal
reading of the first sentence of Section 7116(c) would also suggest that
the forms of union discipline recognized in the second sentence could
not include expulsion. However, Section 7115(b) recognizes a union's
power to expel, and the Assistant Secretary, in interpreting Section
19(c) of Executive Order 11491, which is virtually identical to Section
7116(c) of the Statute, recognized a union's right to expel members for
misconduct. /11/ In AFGE Local 987, the Assistant Secretary spoke to
the right of a labor organization "to protect itself from those acts of
its members which threaten its continued existence." He said:
In my view, a labor organization may, pursuant to Section 19(c)
of the Order, subject its members to discipline, including, in
appropriate cases, expulsion, to protect its continued existence,
if such discipline is meted out in accordance with procedures
under the labor organization's constitution or by-laws which
conform to the requirements of the Order.
Although the Authority has not had occasion to address the question,
it would seem clear that Section 7116(c) does not prohibit suspension or
expulsion as a form of discipline exercised by a union in the management
of its internal affairs. The question remains whether it may lawfully
be exercised in response to the filing of an unfair labor practice
charge by a member who seeks thereby to end the union's status as
exclusive bargaining agent.
In the private sector the NLRB, with Court approval, has held that
Congress intended to impose on unions the same restrictions which were
imposed on employers regarding employee rights. Thus, the prohibition
of employer discrimination based on an employee's having filed a charge
or given testimony under that Act has been extended to unions
notwithstanding the lack of such a specific limitation on unions. /12/
The Board noted that its power to prevent and remedy unfair labor
practices confers on any person the right to file charges, that such
right is indispensable to the administration of the law because the
Board cannot initiate its own processes, and that the right to invoke
such processes must therefore be zealously guarded. The same rationale
applies to the Authority: in a word, that an employee who files charges
with the Authority has stepped beyond the internal affairs (or
legitimate concerns) of his union and into the public domain, where
there exists an overriding public interest in keeping access to the
regulatory agencies free from interference in the name of internal
discipline.
The Board has extended such protection to employees who file
petitions, although the terms of its Act apply literally only to charges
or testimony. There is only one slim exception to this doctrine of free
access. In Tawas Tube Products, Inc. (151 NLRB 46) the Board held that
the filing of a decertification petition was an attack upon "the very
existence of the union as an institution" and that the union acted in a
privileged, defensive manner in expelling a member who filed such a
petition. The Board noted that "unless a union can expel a member who
seeks its destruction during the pre-election campaign, the member could
campaign against the union while remaining a member and therefore privy
to the union's strategy and tactics." It noted also that an employee who
seeks to decertify a union hardly values his membership and his
expulsion would therefore not be an effective deterrent against resort
to the Board's processes. That doctrine received Court approval, /13/
and was refined with a holding that a fine for filing a decertification
petition is unlawful. /14/ The rationale for the distinction was that a
fine is punitive rather than defensive -- that the "union is not one
whit better able to defend itself against decertification as a result of
the fine." (The member had not been expelled and, as his ability to work
against his union while remaining privy to its tactics and strategy was
unaffected, no defensive purpose was served by the fine).
Thus the Board recognizes a union's right to take minimal defensive
measures against a dissident bent on its destruction through statutory
means, but condemns any steps which would deter such conduct without
otherwise enhancing the union's ability to thwart such an effort. But
the Board does not recognize a union's right to employe such measures
against a member who files an unfair labor practice charge which may
reasonably be interpreted as a threat to its existence. Thus the Board
refused to apply the Tawas Tube exception in a case involving a charge
of unlawful assistance to the charging party's union. /15/ The charge,
if successfully prosecuted, would have adversely affected the union's
bargaining relationship, and the union defended on the ground that
expulsion was a proper response to an attack on its representation
status. The Board rejected the defense on the ground that unfair labor
practice charges, which require it to examine past events and determine
whether the law has been violated, are very different from
representation cases, which look to future elections concerning
bargaining representatives. Such contests, said the Board, entitle a
union to oust active opponents within their ranks who would undermine
their solidarity. On the other hand permitting a union to penalize a
member for filing a charge directly infringes upon the proper
administration of the Act.
More importantly for our purposes, the Board not only rejected the
claim that a charge of unlawful assistance is a direct attack upon the
union's existence, but it said that it would draw no distinction between
a charge of assistance and one of domination. It made no attempt to
explore the ramifications of the fact that a charge of domination could
lead to disestablishment of the union -- surely a threat of extinction
comparable to that posed by a decertification petition. The
distinction, of course, is that the charge requires examination of
events which are history, and does not impact on choices which are to be
made by unit employees.
The guidance from the private sector appears to be that the Tawas
Tube doctrine is strictly limited to the decertification petition, and
is unavailable in a complaint case no matter how strong the analogy to
be drawn in terms of the threat posed to the union's existence. An
employee's right to bring about correction of a perceived wrong simply
overrides the union's right to require loyalty.
The instant case is however, somewhat different than any of those
discussed. Here Hanlon's charge was the precursor of a representation
petition designed to oust his union as bargaining agent. The situation
is, then, but one short step removed from Tawas, and unlike the cases
examined, it involves the question whether a labor organization must
tolerate an enemy within its ranks who files a charge as the entering
wedge to decertification or displacement. That is, it presents the case
of a member simultaneously attempting to subvert his organization and
insisting on his right to retain his membership and be privy to the
tactics and strategy of his union in its effort to defend itself against
its rival.
It could be argued that the Supreme Court sub silentio overruled
Tawas Tube when it held that those who invoke the statutory process for
the resolution of labor disputes thereby enter the public domain and are
beyond the reach of legitimate union concern and discipline. /16/ But
the Supreme Court spoke in a case involving an unfair labor practice
charge, and one devoid of a threat to the union's existence. Here, as
noted, the similarity to Tawas Tube is close: this case, although
involving a charge, was pregnant with the prospect of decertification or
its equivalent, and the Union's response to its threatened elimination
was minimal and defensive. That is, threatened expulsion ought not be a
strong deterrent to one who seeks to destroy the institution, and
exclusion from meetings (and other internal sources of information)
serves the purpose of depriving the dissident of the advantages of an
insider in his effort to unseat the incumbent union. These
considerations argue strongly, in my view, for the legitimacy of
Respondent's conduct, for the impediment to access to the policing
authority is weak and the defensive purpose of exclusion is there here,
as Courts have noted in some private sector cases, any real threat that
expulsion will impinge on employment opportunities so as to render it a
punitive measure, coercive in the sense a fine is.
There is yet a further obstacle to a finding that the Tawas Tube
doctrine may justify what was done here. It is that our Statute
expressly protects petitioners against agency interference, unlike its
analog at the Labor Board. Arguably, identical protection is extended,
by implication, to the restraints on unions. /17/ If, on the other
hand, one views the NLRA as the model for our Statute, one assumes that
Congress knew of, and approved of, the kind of exception recognized in
Tawas Tube for a collective bargaining agent which takes the "minimal
defensive measure" of expelling a member who seeks to end its existence.
An employer has no conceivable justification for discriminating against
a petitioner. The Board and Courts have found in very limited
circumstances, that a union is justified in resisting a member's "direct
attack" upon its institutional existence. It seems to me to be to be
the better part of wisdom to accept that distinction for purposes of
administering this law, i.e., to recognize a union's right to expel, but
not otherwise to coerce a member who seeks to destroy it in a way highly
comparable to the filing of a decertification petition. A wooden
transfer of the literal terms of Section 7116(a)(4) to Section
7116(b)(1), on the theory Congress must have intended that which it
omitted to be the exact equivalent of that which it addressed, would
eliminate even the Tawas Tube exceptions to the general interdiction of
any interference with persons who invoke the procedures of the
Authority.
In sum, very persuasive arguments can be made against extending the
Tawas Tube doctrine to any case involving an unfair labor practice
charge. I nevertheless recommend that the Authority take that step in
the unique circumstances of this case. Hanlon sought, through the
Authority's complaint processes, a more effective means of communicating
to unit employees a message designed to end Respondent's existence as
collective bargaining agent. The next step, in such an agenda, was to
invoke the Authority's representation processes for purposes of
displacing Respondent with NTEU. Respondent's limited and defensive
response was a threat to expel him from membership for filing the charge
which would initiate that course of action and facilitate achievement of
that end. The charge filed here was a close counterpart to a
decertification petition, i.e., it was an important element in a "direct
attack upon" or challenge to his Union's existence. While any
interference with his access to the channels created by Congress for the
administration of this law is not to be lightly regarded, there is a
limit, as Tawas teaches. Loss of membership in an organization Hanlon
sought to destroy need not be viewed as a serious and effective
deterrent to the filing of such a charge, for he could hardly place much
value on it. And the Union's right not to enhance his prospects for
recruiting its constituency to his cause by tolerating his continued
participation in its internal affairs is deserving of some consideration
as a limited and hence appropriate defense to such an onslaught. His
conduct, then, was a matter of legitimate Union concern in the
management of its internal affairs, and is subject to discipline which
is purely defensive and does not unnecessarily intrude upon, or coerce
him in the exercise of his right to file a charge. As such a trade-off
does not in my judgment offend the Statute, I conclude that Respondent
did not unlawfully threaten Hanlon, but rather stated its intention to
enforce discipline under Section 7116(c) in a manner "consistent with
the provisions of this chapter."
Having concluded that Respondent did not violate Section 7116(b)(1)
of the Statute, I recommend that the Authority enter the following
Order:
IT IS HEREBY ORDERED that the Complaint in Case No. 3-CO-60006 be
dismissed in its entirety.
/s/ JOHN H. FENTON
Chief Administrative Law Judge
Dated: December 30, 1986
Washington, D.C.
(1) We view the Respondent's final disciplinary action against Hanlon
as a 5-year suspension.
(2) We note that section 7116(c) expressly provides that it is an
unfair labor practice for a union to deny membership to any employee in
a bargaining unit represented by the union except for an employee's
failure (1) to meet reasonable occupational standards uniformly required
for admission, or (2) to tender dues uniformly required as a condition
for acquiring and maintaining membership. As noted above, we view the
Respondent's final disciplinary action against Hanlon as a suspension of
his membership.
(3) He was charged with violating Article XVIII, Section 2(a), (b),
(c), (e) and (f) of the AFGE Constitution. Expulsion was mandated for
violations of Section 2(a).
(4) MacIntyre's loose use of the singular and plural in reference to
charges and complaints, as well as his interchangeable use of the terms,
persuades me that his use of the plural in describing Hanlon's "formal
charges" in the October 31 letter does not indicate that he was aware of
all nine unfair labor practice charges filed by Hanlon (and others)
between June 4 and October 1. (G.C. Exhs. 4-12). MacIntyre admitted to
knowledge of only the one charge (G.C. Exh. 11) which he had relied upon
in the trial, and there is no convincing evidence that he was aware of
those he did not rely upon. While the matter was an issue, the one
charge he acted upon will suffice for all purposes.
(5) It is noted that Hanlon also filed complaints with the United
States Department of Labor in August of 1985, asserting that neither the
Local nor the National AFGE Constitutions contained "adequate
procedures" under 29 CFR 417.2(e) for the trial and removal of officers.
His resort to this forum was not among the allegations of disloyalty
which led to expulsion.
(6) One assumes no charge was filed, or at least that no complaint
was issued because ample reason for expulsion existed and that such
result would not have been altered even by a finding that the filing of
the charge was a factor. Respondent's reliance on AFGE Local 1920, 16
FLRA 464, is therefore misplaced. The issue here is whether Respondent
unlawfully threatened Hanlon with internal discipline.
(7) Respondent's motion to strike this allegation, and to expunge
related materials, came nine weeks or so after the allegation
constituting the threat was made. It was not accompanied by an apology,
an acknowledgement of Hanlon's statutory rights, or anything of the
sort. Thus the action taken was too little and too late to render the
threat less than actionable. USAF, Lowery Air Force Base, Denver,
Colorado, 16 FLRA 952, 958.
(8) NTEU and NTEU Chapter 53, 6 FLRA 218.
(9) NAGE, Local R5-66, 17 FLRA 796.
(10) OEA, 15 FLRA 488.
(11) Local 1858, AFGE (Redstone Arsenal, Alabama, A/SLMR No. 275;
AFGE Local 1650, Beeville, Texas, A/SLMR No. 294, FLRC No. 73A-43; and
AFGE Local 987 (Jerry Norris), A/SLMR No. 420.
(12) Local 138, Operating Engineers (Charles S. Skura), 148 NLRB 679
(fine for filing charge against union); Cannery Workers Union (Van Camp
Seafood), 159 NLRB 843 (expulsion for filing charge); NLRB v.
Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 68
LRRM 2257 (expulsion for filing charge).
(13) Price v. NLRB, 64 LRRM 2495 (suspension from membership for five
years).
(14) International Molders and Allied Workers Union, Local 125,
AFL-CIO (Blackhawk Tanning Co.), 178 NLRB 208.
(15) Cannery Workers Union (Van Camp Sea Food Co.), 159 NLRB 843.
(16) NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391
U.S. 418, 68 LRRM 2257.
(17) For the strength of the assumption that Congress meant to place
labor organizations under the same NLRA constraints as employers in such
matters, notwithstanding the absence of any statutory provisions
covering the subject, even where a comprehensive treatment of the
subject had been dropped from the Bill, see Roberts v. NLRB, 59 LRRM
2801 (DCCA, 1965).
29 FLRA NO. 113
Mare Island Naval Shipyard and Federal Employees Metal Trades Council
(Ward, Arbitrator), Case No. 0-AR-1428, (Decided October 30, 1987)
7122(a) and (b)
PROCEDURE, FORUMS
ARBITRATION AWARDS, REVIEW OF
ADVERSE ACTIONS (5 U.S.C. 4303 AND 7512)
SUSPENSIONS FOR MORE THAN 14 DAYS
The Authority dismissed the exceptions to the arbitration award,
finding that they are without jurisdiction to review the Union's
exceptions as the Arbitrator's award relates to a matter covered by
section 7512 of the Statute, name removal of the grievant which was
reduced by the Arbitrator to a suspension for more than 14 days. The
Authority noted that under section 7122(a) of the Statute, exceptions to
this award may not be filed with the Authority because the award relates
to a matter described in section 7121(f), which are exclusions to
matters that can be excepted to the Authority.
Case No. 0-AR-1428
MARE ISLAND NAVAL SHIPYARD
Activity
FEDERAL EMPLOYEES METAL TRADES COUNCIL
Union
This matter is before the Authority on exceptions to the award of
Arbitrator William W. Ward 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 grievant was removed from his position for being absent without
leave. He filed a grievance which was submitted to arbitration on the
issue of whether the removal was for just cause. Before the Arbitrator,
the grievant contended that his absence was the result of an on-the-job
injury and was therefore authorized.
The Arbitrator determined that while the record established that the
grievant was absent without leave, there was not just cause for removing
him. Rather, he found that, based on the length of the grievant's
employment and his lack of prior discipline, a suspension would have
been a more appropriate penalty. As his award, the Arbitrator ordered
the Activity to reinstate the grievant in his former position, but with
no backpay or benefits from the time he last worked until the time of
reinstatement.
In its exceptions, the Union alleges essentially that the Arbitrator
failed to follow applicable decisions of the Merit Systems Protection
Board concerning unauthorized leave by employees with injuries
compensable under workmen's compensation, and that he failed to apply
the requirements for discipline and suspensions contained in the
negotiated agreement and the Federal Personnel Manual.
We find that we are without jurisdiction to review the Union's
exceptions. Section 7122(a) of the Statute provides:
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
adverse actions under 5 U.S.C. Section 7512, such as removals and
suspensions for more than 14 days.
The Arbitrator's award relates to a matter covered by section 7512,
namely, the removal of the grievant which was reduced by the Arbitrator
to a suspension for more than 14 days. Under section 7122(a) of the
Statute, exceptions to this award may not be filed with the Authority
because the award relates to a matter described in section 7121(f).
See, for example, U.S. Army Armament Research, Development and
Engineering Center (ARDEC), Dover, New Jersey and National Federation of
Federal Employees (NFFE), Local 1437, 24 FLRA 837 (1986) (dismissing
exceptions to an arbitrator's award concerning the interpretation and
application of a settlement agreement under which the grievant's removal
was changed to a suspension of approximately 6 months). Consequently,
we are without jurisdiction to review the exceptions.
The Union's exceptions are dismissed.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 112
Engineers and Scientists of California, MEBA and EPA, Case No.
0-NG-1265, (Decided October 30, 1987)
7105(a)(2)(E)
7114(c)
COLLECTIVE BARGAINING AGREEMENT
RATIFICATION/APPROVAL OF AGREEMENT
AGENCY HEAD'S REVIEW OF CONTRACT PROVISIONS
LOCAL SUPPLEMENTAL AGREEMENT
NEGOTIABILITY PROCEDURE
ALLEGATION OF NONNEGOTIABILITY
AGENCY HEAD'S DISAPPROVAL OF AN AGREEMENT
SUPPLEMENTAL AGREEMENT, LOCALLY NEGOTIATE
TIMELINESS (7117(c)(2))
FIFTEEN DAY TIME LIMIT TO FILE AN APPEAL
The negotiability petition for review in this case was dismissed as
untimely. At issue was an appeal following Agency Head disapproval of a
locally negotiated agreement. The decision notes that it is well
established that the submission of an agreement to an agency head for
approval or disapproval constitutes a request for an allegation of
nonnegotiability. The 15-day time limit for an appeal starts at the
date the disapproval is served on the union. The fact that the parties
engage in further negotiations concerning the disapproved provisions
does not render inoperative the earlier allegation of nonnegotaibility.
In this case, the matters involved in the present dispute were
substantially identical to the provisions the Agency disapproved under
section 7114(c). Hence the appeal now before the Authority is untimely.
Case No. 0-NG-1265
ENGINEERS AND SCIENTISTS OF CALIFORNIA, MEBA (AFL-CIO)
Union
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Agency
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute (the Statute)
and section 2424.1 of the Authority's Rules and Regulations on a
petition for review of negotiability issues filed by the Union.
The Agency states that this appeal concerns provisions of a locally
negotiated collective bargaining agreement which were disapproved by the
Agency Head under section 7114(c) of the Statute in 1985. The Agency
argues that the appeal must be dismissed as untimely under section 7117
of the Statute and section 2424.3 of our Regulations, because it was
filed more than one year after the Agency served the disapprovals on the
Union. The Union did not respond to these Agency contentions.
Based on the Agency's contentions, which are not disputed by the
Union, we conclude the Union's petition is untimely and must be
dismissed. Section 2424.3 of our Regulations provides:
The time limit for filing a petition for review (of
negotiability issues) is fifteen (15) days after the date the
agency's allegation that the duty to bargain in good faith does
not extend to the matter proposed to be bargained is served on the
exclusive representative. . . .
In this regard, it is well established that the submission of an
agreement to an agency head for approval or disapproval constitutes a
request for an allegation of nonnegotiability under this rule. For
example, National Federation Federal Employees, Local 1505 and
Department of the Interior, National Park Service, Roosevelt-Vanderbilt
National Historical Site, Hyde Park, New York, 7 FLRA 608 (1982). It is
also well established that the 15-day time limit for such an appeal
starts at the date the disapproval is served on the union. Id.
The fact that the parties engaged in further negotiations concerning
the provisions, following their having been disapproved, did not render
inoperative the earlier allegation of nonnegotiability. See American
Federation of Government Employees, AFL-CIO, Local 2303 and Metropolitan
Washington Airports, Federal Aviation Administration, U.S. Department of
Transportation, 17 FLRA 17 (1985), affirmed sub nom. American Federation
of Government Employees, AFL-CIO, Local 2303 v. FLRA, 815 F.2d 718 (D.C.
Cir. 1987).
The matters involved in the present appeal are substantially
identical to the provisions the Agency disapproved under section
7114(c). Accordingly, we conclude that the appeal is untimely and must
be dismissed.
For the Authority.
Issued, Washington, D.C., October 30, 1987.
/s/ Harold D. Kessler
Director of Case Management
29 FLRA NO. 111
HHS, SSA and AFGE, Local 3610, Case No. 2-CA-70163, (Decided October
30, 1987)
7114(b)(4)
7106(a)(1), (5) and (8)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
AGENCY ULP (ALLEGED) 7116(a)(8)
7114(b)(4)
INFORMATION, TYPES OF INFORMATION REQUESTED
NAMES AND ADDRESSES OF EMPLOYEES
In this Unfair Labor Practice case the Authority ruled that the
Agency had violated the Statute by refusing to furnish to the exclusive
bargaining representative the names and home addresses of bargaining
unit employees.
Case No. 2-CA-70163
DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND SOCIAL SECURITY
ADMINISTRATION
Respondents
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3610
Charging Party
The Administrative Law Judge issued the attached decision in this
case, finding that the Department of Health and Human Services and the
Social Security Administration (the Respondents) 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 Respondents be
ordered to take appropriate remedial action. The Respondents filed
exceptions to the Judge's Decision.
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 hereby
affirmed. Upon consideration of the Judge's Decision, the exceptions,
and the entire record, we adopt the Judge's findings, conclusions, and
recommended Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Department of Health and Human Services and the Social
Security Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 3610, the exclusive representative of
certain of its employees, the names and home addresses of all employees
in the Office of Hearings and Appeals, Region III.
(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) Respondent Department of Health and Human Services shall
forthwith withdraw its Departmental Policy that an exclusive
representative is not entitled to home addresses under 5 U.S.C. Section
7114(b)(4).
(b) Respondent Social Security Administration will furnish the names
and home addresses of all bargaining unit employees as requested by the
American Federation of Government Employees, AFL-CIO, Local 3610.
(c) Post at the facilities of the Social Security Administration,
Office of Hearings and Appeals, Region III, 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
Secretary, Department of Health and Human Services and by the
Commissioner, Social Security Administration 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 3610, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the Office of Hearings and Appeals, Region III.
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 forthwith withdraw the Departmental Policy that an exclusive
representative is not entitled to home addresses under 5 U.S.C. Section
7114(b)(4).
WE WILL furnish the names and home addresses of all bargaining unit
employees as requested by the American Federation of Government
Employees, Local 3610.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Dated: . . . By: (Secretary)
SOCIAL SECURITY ADMINISTRATION
Dated: . . . By: (Commissioner)
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, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, New York 10278 and whose
telephone number is: (212) 264-4934.
Case No. 2-CA-70163
DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND SOCIAL SECURITY
ADMINISTRATION
Respondents
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3610
Charging Party
Richard M. Friedman, Esquire
For the Respondents
Barbara S. Liggett, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
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., /*/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns the refusal to
Respondents to furnish, pursuant to Section 14(b)(4) of the Statute, a
list of bargaining unit employees and their home addresses, and is
before me on the cross-motions of the parties for summary judgment.
This proceeding was initiated by a charge filed on February 25, 1987
(G.C. Exh. 1(a)) which alleged violations of Sections 16(a)(1), (6) and
(8) of the Statute. A First Amended Charge filed on March 30, 1987,
(G.C. Exh. 2(a)) which alleged violation of Sections 16(a)(1), (5) and
(8) of the Statute; and the Complaint and Notice of Hearing issued on
April 28, 1987 (G.C. Exh. 3), alleged violations of Sections 16(a)(1),
(5) and (8) of the Statute and set the hearing for June 23, 1987.
Respondents by their Answer (G.C. Exh. 4) admitted that on January 30,
1987, the Union requested that Respondent Social Security Administration
furnish it with home addresses of all employees of the Office of
Hearings and Appeals, Region III (Par. 7); admitted that the
information requested is maintained by Respondent Social Security
Administration in the regular course of business and is reasonably
available (Par. 8(a)); denied that the information requested is
necessary for full and proper discussion, understanding, and negotiation
of subjects within the scope of collective bargaining (Par. 8(b));
admitted that the information requested does not constitute guidance,
advice, counsel, or training provided for management officials or
supervisors relating to collective bargaining (Par. 8(c)); and denied
that the furnishing of Respondent Social Security Administration of the
information requested is not prohibited by law (Par. 8(d)). Respondents
admit that since February 11, 1987, Respondent Social Security
Administration has failed or refused, and continues to fail and refuse,
to furnish the Union with the requested names and home addresses.
Respondents denied the allegations of Paragraph 10 of the Complaint,
that Respondent Department of Health and Human Services has directed
Respondent Social Security Administration not to provide the information
requested and Respondent Department Department of Health and Human
Services therefore prevented, and is preventing, Respondent Social
Security Administration from furnishing the information requested;
however, Respondents " . . . admitted DHHS established a departmental
policy based on its legal position that an exclusive representative is
not entitled to home addresses under 5 U.S.C. Section 7114(b)(4), and
that SSA is subject to that departmental policy (G.C. Exh. 4, Par. 10).
Respondents denied that any violation of the Statute occurred as alleged
in Paragraphs 11-15 of the Complaint (G.C. Exh. 4, Par. 11-15).
On June 9, 1987, General Counsel filed a Motion for Summary Judgment
with the Regional Director of Region II of the Federal Labor Relations
Authority. On June 10, 1987, an Order issued indefinitely postponing
hearing; and on June 10, 1987, the Regional Director, Region II,
Federal Labor Relations Authority, by Order, pursuant to Section
2423.22(b) of the Rules and Regulations, referred the Motion for Summary
Judgment to the Chief Administrative Law Judge for ruling, which was
duly assigned to the undersigned. Respondents filed a Cross-Motion for
Summary Judgment, together with Memorandum Supporting Respondents'
Cross-Motion for Summary Judgment and Opposing the General Counsel's
Motion for Summary Judgment, received on June 17, 1987. On June 24,
1987, General Counsel mailed an Opposition to Respondents' Cross-Motion
for Summary Judgment, received on June 29, 1987; and on July 28, 1987,
Respondents mailed a Supplementary Memorandum Supporting Respondents'
Cross-Motion for Summary Judgment and Opposing the General Counsel's
Motion for Summary Judgment, received on July 30, 1987.
The American Federation of Government Employees, AFL-CIO (AFGE) is
the certified exclusive representative of a consolidated nationwide unit
of certain employees of Respondent Social Security Administration (SSA),
including all eligible non-supervisory general schedule field employees
employed by the Office of Hearings and Appeals, SSA in Department of
Health and Human Services (DHHS) Region III, excluding all other DHHS,
Region III employees, temporary employees, managerial and supervisory
personnel, professional employees, federal employees engaged in
personnel work in other than a purely clerical capacity, and guards
(Complaint, G.C. Exh. 3, Par. 6(a)); admitted, Answer, G.C. Exh. 4,
Par. 6). AFGE has delegated to the American Federation of Government
Employees, AFL-CIO, Council 215 (Council 215) authority to act as its
representative for the purposes of collective bargaining for certain of
Respondent's SSA employees, including employees of the Field Office of
Hearings and Appeals, Region III, and Council 215's delegation has been
recognized by Respondent SSA (Complaint, G.C. Exh. 3, Par. 6(b));
admitted, Answer, G.C. Exh. 4, Par. 6). American Federation of
Government Employees, AFL-CIO, Local 3610 (the "Union") has acted as
agent for Council 215 for the purposes of collective bargaining for
certain of Respondent SSA's employees, including employees at the Field
Office of Hearings and Appeals, Region III, and the Union's delegation
has been recognized by Respondent SSA (Complaint, G.C. Exh. 3, Par.
6(c)); admitted, Answer, G.C. Exh. 4, Par. 6).
The Union's request for the names and home addresses, alleged in
Paragraph 7 of the Complaint (G.C. Exh. 3, Par. 7), and admitted in
Respondents' Answer (G.C. Exh. 4, Par. 7), was made by letter dated
January 30, 1987 (G.C. Exh. 5) which stated, in part, as follows:
"Local 3610/AFGE/OHA-Region 3 requests the names and home
addresses of all employees in the Office of Hearings and Appeals,
Region 3 represented by the American Federation of Government
Employees (AFGE) AFL-CIO.
"This information is necessary to our Local Union #3610/AFGE,
so that we may properly conduct labor-management business and live
up to our collective bargaining responsibilities." (G.C. Exh. 5).
Respondent SSA's refusal to furnish the requested names and home
addresses, alleged in Paragraph 9 of the Complaint (G.C. Exh. 3, Par. 9)
and admitted in Respondents' Answer (G.C. Exh. 4, Par. 9) was made by
letter dated February 11, 1987 (G.C. Exh. 6), which stated, in part, as
follows:
"I am unable to comply with your request and furnish this
information in that the release of home addresses would constitute
a serious and unwarranted invasion of personal privacy which is
protected by the Privacy Act. In addition, there are adequate
alternative means available through which you may contact and
communicate with the employees whom you represent." (G.C. Exh. 6).
Further, as set forth above, Respondents admit that,
" . . . DHHS established a departmental policy based on its legal
position that an exclusive representative is not entitled to home
addresses under 5 U.S.C. Section 7114(b)(4), and that SSA is
subject to that departmental policy." (Answer, G.C. Exh. 4, Par.
10).
Although Respondents assert that there is "A genuine issue of
material fact as to the existence and effectiveness of alternative means
of communication . . . " (Respondent Memorandum Supporting Respondents
Cross-Motion for Summary Judgment and Opposing the General Counsel's
Motion for Summary Judgment (hereinafter, "Respondent's Memorandum"),
(p. 7), there is no dispute, or "genuine issue" as to any material fact
for the reasons that: (a) for the purpose of decision, I assume the
existence of alternative means of communication; (b) the Authority in
Farmers Home Administration Office, St. Louis, Missouri, 23 FLRA No.
101, 23 FLRA 788 (1986), (Farmers Home) petition for review filed sub
nom. U.S. Department of Agriculture and the Farmers Home Administration
Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23,
1986), held that, " . . . the names and home addresses are necessary and
should be provided whether or not alternative means of communication are
available." (23 FLRA at 797), the Authority having specifically found
that, "it is not necessary for us to examine the adequacy of alternative
means in cases involving requests for names and home addresses because
the communication between unit employees and their exclusive
representative which would be facilitiated by release of names and home
addresses information is fundamentally different from other
communications through alternative means which are controlled in whole
or in part by the agency. When using direct mailings, the content,
timing, and frequency of the communication is completely within the
discretion of the union and there is no possibility of agency
interference in the distribution of the message. Further, direct
mailings reach unit employees in circumstances where those employees may
consider the union's communication without regard to the time
constraints inherent in their work environments, and in which any
restraint the employee may feel as a result of the presence of agency
management in the workplace is not present." (23 FLRA at 796-797). The
Authority has reiterated this holding in numerous subsequent decisions,
including: Social Security Administration, Northeastern Program Service
Center, 24 FLRA No. 13, 24 FLRA 108, 112 (1986); Department of Health
and Human Services, Social Security Administration, 24 FLRA No. 60, 24
FLRA 543, 545 (1986); Department of Health and Human Services, Social
Security Administration Field Operation, New York Region, 24 FLRA No.
62, 24 FLRA 583, 585 (1986); Department of the Navy, Naval Submarine
Base, New London (New London, Connecticut), 27 FLRA No. 85, 27 FLRA 785
(1987); Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center (Iron Mountain, Michigan), 28 FLRA No. 12,
28 FLRA 47 (1987); Long Beach Naval Shipyard, Long Beach, California,
28 FLRA No. 20, 28 FLRA 102, 103 (1987); and (c) it is apparent from
Respondents' Memorandum that the issue it poses is, in reality, a
disagreement as a matter of law with what it views as the trivialization
by the Second Circuit Court of Appeals, in American Federation of
Government Employees, Local 1760 v. FLRA, 786 F.2d 554 (2nd Cir. 1986),
of the privacy interest (Respondent's Memorandum, p. 10) and that the
Authority in Farmers Home, supra, " . . . was in error because it under
valued the privacy interest in home addresses, and because it ignored
case law requiring consideration of alternative means in performing the
Exemption 6 to balancing test." (Respondent's Memorandum, pp. 7-8).
As there are no material facts in dispute, this matter is appropriate
for decision by summary judgment.
Be Granted and Respondents' Motion for Summary Judgment
Must Be Denied.
Section 14(b)(4) of the Statute imposes a duty on an agency to
furnish the exclusive representative, upon request, and to the extent
not prohibited by law, data:
"(A) which is normally maintained by the agency in the regular
course of business;
"(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
"(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . . " (5 U.S.C. Section
7114(b)(4)(A), (B) and (C)).
Respondent admitted that it maintains the names and home addresses in
the regular course of business; that the names and home addresses are
reasonably available; and that such data does not constitute guidance,
advice, counsel, or training provided for management officials or
supervisors relating to collective bargaining. Respondents deny that
disclosure of names and home addresses is necessary for full and proper
discussion, understanding, and negotiations of subjects within the scope
of collective bargaining and, while recognizing that the Authority in
Farmers Home, supra, held that the relevancy of home addresses to the
Union's representational function met this requirement (Respondent's
Memorandum, p. 16; see 23 FLRA at 797-798), Respondents assert that, "
. . . the Authority erred in this holding." (Respondent's Memorandum, p.
16). Respondents also argue that the disclosure of employees' home
addresses is "prohibited by law" within the meaning of Section 14(b)(4),
an argument rejected by the Court of Appeals for the Second Circuit, in
American Federation of Government Employees, Local 1760 v. FLRA 786 F.2d
554 (2nd Cir. 1986) and which was considered at length by the Authority
and rejected in Farmers Home, supra, and which has been further
considered by the Authority and rejected in numerous subsequent
decisions, including those cited hereinabove.
In its Supplementary Memorandum, Respondents state, in part, as
follows:
" . . . Respondents relied on guidelines published in the
Federal Personnel Manual (FPM) by the former Civil Service
Commission. See Respondents' initial Memorandum, Exhibit A.
Respondents have recently learned that OPM deleted these
guidelines from the FPM on May 12, 1986 . . .
"However, OPM has announced its current interpretation of its
routine use. Under its interpretation, essentially two
requirements must be met for the disclosure to be within the
routine use. First, the information must be relevant to the
collective bargaining process . . . The second requirement is
that the information be 'relevant and necessary' for the purpose
for which it is requested . . . This requirement is not met,
according to OPM, if 'adequate alternative means exist for
communicating with bargaining unit employees.'" (Supplementary
Memorandum, pp. 2-3).
The Authority addressed the deletion in Department of Health and
Human Services, Social Security Administration, 27 FLRA No. 4, 27 FLRA
20, 22 (1987), where it stated, in part, as follows:
" . . . The instruction from OPM indicated essentially that
material from the supplement has been updated and incorporated in
FPM Chapter 711 . . . The revised FPM Chapter 711 did not,
however, incorporate the former Appendix C guidance nor did it
provide new guidance, relating to the routine use. Therefore,
there is no need for us to consider such guidance on routine use
because it is no longer in effect." (27 FLRA at 22).
See, to like effect, Department of the Navy, Naval Air Station,
Moffett Field, California, 28 FLRA No. 10, 28 FLRA 35, 36 (1987).
The "interpretation" of OPM in its amicus brief to the Authority on
July 14, 1986, presumably has been considered by the Authority; but
such "interpretation" by amicus brief does not have the effect of a
regulation or guidance incorporated in the FPM.
In any event, even if exception (b)(3) of the Privacy Act relating to
"routine use" did not permit the release of employees' home addresses,
because not "relevant and necessary" if "adequate alternate means exist
for communicating with bargaining unit employees", and the Authority has
decided that alternative means are not adequate, see 23 FLRA at 796-797,
nevertheless disclosure of employees' names and home addresses is
required pursuant to exception (b)(2) of the Privacy Act. Thus, in
Departments of the Army and Air Force, Army and Air Force Exchange
Service, Headquarters, Dallas, Texas, and Army and Air Force Exchange
Service, McClellan Air Force Base, California, 26 FLRA No. 85, 26 FLRA
691 (1987), the Authority held, in part, as follows:
"The Respondent correctly notes that AAFES employees are not
subject to OPM regulation; that the employees' personnel files
are not governed by the OPM's routine use statements; and that
AAFES' routine use statements do not include unions as routine
users. Therefore, disclosure of McClellan Air Force Base Exchange
employees' home addresses to the Union may not be authorized under
exception (b)(3) of the Privacy Act.
"However, this distinction does not affect the disclosure of
these employees' home addresses to the Union under exception
(b)(2) of the Privacy Act. Exception (b)(2) states that if the
disclosure of the requested information is required by the Freedom
of Information Act (FOIA), the Privacy Act's bar to disclosure is
not applicable. 5 U.S.C. Section 552(b)(2). In Farmers Home, we
discussed exception (b)(2) and applied the necessary balancing
test under the FOIA. We stated in Farmers Home (slip op. at 6)
(23 FLRA at 793):
On balance, we find that the public interest to be furthered by
providing the Union with an efficient method to communicate with
unit employees it must represent far outweighs the privacy
interests of individual employees in their names and home
addresses. Disclosure of the requested information would not
constitute a clearly unwarranted invasion of personal privacy and
does not fall within the (b)(6) exemption of the FOIA. Since the
information does not fall within the exemption, its disclosure is
required under the FOIA and, under exception (b)(2) to the Privacy
Act, its release is not prohibited by law.
We reaffirm that conclusion here, and find that the information
sought by the Union could be released by the Respondent under
exception (b)(2) of the Privacy Act. For the reasons set forth
more fully in Farmers Home, we reject the Respondent's suggestion
that we adopt the approach of the court in AFGE, Local 1923
(American Federation of Government Employees, Local 1923, v.
United States Department of Health and Human Services), 712 F.2d
931 (4th Cir. 1983).
" . . . consistent with our decision in Farmers Home, we
therefore find that the Respondent was required to furnish the
Union with the home addresses of the employees in the bargaining
unit. Its refusal to do so violated section 7116(a)(1) and (8) of
the Statute." (26 FLRA at 694).
Respondents also argue that, "The Union did not present any
justification for its request beyond a general reference to
'labor-management business' and its collective bargaining
responsibilities" (Respondents' Memorandum p. 1). As set forth
hereinabove, the Union's request stated, in material part, that
"This information is necessary to our Local Union 3610/AFGE, so
that we may properly conduct labor-management business and live up
to our collective bargaining responsibilities." (G.C. Exh. 5).
I am aware that the union's request in Farmers Home, supra, has been
"to enable it to prepare for contract negotiations"; but the Union's
justification here, "so that we may properly conduct labor-management
business and live up to our collective bargaining responsibilities",
while it does not mention preparation for contract negotiations, is
certainly broad enough to include preparation for contract negotiations.
Respondent SSA neither denied the request because the Union had not
given a more specific justification, nor was a more specific
justification required as the Authority stated in Farmers Home, supra,
" . . . We find that the statutory requirement concerning
sufficiency of a request under section 7114(b)(4) is satisfied . .
. when a general written request for the information is made. A
precise explication of the reason for the request involved here is
not necessary . . .
" . . . In our view, an exclusive representative's need for the
names and home addresses of the bargaining unit employees it is
required to represent is so apparent and essentially related to
the nature of exclusive representation itself, that unlike
requests for certain types of other information, an agency's duty
to supply names and home addresses information does not depend
upon any separate explanation by the union of its reasons for
seeking the information." (23 FLRA at 795).
All of Respondents' arguments, whether or not specifically addressed,
have been considered and I find that the Authority's decision in Farmers
Home, supra, is dispositive of all of Respondents' contentions and,
accordingly, the refusal to furnish the Union with the names and home
addresses of bargaining unit employees violated the Statute.
Respondent SSA violated Sections 16(a)(1), (5) and (8) of the Statute
by its failure and refusal to furnish the requested names and home
addresses of employees in the bargaining unit; and Respondent DHHS
violated Sections 16(a)(1) and (5) of the Statute by its Departmental
Policy, which was that an exclusive representative is not entitled to
home addresses under 5 U.S.C. Section 7114(b)(4), to which Departmental
Policy Respondent SSA was subject and Respondent DHHS thereby prevented,
and is preventing, Respondent SSA from furnishing the requested names
and home addresses of bargaining unit employees.
With full recognition that: (a) the Authority has repeatedly held
that:
" . . . when agency management at a higher level prevents agency
management at a subordinate level of exclusive recognition from
complying with its obligation under the Statute by 'directive,'
'requirement,' or 'direction,' the higher-level management entity
violates . . . the Statute (footnote omitted). The Authority has
held further that, where the subordinate entity is thus left with
no discretion to comply with statutory obligations, that entity
will not also have violated section 7116(a). (footnote omitted)"
(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 No. 71, 22 FLRA 647, 651-652 (1986); and
(b) Counsel for the General Counsel in her motion for summary
judgment states, in part, that:
"5. If the motion for summary judgment is granted against
Respondent DHHS, Counsel for the General Counsel moves to conform
the pleadings with the judgment by withdrawing the complaint as to
Respondent SSA. Alternatively, if the motion for summary judgment
is granted against Respondent SSA, Counsel for the General Counsel
moves to conform the pleadings with the judgment by withdrawing
the complaint as to Respondent DHHS." (Motion for Summary
Judgment, p. 3, paragraph 5).
Nevertheless, the record in this case justifies and, to provide
complete relief for the violations found, requires that a violation be
found against each Respondent and that a remedial order be entered
against each Respondent. I fully agree with General Counsel that,
. . . summary judgment be granted . . . and concluding that
Respondent DHHS violated Section 7116(a)(1) and (5) of the Statute
by establishing a policy, to which Respondent SSA is admittedly
subject, providing that an exclusive representative is not
entitled to home addresses of bargaining unit employees." (Motion
for Summary Judgment, p. 3, paragraph 4).
I further agree with General Counsel that,
" . . . the establishment of such a policy prevented, and is
preventing, Respondent SSA from furnishing the requested
information . . . and that such conduct constitutes interference
with the bargaining relationship between the Charging Party
(Union) and Respondent SSA as alleged in the Complaint." (id.)
Respondent DHHS thereby violated Sections 16(a)(1) and (5) of the
Statute. Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA No.
9, 10 FLRA 26 (1982); Departments of the Army and the Air Force
National Guard Bureau and Montana Air National Guard, 10 FLRA No. 96, 10
FLRA 553 (1982); Department of the Treasury and Internal Revenue
Service, 22 FLRA No. 89, 22 FLRA 821 (1986); Department of Defense
Dependents Schools (Alexandria, Virginia, 27 FLRA No. 72, 27 FLRA 586
(1987).
Although I have found that establishment of a Departmental Policy,
"that an exclusive representative is not entitled to home addresses
under 5 U.S.C. Section 7114(b)(4)", to which policy Respondent SSA was
subject, did prevent Respondent SSA from furnishing the requested names
and home addresses of bargaining unit employees, Respondents
nevertheless denied the allegations of Paragraph 10 of the Complaint,
namely that Respondent DHHS,
" . . . has directed Respondent SSA not to provide to the Charging
Party the information . . . and Respondent DHHS therefore
prevented, and is preventing, Respondent SSA from furnishing the
information. . . . " (Complaint, G.C. Exh. 3, paragraph 10;
Answer, G.C. Exh. 4, paragraph 10).
Respondents did not address the matter in either their Memorandum or
Supplemental Memorandum. However, from the denial that DHHS " . . .
prevented, and is preventing, Respondent from furnishing the information
. . . ", Respondents' clearly infer that, notwithstanding Departmental
Policy, discretion was left to Respondent SSA to grant, or to deny, the
requested names and home addresses. Nor did Respondent SSA in refusing
to comply with the Union's request for the names and home addresses make
any reference whatever to Departmental Policy (G.C. Exh. 6).
Accordingly, to provide full and complete relief, a remedial order must
also be entered against Respondent SSA for its conceded refusal to
furnish the requested names and home addresses in violation of Sections
16(a)(1), (5) and (8) of the Statute. This is not a situation where a
subordinate activity has been directed to take action, Department of the
Interior, Water and Power Resources Service, Grand Coulee Project, Grand
Coulee, Washington, 9 FLRA No. 46, 9 FLRA 385 (1982); nor would finding
that Respondent SSA violated Sections 16(a)(1), (5) and (8) be merely
cumulative but is essential if the unfair labor practice committed is to
be effectively remedied. Cf. United States Department of the Treasury,
Internal Revenue Service and Internal Revenue Service, Austin District,
and Internal Revenue Service, Houston District, 23 FLRA No. 100, 23 FLRA
774 (1986). Here, each Respondent violated the Statute: (a) Respondent
DHHS by establishing a Departmental Policy that an exclusive
representative is not entitled to home addresses which policy
influenced, if it did not require, and Respondents' Answer avers that
Respondent DHHS did not prevent Respondent SSA from furnishing the
requested names and home addresses; and (b) Respondent SSA by refusing
to furnish the requested names and home addresses. Unless both
violations are remedied the unfair labor practice can not be effectively
remedied. Therefore, General Counsel's Motion for Summary Judgment will
be denied to the extent that General Counsel requested summary judgment
be granted in the alternative against either Respondent DHHS or
Respondent SSA, and summary judgment is hereby granted against both
Respondents. Respondents' Cross-Motion for Summary Judgment is denied.
Having found that Respondent DHHS violated Sections 16(a)(1) and (5)
and the Respondent SSA violated Sections 16(a)(1), (5) and (8) of the
Statute, it is recommended that the Authority adopt the following:
Pursuant to Section 2423.29 of the Authority's 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 Department of Health
and Human Services and the Social Security Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request to American
Federation of Government Employees, AFL-CIO, Local 3610, the
exclusive representative of its employees, the names and home
addresses of all bargaining unit employees in the Office of
Hearings and Appeals, Region 3.
(b) In any like or related manner interfering with, restraining
or coercing their 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) Respondent Department of Health and Human Services shall
forthwith withdraw its Departmental Policy that an exclusive
representative is not entitled to home addresses under 5 U.S.C.
Section 7114(b)(4).
(b) Respondent Social Security Administration will furnish the
names and home addresses of all bargaining unit employees as
requested by American Federation of Government Employees, AFL-CIO,
Local 3610.
(c) Post at the facilities of Social Security Administration,
Office of Hearings and Appeals, Region 3, 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 Secretary, Department of Health and Human Services and by the
Commissioner, Social Security Administration, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal
Labor Relations Authority, 26 Federal Plaza, Room 3700, New York,
New York 10278, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
/s/ William B. Devaney
Administrative Law Judge
Dated: September 4, 1987
Washington, D.C.
(*) 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)(8) will be referred to,
simply, as "Section 16(a)(8)".
WE HAVE BEEN FOUND GUILTY OF UNFAIR LABOR PRACTICES by the Federal
Labor Relations Authority. We have been ordered to post this Notice and
to abide by its provisions.
WE WILL NOT fail or refuse to furnish, upon request, to American
Federation of Government Employees, AFL-CIO, Local 3610, the exclusive
representative of our employees, the names and home addresses of all
bargaining unit employees in the Office of Hearings and Appeals, Region
3.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL FORTHWITH WITHDRAW the Departmental Policy that an exclusive
representative is not entitled to home addresses under 5 U.S.C. Section
7114(b)(4).
WE WILL FURNISH the names and home addresses of all bargaining unit
employees as requested by American Federation of Government Employees,
AFL-CIO, Local 3610.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Dated: . . . By: (Secretary)
SOCIAL SECURITY ADMINISTRATION
Dated: . . . By: (Commissioner)
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 II,
whose address is: 26 Federal Plaza, Room 3700, New York, New York
10278, and whose telephone number is: (212) 264-4934.
29 FLRA NO. 110
SSA, Region IX and AFGE, Council 147 (Perea, Arbitrator), Case No.
0-AR-1396, (Decided October 30, 1987)
7122(a)
ARBITRATION AWARDS, MODIFIED
LAW, AWARD CONTRARY TO
5 U.S.C. 5335(a)
5 U.S.C. 5596 (BACK PAY ACT)
ARBITRATION EXCEPTIONS, AWARD:
LAW, AWARD CONTRARY TO
5 U.S.C. 5596 (BACK PAY)
ARBITRATION, REMEDIES ORDERED BY ARBITRATORS
COMPENSATION AND OTHER MONEY RELATED MATTERS
BACKPAY
WITHIN-GRADE INCREASE
BACKPAY
CRITERIA FOR BACKPAY
"BUT FOR" TEST
The exceptions to the arbitration award contended that the award was
contrary to 5 U.S.C. sec. 5335(a) and the Back Pay Act, 5 U.S.C. sec.
5596. The Authority agreed and struck that portion of the award that
ordered the grievant a retroactive within-grade increase and to be made
whole for all loss of salary and fringe benefits lost as a result of
withholding of the within-grade increase. In so concluding, the
Authority reviewed the requirements for an award of backpay to be
authorized under the Back Pay Act. The Authority then found that in the
instant case, while the Arbitrator found that the Activity had violated
the collective bargaining agreement, he did not find that but for the
violation of the agreement in not providing the grievant with at least
60 days to improve, the grievant's work otherwise would have been
determined to have been at an acceptable level of competence, and the
grievant would have been granted the within-grade increase.
Case No. 0-AR-1396
SOCIAL SECURITY ADMINISTRATION, REGION IX
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 147
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Kenneth A. Perea 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. We find that the
award is deficient.
As it pertains to the Agency's exceptions, the dispute in this case
concerns the Activity's denial of the within-grade increase of the
grievant. As to this aspect of the dispute, the parties submitted to
arbitration the issue of whether the denial was in accordance with law,
regulation and the parties' collective bargaining agreement. The
Arbitrator determined that the increase had been improperly denied. The
Arbitrator found that after management notified the grievant that he was
not performing at an acceptable level of competence (the negative
determination), he was not provided with a minimum of 60 days to improve
as required by the collective bargaining agreement before the
within-grade increase was denied. Accordingly as his award, the
Arbitrator ordered as follows:
4. SSA shall immediately grant (the grievant) a Within-Grade
Increase retroactive to November 26, 1983, and make him whole for
all loss of salary and other fringe benefits lost as a result of
withholding his Within-Grade Increase.
The Agency contends that the award is contrary to 5 U.S.C. Section
5335(a) and the Back Pay Act, 5 U.S.C. Section 5596. /*/
We conclude that the award is contrary to 5 U.S.C. Section 5335(a)
and the Back Pay Act.
In order for an award of backpay to be authorized under the Back Pay
Act, there must be not only a determination that the aggrieved employee
was affected by an unwarranted personnel action, but also a
determination that such unwarranted action directly resulted in the
withdrawal or reduction in the pay, allowances, or differentials that
the employee would otherwise have earned or received. For example,
Social Security Administration and Local 1760, American Federation of
Government Employees, AFL-CIO, 17 FLRA 1063, 1064 (1985). In addition,
with respect to the denying or withholding of a within-grade increase,
the Authority has recognized under 5 U.S.C. Section 5335(a) that in
order for an employee to be entitled to the increase, the work of the
employee must be determined to be at an acceptable level of competence.
Social Security Administration, 17 FLRA at 1064. Thus, in order for an
award by an arbitrator of a retroactive within-grade increase to be
authorized, the arbitrator must find that agency action in connection
with the withholding or denying of the increase was unwarranted and that
but for the unwarranted action, the grievant would have received the
within-grade increase. The arbitrator must find either that the
negative determination was not sustained or that due to some action or
inaction on the part of the agency, the work of the grievant was
determined not to be at an acceptable level of competence when it
otherwise would have been. Id.
Although the Arbitrator found that the Activity had violated the
parties' collective bargaining agreement, he did not make the findings
necessary for awarding a retroactive within-grade increase. He did not
invalidate the negative determination. More particularly, he did not
find that but for the violation of the agreement in not providing the
grievant with at least 60 days to improve, the grievant's work otherwise
would have been determined to have been at an acceptable level of
competence, and the grievant would have been granted the within-grade
increase. Accordingly, the Arbitrator's awarding of a retroactive
within-grade increase is deficient and must be struck from the award.
For these reasons, paragraph 4 is struck from the award.
Issued, Washington, D.C., October 30, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) In view of our decision, it is unnecessary to address the other
Agency exception.
29 FLRA NO. 109
Army Plant Representative Office, Bell Helicopter Textron, Fort
Worth, Texas and Local 1475, AFGE (Allen, Arbitrator), Case No.
0-AR-1420, (Decided October 30, 1987)
7122(a)
ARBITRATION EXCEPTIONS, ARBITRATOR:
ARBITRATOR ERRED BY:
ISSUES: FAILING TO ADDRESS ISSUE BEFORE HIM
NOT MEETING CONTRACTUAL TIME LIMITS
The Authority denied the exceptions to the Arbitrator's award,
finding that grounds for review had not been established, rejecting the
arguments that the award was deficient because the Arbitrator failed to
address the claimed violation of a provision of the agreement and
because the Arbitrator failed to issue his decision within 30 days as
required by the parties' agreement.
Case No. 0-AR-1420
U.S. ARMY PLANT REPRESENTATIVE OFFICE, BELL HELICOPTER TEXTRON, FORT
WORTH, TEXAS
Activity
LOCAL 2475, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
Union
This matter is before the Authority on exceptions to the award of
Arbitrator A. Dale Allen, Jr., 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. We deny the
exceptions.
Two grievances were filed and submitted together to arbitration on
the issues of whether the Activity properly assigned duties involving
evaluating contractor estimates and inspecting first aid kits and fire
extinguishers to quality assurance specialists. The Arbitrator denied
the grievances. He found that the Statute, the language of the parties'
collective bargaining agreement, the job description of the specialist
position and the past practice of the parties all permitted the
assignment of the disputed duties.
In its exceptions the Union contends that the award is deficient
because the Arbitrator failed to address in his award the claimed
violation of Article III, Section 3 of the collective bargaining
agreement. The Union also contends that the Arbitrator failed to issue
his decision within 30 days as required by the collective bargaining
agreement.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute: specifically, 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. See, for example, U.S. Bureau of Prisons
and American Federation of Government Employees, Local 3696, 10 FLRA 51
(1982) (An arbitrator does not need to discuss specific agreement
provisions involved and the fact that the opinion accompanying the award
does not mention such provisions does not establish that the arbitrator
did not rule on them. Consequently, an exception contending that an
award is deficient because the arbitrator failed to address a specific
agreement provision provides no basis for finding an award deficient.);
Corps of Engineers, U.S. Army Engineer District, New Orleans, Louisiana
and National Federation of Federal Employees, Local 1124, 17 FLRA 315
(1985) (an exception claiming after an award is issued that the award is
deficient because it was not issued within an applicable time period
provides no basis for finding an award deficient).
Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 108
Marine Corps Logistics Base, Barstow, California and AFGE, Local 1482
(Francis, Arbitrator), Case No. 0-AR-1408, (Decided October 30, 1987)
7122(a)
ARBITRATION EXCEPTIONS, AWARD:
LAW, AWARD CONTRARY TO
5 U.S.C. 5542(b)(2)(B)
29 U.S.C. 201
OVERTIME
LABOR-MANAGEMENT ACTIVITIES
The Authority denied the exceptions to the Arbitrator's award, which
alleged that the part of the award denying the payment of overtime to
the grievant for attendance at a national labor-management meeting was
contrary to law, rule and regulation, specifically 5 U.S.C. section 5542
(b)(2)(B) and 29 U.S.C. section 201. The Authority found no basis for
review established, the arguments constituting nothing more than
disagreement with the Arbitrator's interpretation and application of the
parties' agreement.
Case No. 0-AR-1408
MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Edna E. J. Francis 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. For the reasons
stated below, the Union's exceptions are denied.
The Union filed a two-part grievance alleging that the Activity
violated various articles of the parties' agreement. The first aspect
of the grievance alleged that the Activity improperly deducted an
overpayment of travel money from the grievant's paycheck. The second
aspect alleged that the Activity violated the parties' agreement by not
allowing the grievant overtime for his attendance as a Union
representative at a national labor-management relations committee
meeting that continued beyond his normal duty hours. It also alleged
that the grievant was entitled to travel and per diem expenses for his
trip to and from the meeting.
The grievance was submitted to arbitration. As to the first aspect,
the Arbitrator found that it encompassed two areas of dispute: (1)
whether an unfair labor practice charge previously filed by the Union
barred the grievance, and (2) if not, whether the Activity violated the
grievant's rights by failing to treat its overpayment to the grievant as
an indebtedness matter. The Arbitrator found that no bar existed to the
filing of the grievance in this case. On the merits of the first issue,
the Arbitrator found that the record lacked evidence to support the
grievant's claim that the overpayment should be treated as an
indebtedness, and she denied this aspect of the grievance.
As to the second aspect, the Arbitrator determined that it was clear
from the parties' agreement that official time for meetings would be
granted only for the period of time that the employee was in a duty
status and that no other costs would be assumed by the Activity. Thus,
she concluded that the grievant was not entitled under the parties'
agreement to overtime or travel and per diem expenses and she denied
this aspect of the grievance.
The Union contends that the part of the award denying the payment of
overtime to the grievant for attendance at a national labor-management
meeting is contrary to law, rule and regulation, specifically 5 U.S.C.
Section 5542(b)(2)(B) and 29 U.S.C. Section 201.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, that the award is contrary to
law, rule, or regulation or that the award is deficient on other grounds
similar to those applied by Federal courts in private sector
labor-management relations. The Union's arguments constitute nothing
more than disagreement with the Arbitrator's interpretation and
application of the parties' agreement. We consistently have held that
such disagreement provides no basis for finding an award deficient.
See, for example, U.S. Army Corps of Engineers, Kansas City District and
National Federation of Federal Employees, Local 29, 22 FLRA No. 15
(1986). See also Warner Robins Air Logistics Center, Warner Robins,
Georgia and American Federation of Government Employees, Local 987, 23
FLRA No. 35 (1986) (union exception was denied where arbitrator
determined that a union representative was not entitled to overtime
compensation for the time he attended a meeting that was scheduled after
his workday had ended). Accordingly, the Union's exceptions are denied.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 107
SSA, Mid-America Program Service Center, Kansas City, Missouri and
AFGE, Local 1336 (Moore, Arbitrator), Case No. 0-AR-1378, (Decided
October 30, 1987)
7122(a)
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
NO BASIS FOR GRANTING RECONSIDERATION
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
The Authority denied the request for reconsideration, finding that no
extraordinary circumstances had been established, the arguments
presented constituting nothing more than disagreement with the earlier
decision that the Authority lacked jurisdiction over the exceptions.
Case No. 0-AR-1378 (28 FLRA No. 122)
SOCIAL SECURITY ADMINISTRATION, MID-AMERICA PROGRAM SERVICE CENTER,
KANSAS CITY, MISSOURI
ACTIVITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336
Union
This matter is before the Authority on a request filed by the Union
seeking reconsideration of the Authority's Order Dismissing Exceptions,
28 FLRA No. 122, September 15, 1987. In that order, we dismissed the
Union's exceptions to an award of Arbitrator Preston J. Moore because
the award related to a matter, the 20-day suspension of Reginald T.
Huey, described under section 7121(f) of the Statute and therefore was
outside our jurisdiction under section 7122(a).
In its request for reconsideration, the Union argues that the matter
before the Arbitrator included more than the suspension of Huey. The
Union contends that the Arbitrator should also have addressed the
question of denial of official time for other Union stewards and
officers because that issue was included in the original grievance being
arbitrated. The Union maintains that the Authority should reconsider
its decision and remand the case to the Arbitrator for a decision on the
official time issue.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to request
reconsideration of a decision of the Authority. Here, however, we
conclude that the Union has not established "extraordinary
circumstances" within the meaning of section 2429.17. As we noted in
our Order Dismissing Exceptions, the issue stated by the Arbitrator in
his award was whether Huey's suspension for 20 days was for just cause.
The arguments presented by the Union in support of its request
constitute nothing more than disagreement with our decision that we
lacked jurisdiction over the exceptions in this case.
Accordingly, the Union's request for reconsideration is denied.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 106
VA Administration, Amarillo, Texas and NFFE, Local 1138 (Taylor,
Arbitrator), Case No. 0-AR-1433, (Decided October 30, 1987)
7122(a)
ARBITRATION EXCEPTIONS, ARBITRATOR:
ARBITRATOR FAILED TO CONDUCT A FAIR HEARING
BIAS AND/OR HOSTILE, ARBITRATOR WAS
ARBITRATION, NO BASIS FOR REVIEW
CONTRACT INTERPRETATION, DISAGREEMENT WITH ARBITRATOR
FINDINGS OF FACT, DISAGREEMENT WITH ARBITRATOR'S
REASONING AND CONCLUSIONS, DISAGREEMENT WITH ARBITRATOR
The Authority denied the exceptions to which alleged that the
Arbitrator was biased and "did not use the evidence as presented and
deviated from the issue at hand in deciding the award." The Authority
concluded that grounds for review had not been established, noting that
exceptions which merely attempt to relitigate the merits of the case and
constitute nothing more than disagreement with the arbitrator's findings
of fact, his reasoning and conclusions, and his interpretation and
application of the parties' agreement, provide no basis for finding the
award deficient.
Case No. 0-AR-1433
VETERANS ADMINISTRATION, AMARILLO, TEXAS
Activity
NFFE, LOCAL 1138
Union
This matter is before the Authority on an exception to the award of
Arbitrator Robert L. Taylor 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. For the reasons
stated below, the Union's exception is denied.
The grievant, a medical technician in the hospital laboratory at the
Veterans Administration, Amarillo, Texas, misspelled a patient's surname
on the "CAUTION ALERT" tags attached to three units of blood and on the
Blood Bank Log. The hospital's procedures require that the medical
technician and the nurse securing the blood from the blood bank check
several pieces of information, including the patient's name, prior to
release of the blood for transfusion. Neither the medical technician
nor the nurse who secured the first unit of blood noticed the
misspelling. The error was discovered by another nurse who was to start
the patient's second transfusion. Because the grievant had a record of
two recent failures to follow hospital procedures, the Activity gave him
a 10-day suspension.
The suspension was submitted to arbitration. Before the Arbitrator,
the Union argued that the suspension was unwarranted because the
misspelling of the patient's name was merely a clerical error and not a
breach of hospital procedures. The Arbitrator found that the suspension
was justified and denied the grievance.
As its exception, the Union contends that the Arbitrator was biased
and "did not use the evidence as presented and deviated from the issue
at hand in deciding the award." Union's Exception at 1. The Agency
asserts that the Union's exception fails to meet any of the grounds for
appeal of an arbitrator's award.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, 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. See, for example, Federal Correctional
Institution, Petersburg, Virginia and American Federation of Government
Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983)
(exceptions, which merely attempt to relitigate the merits of the case
before the Authority and constitute nothing more than disagreement with
the arbitrator's findings of fact, his reasoning and conclusions, and
his interpretation and application of the parties' agreement, provide no
basis for finding the award deficient).
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 105
Association of Civilian Technicians and Pennsylvania National Guard
(Quinn, Arbitrator), Case No. 0-AR-1298, (Decided October 30, 1987)
7106(a)(1)
7106(a)(2)(C)
7122(a)
ARBITRATION EXCEPTIONS, ARBITRATOR:
ARBITRATOR EXCEEDED HIS AUTHORITY
DETERMINING A NEGOTIABILITY ISSUE
ARBITRATION EXCEPTIONS, AWARD:
FSLMR STATUTE, AWARD CONTRARY TO THE
7106(a)(1)
7106(a)(2)(C)
ARBITRATION AWARDS, REMEDIES
PROMOTION
REPRESENTATION
APPOINTMENTS, SELECTION FOR
POSITIONS, FILLING OF
LIMITATIONS ON SELECTION
ORGANIZATION, DETERMINATION OF, MANAGEMENT RIGHT
POSITION
PROMOTION
MERIT PROMOTION PLAN
The Authority denied the exceptions to the Arbitrator's award,
rejecting contentions:
- The Arbitrator exceeded his statutory authority by deciding that
the disputed position was part of the bargaining unit and was required
to be posted in accordance with the merit promotion procedures of the
collective bargaining agreement. The Authority found that in
determining that the disputed position was encompassed by the negotiated
merit promotion plan, he was resolving an issue collateral to the
grievance properly brought under the grievance procedure of whether the
position should have been posted.
- The award violated management's right to determine the skills and
qualifications necessary for the disputed position by ruling on the
adequacy of the skills and qualifications of the person selected for the
position by management. In the Authority's view the award simply
required the Agency to comply with the agreement procedures applicable
to filling positions in the unit.
- The award conflicts with management's right to determine its
organization under section 7106(a)(1) and management's right to select
under section 7106(a)(2)(C). The Authority found that the Arbitrator
had merely found that the parties had negotiated a merit promotion plan
which encompassed the position in dispute and appropriately directed the
Agency to meet its negotiated obligation, including posting the vacancy.
Case No. 0-AR-1298
ASSOCIATION of CIVILIAN TECHNICIANS
Union
PENNSYLVANIA NATIONAL GUARD
Agency
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. /*/ We deny the
Agency's exceptions.
A grievance was filed by four civilian technicians and submitted to
arbitration. The issue concerned the arbitrability and the merits of
whether the Agency violated the parties' collective bargaining agreement
and pertinent agency regulations when it failed to post the position of
aircraft pneudraulic system mechanic and filled it with an Active
Guard/Reserve (AGR) status employee. The Arbitrator determined that the
dispute was arbitrable and that the Agency violated the collective
bargaining agreement and agency regulations by failing to post the
position in question. Accordingly, as his award, he sustained the
grievance and directed that the position should be posted in accordance
with the procedure set forth in the collective bargaining agreement and
agency regulation.
A. Contentions
The Agency contends that the Arbitrator exceeded his statutory
authority by deciding that the disputed position was part of the
bargaining unit and was required to be posted in accordance with the
merit promotion procedure of the collective bargaining agreement. The
Agency maintains that the Arbitrator decided the question of the
bargaining-unit status of the disputed position which under section
7105(a)(2) can only be decided by the Authority.
B. Analysis and Conclusions
Where the bargaining-unit status of a position or individual is a
collateral issue to a grievance otherwise properly brought under the
negotiated grievance procedure, an arbitrator is not prohibited by
section 7105 from addressing the issue. National Archives and Records
Service, General Services Administration and Local 2578, American
Federation of Government Employees, 9 FLRA 381, 383 (1982). In
addition, the Authority indicated in American Federation of Government
Employees, AFL-CIO and Equal Employment Opportunity Commission, 15 FLRA
283 (1984) that in determining whether a negotiated merit promotion plan
encompassed only bargaining-unit positions or extended to supervisory
positions, the arbitrator was interpreting and applying the collective
bargaining agreement in resolving whether the agency had met its
negotiated obligations. Thus, we find that in determining that the
disputed position was encompassed by the negotiated merit promotion
plan, the Arbitrator was resolving an issue collateral to the grievance
properly brought under the negotiated grievance procedure of whether the
position should have been posted. Accordingly, this exception provides
no basis for finding the award deficient.
A. Contentions
The Agency contends that the award violates section 7106(a)(2)(A) of
the Statute. Specifically, the Agency maintains the Arbitrator violated
management's right to determine the skills and qualifications necessary
for the disputed position by ruling on the adequacy of the skills and
qualifications of the person selected for the position by management.
B. Analysis and Conclusions
We find that the Agency has misinterpreted the award. In our view,
the Arbitrator's award simply requires the Agency to comply with the
procedure in the collective bargaining agreement applicable to filling
positions in the bargaining unit. Although the Arbitrator commented on
the qualifications of the selected employee in response to an argument
of the Agency, his award contains no qualification determination as
alleged by the Agency. Consequently, this exception provides no basis
for finding the award deficient.
A. Contentions
In its remaining exceptions the Agency contends the award conflicts
with management's right to determine its organization under section
7106(a)(1) and management's right under section 7106 (a)(2)(C) of the
Statute in filling positions to select from any appropriate source.
B. Analysis and Conclusions
We conclude that the award in no manner interferes with the rights of
management under section 7106(a) of the Statute. Like the arbitrator in
EEOC, 15 FLRA 283, the Arbitrator in this case has merely found that the
parties have negotiated a merit promotion plan which encompasses the
position in dispute and has appropriately directed the Agency to meet
its negotiated obligations, including the posting of the vacancy.
Contrary to the Agency's exceptions, as indicated in National Treasury
Employees Union, Chapter 55 and Internal Revenue Service, Columbia
District, Columbia, South Carolina, 15 FLRA 820, 823 (1984) (Proposals 5
and 6), such enforcement of the collective bargaining agreement
preserves the discretion inherent in management's rights to assign
employees, assign work, and to make selections under section
7106(a)(2)(C). We similarly find, contrary to the arguments of the
Agency, that the award preserves management's discretion to establish
its organizational structure. Consequently, these exceptions provide no
basis for finding the award deficient.
Accordingly, the Agency's exceptions are denied.
Issued, Washington, D.C., October 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) On May 22, 1987, we rescinded our Order dismissing the Agency's
exceptions as untimely filed and we reopened the case for further
processing. 27 FLRA No. 16.
29 FLRA NO. 104
VA Administrative Medical Center, Prescott, Arizona and AFGE, Local
2401, Case No. 8-CU-70005, (Decided October 30, 1987)
7106(a)(2)(B)
APPROPRIATE UNITS
CONSIDERATIONS WHEN MAKING DETERMINATIONS
DUTIES, ACTUAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY
NOT PERSONNEL WORK
REPRESENTATION PROCEDURE
COMPELLING REASONS FOR GRANTING REVIEW
NO BASIS FOR GRANTING REVIEW
DISAGREEMENT WITH FINDINGS OF REGIONAL DIRECTOR
LEGAL ERRORS BY REGIONAL DIRECTOR
PUBLIC POLICY ERRORS OF REGIONAL DIRECTOR
The Authority denied an application for review of a Clarification of
Unit decision by the Regional Director finding there was insufficient
evidence to establish that employees occupying positions of Personnel
Staffing Assistant and Personnel Actions Clerks were engaged in Federal
personnel work in other than a purely clerical capacity within the
meaning of section 7112(b)(3) of the Statute. In so finding, the
Authority found:
No substantial question of law or policy is raised by reason of an
absence of Authority precedent where an employee at the time of the
hearing has not actually performed the full range of duties in the
position description. An eligibility determination is not based on
evidence such as written position descriptions or testimony as to what
duties had been or would be performed by an employee occupying a certain
position because such evidence might not reflect the actual duties
performed by the incumbent employee. The Authority bases a bargaining
unit eligibility determination on record testimony as to what duties
actually are performed by an employee at the time of the hearing rather
than what may exist in the future.
No substantial question of law or policy is raised by reason of a
departure from Authority precedent, noting that the application for
review expresses mere disagreement with the Regional Director's findings
which are based on record evidence and had not shown such findings to be
clearly erroneous or to have prejudicially affected the rights of any
party.
The argument concerning errors by the Regional Director in matters of
law and questions of public policy are not grounds for granting an
application for review under section 2422.17(c) of the Authority's
regulations. The Authority may grant an application for review only
where a compelling reason exists based on the four specific grounds set
forth in section 2422.17(c).
Case No. 8-CU-70005
VETERANS ADMINISTRATION MEDICAL
CENTER, PRESCOTT, ARIZONA
Activity
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2401, AFL - CIO
Union/Petitioner
This case is before the Federal Labor Relations Authority on an
application filed by the Activity under section 2422.17(a) of the
Authority's Rules and Regulations seeking review of the Regional
Director's Decision and Order on the Union's Petition for Clarification
of Unit.
The Union's petition seeks to clarify the composition of the national
consolidated nonprofessional unit located at the Veterans Administration
Medical Center in Prescott, Arizona to include two employees occupying
the positions of Personnel Staffing Assistant (Typing), GS-4-0203, and
Personnel Actions Clerk (Typing), GS-5-0203.
The Regional Director concludes that the employees in these positions
should be in the bargaining unit. He finds that there is insufficient
evidence to establish that they are engaged in Federal personnel work in
other than a purely clerical capacity within the meaning of section
7112(b)(3). He finds that their involvement in personnel matters is
purely clerical in nature in that they perform their duties within
prescribed guidelines and regulations which require little, if any,
independent discretion or judgment. In support of this determination,
the Regional Director cites United States Environmental Protection
Agency, Region III, 11 FLRA 354 (1983); and Headquarters, Fort Sam
Houston, Fort Sam Houston, Texas, 5 FLRA 339 (1981). He notes that his
determination regarding the Personnel Staffing Assistant position is
based on the nature of the actual duties performed at the time of the
hearing on the petition rather than on position titles or anticipated
performance of duties citing Federal Trade Commission, 15 FLRA 247
(1984); and Veterans Administration Medical Center, Tucson, Arizona,
Case No. 8-CU-40001 (1984) (unpublished).
The Activity contends that compelling reasons exist, within the
meaning of section 2422.17(c) of the Authority's Rules and Regulations,
for granting the application for review. It argues that the Regional
Director's decision raises a substantial question of law because: 1)
there is an absence of Authority precedent concerning an employee who is
new to a position and has not performed the full range of duties
assigned to the position; and 2) the Regional Director departs from
Authority precedent involving positions with similar duties in
Environmental Protection Agency, Region VIII, Kansas City, Missouri, 14
FLRA 25 (1984) and Defense Mapping Agency, Hydrographic/Topographic
Center, Providence Field Office, 13 FLRA 407 (1983). In addition, the
Activity argues the Regional Director erred as to a matter of law
because: 1) including the disputed positions in the bargaining unit
interferes with management's right to assign work under section
7106(a)(2)(B) in that substantive personnel duties will have to be
performed by bargaining unit members; and 2) determining what percent
of the duties actually performed by these employees involves substantive
personnel work conflicts with the language of section 7122(b)(3) because
"engaged in personnel work in other than a purely clerical capacity"
means performing any substantive personnel work and does not mean a
specified amount. Finally, the Activity contends that allowing the
Regional Director's decision to stand will generate multiple
clarification of unit petitions, which is against public policy.
We conclude that no compelling reasons exist within the meaning of
section 2422.17(c) for granting the Activity's application for review.
In particular, we find that no substantial question of law or policy is
raised by reason of an absence of Authority precedent where an employee
at the time of the hearing has not actually performed the full range of
duties in the position description. Authority precedent clearly
establishes that a bargaining unit eligibility determination is not
based on evidence such as a written position description or testimony as
to what duties had been or would be performed by an employee occupying a
certain position because such evidence might not reflect the actual
duties performed by the incumbent employee. Department of the Treasury,
Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52, 53 (1981).
The Authority bases a bargaining unit eligibility determination on
record testimony as to what duties actually are performed by an employee
at the time of the hearing rather than what may exist in the future.
See Equal Employment Opportunity Commission, Philadelphia District
Office, FLRA Report No. 369 (May 30, 1986) (determination concerning a
vacant position cannot be made as the Authority can only make an
eligibility determination by having before it record testimony by the
incumbent or the incumbent's supervisor as to what duties actually are
performed by the incumbent); U.S. Army Engineer Topographic
Laboratories, Fort Belvoir, Virginia, 10 FLRA 125, 127 n.3 (1982)
(incumbent employees, who were expected to perform certain duties
sometime in the future, were not management officials because they were
not performing such duties at the time of the hearing); Department of
the Navy, Naval Ocean Systems Center, San Diego, California, 8 FLRA 649,
650 n.3 (1982) (wage grade employees included in a bargaining unit with
general schedule employees based on personnel policies and practices
existing at time of the hearing).
We also find that no substantial question of law or policy is raised
by reason of a departure from Authority precedent. In the cases cited
by the Activity as examples of the Regional Director's failure to follow
Authority precedent -- Environmental Protection Agency, Region VIII and
Defense Mapping Agency, Hydrographic/Topographic Center -- the Authority
based its eligibility determinations on record evidence as to the duties
actually performed by incumbents at the time of the hearing and found
that employees in the Personnel Assistant (Typing) position, GS-203-06,
were engaged in nonclerical Federal personnel work. In the present
case, the Regional Director found that there is insufficient record
evidence to establish that the employees in the disputed positions are
engaged in Federal personnel work in other than a purely clerical
capacity. In our view, the Activity expresses mere disagreement with
the Regional Director's findings which are based on record evidence and
has not shown such findings to be clearly erroneous or to have
prejudicially affected the rights of any party.
Finally, the Activity's arguments concerning errors by the Regional
Director in matters of law and questions of public policy are not
grounds for granting an application for review under section 2422.17(c)
of the Authority's regulations. /*/ The Authority may grant an
application for review only where a compelling reason exists based on
the four specific grounds set forth in section 2422.17(c). United
States Department of Justice, Immigration and Naturalization Service,
Western Regional Office, 20 FLRA 70, 75-76 (1985).
The application for review of the Regional Director's decision and
order on the Union's petition for clarification of unit is denied.
Issued, Washington, D.C., October 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) Section 2422.17(c) provides:
(c) The Authority may grant an application for review only where it
appears that compelling reasons exist therefore. Accordingly, an
application for review may be granted only upon one or more of the
following grounds:
(1) That a substantial question of law or policy is raised because of
(i) the absence of, or (ii) a departure from, Authority precedent;
(2) That there are extraordinary circumstances warranting
reconsideration of an Authority policy;
(3) That the conduct of the hearing held or any ruling made in
connection with the proceeding has resulted in prejudicial error; or
(4) That the Regional Director's decision on a substantial factual
issue is clearly erroneous and such error prejudicially affects the
rights of a party.
29 FLRA NO. 103
NAGE, Local R2-98 and Dep't of the Army, Watervliet Arsenal,
Watervliet, N.Y. (Foltman, Arbitrator), Case No. 0-AR-1344, (Decided
October 30, 1987)
7122(a)
ARBITRATION AWARDS, EXCEPTIONS
LAW, AWARD CONTRARY TO
5 U.S.C. 5596 (BACK PAY)
ARBITRATION AWARDS, NO BASIS FOR REVIEW
CONTRACT INTERPRETATION, DISAGREEMENT WITH ARBITRATOR
FINDINGS OF FACT, DISAGREEMENT WITH ARBITRATOR'S
REASONING AND CONCLUSIONS, DISAGREEMENT WITH ARBITRATOR
ARBITRATION AWARDS, REMEDIES
COMPENSATION AND OTHER MONEY RELATED MATTERS
BACKPAY
PROMOTION
RETROACTIVE PROMOTION WITH BACKPAY
BACKPAY
CRITERIA FOR BACKPAY
"BUT FOR" TEST
"UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION"
RETROACTIVE PROMOTION
FEDERAL PERSONNEL MANUAL
SUPPLEMENT 902, SUBCHAPTER S-8, BOOK 550
At issue is the Arbitrator's direction that the Activity promote a
grievant retroactively and pay backpay. In its exceptions the Activity
contended that the award was contrary to the Back Pay Act and
implementing regulations in the Federal Personnel Manual (FPM). The
Office of Personnel Management filed an amicus curiae brief contesting
the appropriateness of backpay under the circumstances of the case.
The Authority noted that in for an award of backpay to be authorized
under the Back Pay Act, an arbitrator must find an unwarranted agency
personnel action directly resulting in the withdrawal or reduction of a
grievant's pay, allowances, or differentials; and that but for such
action, the grievant otherwise would not have suffered such withdrawal
or reduction or pay, allowances, or differentials. In the Authority's
view the essence of the Agency's and OPM'S arguments is that the
Arbitrator failed to establish that an "unjustified or unwarranted
personnel action" occurred in the case. The Authority reviewed all of
the Arbitrator's findings with respect to the failure to promote that
was at issue and found that the Arbitrator, in the circumstances of the
case, satisfied the requirements of the Back Pay Act that an award of
backpay be supported by a finding of an unwarranted or unjustified
personnel action. The Authority, concluding that the Agency's
exceptions and OPM'S supporting arguments merely constitute disagreement
with the Arbitrator's findings of fact, his reasoning and conclusions,
and his interpretation and application of the parties agreement. "It is
well established that such challenges to an Arbitrator's award do not
provide a basis for finding the award deficient."
Case No. 0-AR-1344
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-98
Union
DEPARTMENT OF THE ARMY
WATERVLIET ARSENAL
WATERVLIET, NEW YORK
Activity
This matter is before the Authority on exceptions to the award of
Arbitrator Felician F. Foltman filed by the Department of the Army (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. For the following reasons, we deny the Agency's
exceptions.
In April 1985, the Union filed a grievance contending that two WG-8
employees of the Activity had met the requirements for noncompetitive
promotion to the full performance level in their career ladders and
therefore were entitled to be promoted WG-10 level. After an
investigation at Step II of the grievance procedure, a representative of
the Commanding General of the Activity determined on May 22, 1985, that
the grievants had been working at the WG-10 level for 1 year.
Arbitrator's Award at 12. On May 29, 1985, the Commanding General
directed the promotion of the grievants, concluding that they had been
performing at the WG-10 level as early as May 24, 1984. The Commanding
General also stated: "However, due to recent court decisions,
specifically (Wilson v. United States, 229 Ct. Cl. 510 (1981)), I am not
directing the payment of backpay." Arbitrator's Award at 4.
The Activity promoted the grievants on June 26, 1985. Because of a
clerical delay in processing the promotions, the Activity awarded the
grievants backpay to June 10, 1985. The Union requested that the
grievants be awarded backpay from May 24, 1984 -- the date the Activity
agreed that both grievants were performing at the WG-10 level. The
Activity refused, and the matter was submitted to arbitration.
The Activity contended before the Arbitrator that an award of backpay
would violate the Back Pay Act, 5 U.S.C. & 5596 and further, that the
Back Pay Act does not apply to statutes and regulations governing
promotions which are solely within the Agency's discretion. The
Activity stated that, under Wilson, an employee "illegally detailed to a
higher position to which he had been detailed or misassigned but not
appointed" was not entitled to backpay unless it is mandated or required
by law. Arbitrator's Award at 6.
The Activity conceded before the Arbitrator that it had violated
Article 8, Section 4 (management shall assure that its officials are
aware of their obligation to comply with the parties' agreement);
Article 11 (except as specifically provided in the agreement, nothing
shall alter or supersede existing employee-management practices and
relationships); and Article 32, Section 2 (management shall assure that
employees are treated fairly and equitably) of the parties' agreement by
failing to promote the grievants. However, the Activity contended that
none of the provisions contained a mandate for retroactive promotions.
The Union contended before the Arbitrator that the grievants were in
career ladder positions which entitled them to be noncompetitively
promoted from the WG-8 level to the WG-10 level once they demonstrated
the ability to perform at the higher grade level. According to the
Union, the grievants were therefore never in a temporary assignment or
detail status. The Union argued that since it is undisputed that the
grievants performed for over a year at the WG-10 level, they were
entitled to pay at the higher level from May 28, 1984.
The Arbitrator determined that the grievants were not in a detail
status but in career ladder positions and therefore the Activity's
reliance on Wilson was inappropriate. The Arbitrator found that the
Activity's Commanding General determined after an investigation by his
representative that the grievants had been working at the WG-10 level
for 1 year.
The Arbitrator stated that the formal vacancy announcements
concerning the grievants' positions provided that the grievants would be
promoted "almost automatically without further competition to a WG-10
level upon demonstrated full performance." Arbitrator's Award at 11.
The Arbitrator relied on the Activity's finding and the testimony of the
grievants' supervisor -- to the effect that the grievants had been
working at the WG-10 level for over a year -- as evidence of the
grievants' full performance and as an acknowledgment that the grievants
could have been promoted retroactively. Based on these findings, the
Arbitrator also found that "the grievants were not receiving fair and
equitable treatment as required in Section 2 Article 32 when they
received Grade 8 level pay while performing at an acknowledged Grade 10
level." Id. at 13.
The Arbitrator concluded that "(t)here is a preponderance of evidence
in the record to suggest that the grievants could have and should have
been promoted on May 28, 1984 . . . . (and that) the contract was
violated as charged by the Union." Id. at 13-14. The Arbitrator also
found that the Commanding General acknowledged that the failure to
promote the grievants was improper and contrary to the collective
bargaining agreement. In short, the Arbitrator found that the Agency's
failure to timely promote the grievants was unwarranted under the
contract.
The Arbitrator determined further that the Activity had established a
past practice, during the term of the parties' agreement, of providing
backpay for untimely promotions and misassignments and had, in the
instant case, provided retroactive pay to the grievants for a period of
16 days. The Arbitrator concluded therefore that inasmuch as the
Activity had conceded that the grievants' promotions were untimely and
that it had violated several articles of the collective bargaining
agreement, including an article which binds the Activity to its past
practices, the Activity's argument that it could not provide backpay in
this case was without merit. The Arbitrator held that the Commanding
General improperly denied backpay when he directed the promotion of the
grievants.
As his award, the Arbitrator directed the Activity to promote the
grievants retroactively to May 28, 1984, and awarded backpay from that
date to June 10, 1985.
The Agency contends that the Arbitrator's award is contrary to law,
rule, and regulation -- specifically, the Back Pay Act and implementing
regulations in Federal Personnel Manual (FPM) Supplement 990-2, Book
550, Subchapter S-8. The agency argues that a necessary element to
support an award of backpay -- an "unjustified or unwarranted personnel
action" -- is absent in this case. The Agency argues on this point that
the Arbitrator had two bases for determining that an unjustified or
unwarranted personnel action had occurred, and neither supports his
award of backpay.
First, the Agency contends that even if the grievants were improperly
detailed or misassigned (a finding which the Arbitrator did not make),
the grievants are not entitled to backpay. The Agency also contends
that the second basis -- that the grievants should have been promoted
because they were in career ladder positions and therefore were entitled
to noncompetitive promotions to the WG-10 level -- also does not warrant
backpay because a properly authorized official did not approve the
promotions. The Agency contends that the career ladder promotions were
not mandated but instead required further discretionary approval by
management, and that further discretionary approval (approval by the
Civilian Personnel Officer of the supervisor's Standard Form (SF) 52
request for the promotion of the grievants) was not accomplished. In
sum, the Agency contends that the award of backpay should be set aside
because "there are no nondiscretionary administrative, regulatory, or
collective bargaining agreement provisions which would have required the
promotion of the grievants." Agency's Exceptions at 10.
The Union states that the Arbitrator concluded, based on the parties'
agreement, that the grievants' promotions should have occurred on May
28, 1984, rather than June 24, 1985. The Union rejects the Agency's
argument that the execution of an SF-52 form is required in determining
whether a promotion is effective. In essence, the Union contends that
the Agency is simply requesting the Authority to substitute its judgment
for that of the Arbitrator in interpreting the provisions of the
parties' collective bargaining agreement.
In support of the Agency's exceptions and contentions, OPM argues in
its amicus curiae brief that the award of retroactive promotions with
backpay is contrary to the Back Pay Act and implementing regulations in
the Federal Personnel Manual. Specifically, OPM argues that if the
basis for the Arbitrator's award is his determination that the grievants
were improperly detailed or misassigned, such a finding would not, by
itself, support an entitlement to retroactive promotion or backpay. OPM
also argues that even if the award is not based on a misassignment or
extended detail, but rather on the finding that the grievants have been
performing at the full performance level of their career-ladder,
retroactive promotion and backpay are not authorized.
OPM states that performance at the full performance level in a career
ladder position does not entitle an employee to a career ladder
promotion unless the action has been approved by a properly authorized
official. OPM asserts that the first line supervisor, who testified
that the grievants had been performing at the higher-graded level, did
not have approving authority and that approval by a properly authorized
official cannot be found on the basis of the evidence before the
Arbitrator. OPM also contends that in a career ladder situation,
backpay is warranted only if an agency's failure to promote an employee
constitutes a violation of a nondiscretionary policy or collective
bargaining agreement provision.
The Union filed a response to OPM'S brief. The Union stated that the
grievants' supervisor knew on May 28, 1984, that the grievants were
performing at the WG-10 level and that if the supervisor had submitted
timely SF-50'S requesting the noncompetitive promotion of each grievant
at that time, as he should have, an approving official of the Civilian
Personnel Office would have routinely executed a form effectuating the
request.
In order for an award of backpay to be authorized under the Back Pay
Act, an arbitrator must find that an unwarranted agency personnel action
directly resulted in the withdrawal or reduction of a grievant's pay,
allowances, or differentials; and that but for such action, the
grievant otherwise would not have suffered such withdrawal or reduction
of pay, allowances, or differentials. See, for example, Department of
the Army, New Cumberland Army Depot and American Federation of
Government Employees, Local 2004, 21 FLRA No. 113 (1986) (second
exception); U.S. Army Aberdeen Proving Ground and Local 2424,
International Association of Machinists and Aerospace Workers, AFL-CIO,
19 FLRA 258 (1985). Neither the Agency nor OPM has established that the
Arbitrator's award in this case is inconsistent with the Back Pay Act.
The essence of the Agency's and OPM'S arguments is that the
Arbitrator failed to establish that an "unjustified or unwarranted
personnel action" occurred in this case. As set forth above, both claim
that neither of the two possible bases for concluding that there was an
unjustified or unwarranted personnel action -- that is, (1) the
grievants were improperly detailed or misassigned or (2) the grievants
were entitled to retroactive noncompetitve promotions because they were
in career ladder positions -- exists in this case. We find that the
Arbitrator's award has not been shown to be contrary to the Back Pay
Act.
As to the first contention that any improper detail or misassignment
of the grievants does not support an award of backpay, we conclude that
this contention does not demonstrate that the award is deficient under
the Statute. The Arbitrator agreed with the Union and found that the
grievants had not been detailed. His award is not based on a theory of
an improper detail or misassignment. Therefore, the Agency's and OPM'S
arguments before us on that issue provide no basis for finding the award
of backpay to be improper.
To the extent that the Agency and OPM contend that the Arbitrator
should have found that the grievants were improperly detailed or
misassigned, such an argument constitutes nothing more than mere
disagreement with the Arbitrator's findings of fact and his
interpretation of the provisions in the parties' collective bargaining
agreement concerning "details." Such disagreement is not a basis for
finding the Arbitrator's award deficient on any statutory ground. See
Overseas Federation of Teachers and Department of Defense Dependents
Schools, Mediterranean Region, 26 FLRA No. 43 (1987); American
Federation of State County and Municipal Employees, Local 2478, AFL-CIO
and U.S. Commission on Civil Rights, 26 FLRA No. 17 (1987) (first
exception). In light of the Arbitrator's finding that the grievants
were not detailed, we need not address the Agency's and OPM'S arguments
concerning retroactive promotion and backpay (including the alleged
applicability of FPM Supp. 990-2, Book 550, S-8-3) when an employee is
improperly detailed.
We now turn to the second possible basis on which to find an
unwarranted or unjustified personnel action in this case -- the argument
that the grievants were entitled to retroactive noncompetitive
promotions because they had met the requirements in their career ladder
positions to the WG-10 level upon demonstrated full performance at that
level, and further concluded that the Activity's failure to promote them
at that time constituted an unwarranted or unjustified personnel action
within the meaning of the Back Pay Act.
We have held, in similar circumstances, that an award of retroactive
promotion and backpay was authorized under the Back Pay Act where an
arbitrator found that an agency failed to promote employees in career
ladder positions on their eligibility date in violation of the
collective bargaining agreement and that, but for the violation, the
grievants would have been promoted at the appropriate time. U.S.
Department of Labor, the parties' contract provided that employess could
be promoted in their career ladder once they demonstrated the ability to
perform at the higher level. The grievants' supervisors had not
promoted them even though they had demonstrated the ability to perform
at the higher level. The Arbitrator ruled that the agency's failure to
promote the grievants was arbitrary and capricious and in violation of
the collective bargaining agreement.
In this case, the Arbitrator found that the formal vacancy
announcements concerning the grievants' positions provided that the
grievants would be promoted "almost automatically without further
competition to a WG-10 level upon demonstrated full performance."
Arbitrator's Award at 11. He also found that the Activity's Commanding
General determined after an investigation by his representative that the
grievants had been working at the WG-10 level for 1 year. The
Arbitrator viewed these findings as evidence of the grievants' full
performance at the WG-10 level, and further found that "the grievants
were not receiving fair and equitable treatment as required in Section 2
Article 32 when they received Grade 8 level pay while performing at an
acknowledged Grade 10 level." Arbitrator's Award at 13. The Arbitrator
concluded that (t)here is a preponderance of evidence in the record to
suggest that the grievants could have and should have been promoted on
May 28, 1984 . . . (and that) the contract was violated as charged by
the Union." Arbitrator's Award at 13-14. In short, the Arbitrator found
that the Activity's failure to timely promote the grievants once they
had demonstrated full performance at the higher level, which the
Activity acknowledged had occurred as early as May 28, 1984, was
unwarranted under the contract. This finding by the Arbitrator in the
circumstances of this case satisfies the requirement under the Back Pay
Act that an award of backpay must be supported by a finding of an
unwarranted or unjustified personnel action.
The Agency and OPM contend that nothing required the Activity to
promote the grievants in their career ladders at any particular time in
this case. The Authority has held that a career ladder promotion is the
direct result of an agency's decision to select an employee and place
the employee in a career ladder position in the agency. The agency's
selection of an employee and the placement of that employee in a career
ladder position also constitutes the agency's decision to promote that
employee noncompetitively at appropriate stages in the employee's career
up to the full performance level of the position, once the requisite
conditions have been met. American Federation of Government Employees,
AFL-CIO, Local 32, AFGE v. FLRA, 728 F.2d 1526 (D.C. Cir. 1984).
Therefore, a career ladder promotion is merely a ministerial act
implementing the agency's earlier decision to select and to place the
employee involved in a career ladder position, with the intention of
preparing the employee for successful noncompetitive promotions when the
conditions prescribed by agreement or regulations are met. Id. at 465.
In this case, the Arbitrator found that the Agency had previously
established that the grievants would be promoted in their career ladder
upon demonstrated full performance at the higher level. Once that
condition had been met, as it was when the Commanding General determined
that the grievants had been performing at the full performance level for
a year, and there was no dispute that other routine requirements were
also met (for example, time in grade), the ministerial act of promotion
could not be withheld without a valid and lawful reason. See AFGE,
Local 32 and OPM, at 465.
As to whether there was a loss of pay or other benefits resulting
from the untimely promotion, that element of the Back Pay Act clearly
was also present in this case since the grievants were compensated at
the WG-8 level from May 28, 1984 to June 10, 1985, when they should have
been compensated at the WG-10 level. As the Arbitrator found, the
Activity had established a past practice of providing backpay for
untimely promotions and misassignments during the term of the collective
bargaining agreement. In particular, the Arbitrator interpreted Article
11 of the Agreement as binding the Activity "to continue existing
practices, which flow naturally from past practices, specifically in
this case providing backpay for untimely promotions and misassignments."
Arbitrator's Award at 13. Therefore, the Arbitrator in essence
concluded that Article 11 and Article 32 of the parties' collective
bargaining agreement mandated that the grievants receive the pay which
they had lost during the time that they had worked at the WG-10 level
while still assigned at the WG-8 level. See American Federation of
Government Employees, Local 1233 v. FLRA, 796 F. 2d 530, 532 (D.C. Cir.
1986), affirming Health Care Financing Administration, 17 FLRA 650
(1985) (for purposes of the Back Pay Act an established past practice is
just as much a part of a collective bargaining agreement as its actual
written provisions). See also Council of District Office Locals,
American Federation of Government Employees, San Francisco Region,
AFL-CIO and Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 5 FLRA 759, 760 (1981).
In sum, the Arbitrator reviewed the requirements of the Back Pay Act
and found that "the action requested by the Union is not excluded nor
does it contravene existing laws, rules, or regulations." Arbitrator's
Award at 9-10. The facts as found by the Arbitrator support his
conclusion that the requirements for a proper award of backpay under the
Back Pay Act have been met in the circumstances in this case. That is,
the Arbitrator found that the grievants had been affected by an
unwarranted personnel action -- the failure to timely promote them upon
demonstrated full performance at the WG-10 level -- which resulted in a
withdrawal, reduction or denial of pay -- pay at the WG-8 level instead
of at WG-10 level -- and that but for the failure to timely promote
them, the grievants would not have suffered a loss of pay.
For these reasons we conclude that the Agency's exceptions and OPM'S
supporting arguments merely constitute disagreement with the
Arbitrator's findings of fact, his reasoning and conclusions, and his
interpretation and application of the parties' agreement. It is well
established that such challenges to an Arbitrator's award do not provide
a basis for finding the award deficient. See, for example, American
Federation of State, County and Municipal Employees, Local 2478, AFL-CIO
and U.S. Commission on Civil Rights, 26 FLRA No. 17 (1987).
The Agency's exceptions are denied.
Issued, Washington, D.C., October 30, 1987.
Jerry L. Calhoun, Chariman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 102
Association of Civilian Technicians, Pa. State Council and Adjutant
General of Pa., Case No. 0-NG-1379, (Decided October 30, 1987)
7105(a)(2)(D) and (E)
7106(a)(1)
7106(b)(1) and (3)
APPROPRIATE ARRANGEMENTS
NOT AN APPROPRIATE ARRANGEMENT
CONDITIONS OF EMPLOYMENT
EXAMPLES OF MATTERS ALLEGED TO BE A C.O.E.
PROMOTION PRACTICES
GRIEVANCE PROCEDURE, NEGOTIATED
NATIONAL GUARD TECHNICIANS
COMPATIBILITY REQUIREMENT
MILITARY ASPECTS OF CIVILIAN EMPLOYMENT
MILITARY ASPECTS DO NOT CONCERN CONDITIONS OF EMPLOYMENT
POSITION DESCRIPTION
ORGANIZATION, DETERMINATION OF, RESERVED MANAGEMENT
RIGHT (7106(a)(1))
COMPATIBILITY REQUIREMENT
POSITION DESCRIPTION
ACCURACY OF PD (FPM CHAPTER 511, SUBCHAPTER 4-3)
POSITION DESCRIPTION, CONFORMANCE TO ASSIGNED DUTIES
PROMOTION
OPPORTUNITIES FOR PROMOTION, STEPS PROPOSED OR TAKEN
The negotiations during which the disputed proposals arose stemmed
from the Agency's having required successful applicants for a particular
civilian technician position to be militarily compatible -- that is, be
assigned to a military unit at Ft. Indiantown Gap.
Proposal 1 -- The Authority found that the Union had not explained
precisely how the proposal is intended to operate, but that it was clear
that it is intended to overcome the requirement that technicians have
both their military and civilian assignments in the same unit or a unit
and facility supporting the unit. The Authority noted that the section
7106(a)(1) right of an agency to determine its organization encompasses
the discretion to determine its internal administrative and functional
structure. In the Authority's view, the proposal at issue would clearly
interfere with that right by requiring the Agency to eliminate the
organizational distinctions which it currently makes.
While the Union described all of its proposals as generally intended
to ameliorate the harmful effects of the civilian/military requirements
which are imposed by law and implementing regulations, the Authority
concluded that the Union had presented neither a specific claim that the
proposal is negotiable as an appropriate arrangement nor supported
support for such a claim.
Proposal 2 -- This proposal which was described by the Authority as
seeking to enforce the Agency's prohibition on military grade inversion,
was determined to be outside the duty to bargain because it concerned
the military aspects of technician employment.
Proposal 3 -- The Authority interpreted this proposal as seeking to
assure that where transfers occur, the employees will be guaranteed the
same level of career opportunities which they had before their transfer.
Based on that interpretation, the Authority found that it would have
the same effect as proposals which the Authority has found nonnegotiable
because they would have required an agency to establish its
organizational structure in a manner assuring promotional opportunities
for its employees. Thus, it interferes with management's right to
determine its organization. Insofar as the proposal is intended to
apply to the progression/enhancement of the technician's military
career, the Authority found that it concerned the military aspects of
technician employment and did not concern conditions of employment
within the meaning of the Statute.
Proposals 4 and 5 -- The Authority noted that it is unclear from the
language of Proposal 4 and the record, how the proposal is intended to
operate, although it appeared that it is meant to allow technicians to
retain in some unspecified way their civilian employment at the
organization at which they were currently assigned. The Authority found
that the proposal, as so interpreted, pertained to the military aspects
of technicians employment and therefore did not concern conditions of
employment within the meaning of the Statute. Proposal 5 was viewed as
susceptible to different interpretations. One would require management
to give employees who are assigned to military units in eastern
Pennsylvania the opiton of civilian employment at either of two
activities. As so interpreted, the proposal is nonnegotiable because it
would either interfere with the Agency's discretion to determine its
organization or pertain to the military aspects of technician
employment. A second interpretation would appear to incorporate the
Agency's current organizational structure into the agreement. Under
this interpretation, the proposal would, in effect, require management
to contractually bind itself to continue its current organizational
structure for the life of the agreement, thereby interfering with its
right to determine organization.
Proposal 6 -- The Authority interpreted this proposal as requiring
that a statement as to "assignment" be incorporated in the technicians
position description. This statement could encompass military
assignments as well as civilian assignments. The Authority found this
proposal to be negotiable, rejecting the Agency's assertions that it
concerned the military aspects of technicians work. Further, it does
not affect in any manner the work which may be assigned to technicians.
Proposal 7 -- A proposal which provided that grievances derived from
the section would be transmitted to Commanders at 1st step and then to
4th and Arbitration to expedite grievances was found to be within the
duty to bargain, rejecting the Agency's contention that by virtue of the
nature of the proposals, it would subject matters relating to the
military aspects of technician employment to the grievance and
arbitration procedure.
Case No. 0-NG-1379
ASSOCIATION OF CIVILIAN TECHNICIANS PENNSYLVANIA STATE COUNCIL
Union
ADJUTANT GENERAL OF PENNSYLVANIA
Agency
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of seven Union proposals. /1/
The Agency maintains three Army Aviation Support Facilities (AASF).
The facility at Washington, Pennsylvania, supports those military units
in western Pennsylvania. Units in eastern Pennsylvania are supported by
facilities located at Fort Indiantown Gap and Avoca, Pennsylvania.
National Guard technicians are required to maintain compatibility
between their military and civilian assignments. See, for example,
Association of Civilian Technicians, Montana Air Chapter and Department
of the Air Force, Montana Air National Guard, Headquarters 120th Fighter
Interceptor Group (ADTAC), 20 FLRA 717 (1985), aff'd sub nom.
Association of Civilian Technicians, Montana Chapter v. =LRA, No.
86-1057 (D.C. Cir. Jan. 29, 1987); Martelon v. Temple, 747 F.2d 1348
(10th Cir. 1984), cert. denied 471 U.S. 1135, 105 S.Ct. 2675 (1985).
The negotiations during which the disputed proposals arose stemmed from
the Agency's having required successful applicants for a particular
civilian technician position to be militarily compatible -- that is, be
assigned to a military unit at Fort Indiantown Gap.
For the reasons discussed below, we find that Proposals 6 and 7 are
within the duty to bargain; and we dismiss the Union's petition for
review as it relates to Proposals 1-5.
All Army Aviation Support Facilities within Pennsylvania are
interlocked as one, therefore all Technicians must maintain
compatibility in CMF (Career Military Field) related to their
technician position as stated on Technicians position description.
The Union contends that, in general, this proposal and the other
proposals are intended to ameliorate the harmful effects of the
civilian/military compatibility requirement on the technicians insofar
as their civilian employment is concerned. It further describes the
proposal as intended to implement and enforce the Agency's regulation
relating to military compatibility.
The Agency contends that this proposal would require it to establish
the three AASFs as a single organizational entity. It argues that the
proposal would allow technicians to be assigned to an AASF based solely
on their CMF -- Career Military Field (also known as MOS-Military
Occupational Specialty) -- and without regard to military unit
assignemnt. The Agency asserts that the proposal is nonnegotiable
because it excessively interferes with management's rights to determine
its organization, assign and direct employees, assign work and determine
the personnel by which Agency operations will be conducted. It contends
additionally that the proposal is nonnegotiable because it concerns the
military aspects of technician employment and, consequently, does not
concern conditions of employment within the meaning of the Statute. It
asserts that the proposal also conflicts with an Agency regulation for
which a compelling need exists.
The Union does not explain precisely how the proposal is intended to
operate. It is clear that it is intended to overcome the requirement
that technicians have both their military and civilian assignments in
the same unit or a unit and facility supporting that unit. For example,
currently a technician militarily assigned to a unit supported by the
Fort Indiantown Gap AASF must have a civilian assignment to that AASF as
opposed to one of the other two AASFs. On its face, the proposal seeks
to accomplish its end by requiring the Agency to restructure its
organization by eliminating any distinctions between the three AASFs
insofar as assigning responsibility for providing support for a
particular military unit. Thus there would be no need for a technician
to work at a particular AASF in order to achieve military compatibility.
Under section 7106(a)(1) the right of an agency to determine its
organization encompasses the discretion to determine its internal
administrative and functional structure. See, for example, American
Federation of Government Employees, AFL-CIO, Local 3805 and Federal Home
Loan Bank Board, Boston District Office, 5 FLRA 693 (1981). This
proposal would clearly interfere with that right by requiring the Agency
to eliminate the organizational distinctions which it currently makes
among the three AASFs in designating them as separate activities with
individual responsibilities for providing support for specific military
units.
The Union describes all of its proposals as generally intended to
ameliorate the harmful effects of the civilian/military requirements
which are imposed by law and implementing agency regulation. See
Montana Air National Guard, 20 FLRA 717 (1985) and Martelon v. Temple,
747 F.2d 1348 (10th Cir. 1984). However, it has presented neither a
specific claim that the proposal is negotiable as an appropriate
arrangement under section 7106(b)(3) nor provided support for such a
claim. In National Association of Government Employees, Local R14-87
and Kansas Army National Guard, 21 FLRA No. 4 (1986), we discussed in
detail the responsibilities of the parties to raise and address specific
matters concerning section 7106(b)(3) in negotiability appeals. Based
on the record, we do not reach that issue in the present case. /2/
We find that Proposal 1 is nonnegotiable because it conflicts with
the Agency's right to determine its organization. In view of this
finding, it is unnecessary to address the Agency's other arguments as to
the nonnegotiability of this proposal.
That management realign and assign, through competitive and merit
placement procedures, all Technicians and AGRs (Active
Guard/Reserve) serving in Technician positions to meet the
standards set forth in para. C of TPR 300, Section 7.8 (Inversion
of Military Rank). (Inversion occurs where a civilian technician
is supervised by someone who is junior in terms of military rank.)
The Union describes the proposal as seeking to implement a
requirement found in Agency regulation that military rank inversion not
be permitted. It further asserts that the proposal is intended to
ameliorate any harmful effects that might be produced by military
compatibility requirements.
The Agency contends that the proposal is nonnegotiable because it
concerns the military aspects of technician employment. It also asserts
that the proposal excessively interferes with its right to determine its
organization; to assign and direct employees; to assign work and
determine the personnel by which agency operations will be conducted.
Additionally, it argues that the proposal concerns conditions of
employment of non-unit employees.
The Authority has previously held that proposals which seek to
enforce the Agency's prohibition on military grade inversion are not
within the duty to bargain because they concern the military aspects of
technician employment. For example, National Association of Government
Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26
FLRA No. 62 (1987) (Proposal 3). This proposal is materially to the
same effect in that it seeks to prescribe methods to enforce this
prohibition. It is nonnegotiable for the reasons expressed in National
Guard Bureau and the decision relied upon therein.
In view of this finding, it is unnecessary to address the other
arguments of the parties as to the negotiability of this proposal. As
discussed in conjunction with Proposal 1, the question of whether this
proposal constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) is not properly before us.
All transfers which are a creation of NGB (National Guard Bureau)
or the employer (TAGPA) (the Adjutant General of Pennsylvania)
through reorganizations and/or consolidations, and are of no fault
of the employee, whether they be Technician or Military
assignment, will not penalize or have adverse impact on the
Technician's selection for career enhancement/advancement of the
Technician civilian career progression.
The Union again makes the same general argument as it raised
regarding Proposals 1 and 2, that this proposal is intended to
ameliorate any harmful effects which the military compatibility
requirement may produce. It describes this proposal as seeking to
insure that where employees are transferred there will be no negative
impact on the employee's civilian career insofar as advancement,
promotion and career enhancement are concerned.
The Agency asserts that this proposal excessively interferes with
management's rights to determine organization; to assign and direct
employees; to assign work and to determine the personnel by which
agency operations will be conducted. It also argues that this proposal
is nonnegotiable because it concerns the military aspects of technician
employment and, thus, does not concern conditions of employment.
The Agency interprets the proposal as preventing it from transferring
employees to other work sites when the transfer would result in any
negative effects on the employee's career.
We do not read the proposal as going so far as to actually prohibit
transfers. Rather, it seeks to insure that where transfers occur, the
employees will be guaranteed the same level of career opportunities
which they had before their transfer. Based on this interpretation, we
find that this proposal would have the same effect as proposals which
the Authority has held nonnegotiable because they would have required an
agency to establish its organizational structure in a manner assuring
promotional opportunities for its employees. For example, American
Federation of Government Employees, AFL-CIO, Local 3742 and Department
of the Army, Headquarters, 98th Division (Training), Webster, New York,
11 FLRA 189 (1983). This proposal would require that, if the Agency
were to transfer an employee to a position which lacked promotional,
advancement or enhancement opportunities equivalent to those of the
employee's previous position, the Agency would be obligated to redesign
the position and/or other aspects of its organizational structure in
order to create the same level promotional/advancement/enhancement
opportunities in the new position as existed in the employee's previous
position. The Authority has found that proposals with such an effect
directly interfere with the right of an agency to determine its
organization. We reach the same conclusion as to this proposal insofar
as it concerns the technician's civilian career. Insofar as it is
intended to apply to the progression/enhancement of the technician's
military career, we find that it concerns the military aspects of
technician employment and does not concern conditions of employment
within the meaning of the Statute. See, for example, National
Association of Government Employees, SEIU, AFL-CIO and National Guard
Bureau Adjutant General, 26 FLRA No. 62 (1987) (Proposal 3).
In view of these findings, it is unnecessary to pass upon the
Agency's other arguments as to the nonnegotiability of this proposal.
Moreover, for the reasons discussed in conjunction with Proposal 1, we
do not view the question of whether this proposal is an appropriate
arrangement within the meaning of section 7106(b)(3) as being properly
before us. Based on the above, we find that Proposal 3 is not within
the duty to bargain.
All currently employed technicians at all 3 Aviation locations be
grandfathered for compatibility of support assignment.
All new personnel assigned to Eastern PA will be assigned to units
supported by Avoca or FTIG and all personnel assigned to Western
PA will be assigned to units supported by Little Washington, PA.
The Union describes these proposals as seeking to negotiate the
location where civilian technicians may be transferred. Proposal 4
seeks to "grandfather" currently employed technicians at the three
AASFs. Proposal 5 seeks to have new employees "assigned as civilians to
two designated work sites." It asserts that the proposals are intended
to negotiate the impact of military requirements on the technicians'
civilian capacity as opposed to the military decisions themselves.
The Agency argues that the proposals would limit its ability to
assign technicians to positions which are compatible with the military
units of which they are members. It asserts that Proposal 5 would
require it to "restructure" its AASF administration into two
geographical, not military, units for compatibility purposes. It
contends that these two proposals are nonnegotiable because they
excessively interfere with its rights to determine its organization; to
assign and direct employees; and to assign work and determine the
personnel by which agency operations will be conducted. It also argues
that the proposals concern the military aspects of technician employment
and, thus, do not concern conditions of employment. Additionally, it
argues that the proposals conflict with an Agency regulation for which a
compelling need exists.
It is unclear from the language of the proposals and the record,
including the Union's statement of their intended meaning, how these
proposals are intended to operate. It appears that Proposal 4 is meant
to allow technicians to retain in some unspecified way their civilian
employment at the AASF at which they are currently assigned. We adopt
this interpretation for purposes of decision. Two means seem to be
available which would allow an employee's civilian assignment to remain
unchanged:
1) Military assignment could be tailored to correspond to the
civilian assignment; or
2) An exception could be made to the compatibility requirement
where there is a discrepancy between military and civilian
assignment.
Based on either alternative, we find that Proposal 4 concerns the
military aspects of technician employment. Under the first alternative
the proposal would dictate a change of military assignment; and under
the second, the proposal would dictate an exception to the requirement
that the technician hold a compatible military position. The Authority
has consistently held that matters pertaining to the military aspects of
technician employment do not concern conditions of employment within the
meaning of the Statute. For example, National Federation of Federal
Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829
(1985). Thus, we find that Proposal 4 is not within the duty to
bargain.
Proposal 5 is susceptible to different interpretations. The Agency
suggests that it would require management to give employees who are
assigned to military units in eastern Pennsylvania the option of
civilian employment at either Avoca or Fort Indiantown Gap. Under this
interpretation, the proposal would effectively require a restructuring
of the Agency's organization similar to that discussed in conjunction
with holding Proposal 1 nonnegotiable; or it would require elimination
of compatibility requirements insofar as technicians assigned to units
in eastern Pennsylvania are concerned. In any event, the proposal is
nonnegotiable because it would either interfere with the Agency's
discretion to determine its organization or pertain to the military
aspects of technician employment.
Proposal 5 may also be interpreted not as giving technicians a choice
between Fort Indiantown Gap and Avoca but, rather, as incorporating the
Agency's current organizational structure in the agreement. In this
regard, the Agency states that military units physically located in the
western part of the state are supported by the AASF at Washington, Pa.,
while those in the eastern part are supported by either Fort Indiantown
Gap or Avoca. Agency Statement of Position at 1. Even with this
intended meaning, however, the proposal is nonnegotiable. The right to
determine organization must necessarily include the ability to modify
existing organizational structure. Under this interpretation, the
proposal would, in effect, require management to contractually bind
itself to continue its current organizational structure for the life of
the agreement. Compare National Association of Air Traffic Specialists
and Department of Transportation, Federal Aviation Administration, 6
FLRA 588, 591 (1981).
In view of these findings, it is unnecessary to pass upon the
Agency's other arguments as to the nonnegotiability of these proposals.
Once again, for the reasons expressed in conjunction with Proposal 1, we
do not view the question of whether these proposals constitute
appropriate arrangements within the meaning of section 7106(b)(3) as
being properly before us. Based on the above, we find that Proposals 4
and 5 are not within the duty to bargain.
All PDs (Position Description) will state assignment and . . .
The petition was submitted with this proposal containing three
blocked out characters. The petition contains no statement as to the
meaning to be attributed to this specific proposal.
The Agency asserts that it construes the blocked out characters as
being "MOS" -- an acronym for Military Occupational Specialty. It
therefore interprets the proposal as requiring that a statement as to
the technician's military assignment and MOS be placed in position
descriptions. Based on this interpretation, it argues that the proposal
concerns the military aspects of technician employment and for that
reason is not within the duty to bargain. It further asserts that this
proposal is not an "appropriate arrangement" within the meaning of
section 7106(b)(3) because it does not concern the exercise of any
management right under section 7106(a) or (b)(1).
We make no determination as to what the blocked out characters which
appear in this proposal may have symbolized before they were deleted.
We rule upon the proposal as constituted in the Union's petition which
was submitted to us. Therefore, we read the proposal as requiring that
a statement as to "assignment" be incorporated in the technician
position description. This statement could encompass military
assignment as well as civilian assignment. Even if this interpretation
is so, we do not construe the proposal as concerning the military aspect
of technician employment. Rather, the proposal is focused on the
contents of the civilian technician's position description. It in no
manner determines or affects the military aspects of the technician's
employment. Its relationship to the military aspects of technician
employment is limited to a requirement that a statement reflecting
existing facts as to military assignment be incorporated in the civilian
technician's position description. Compare National Federation of
Federal Employees, Local 1694 and Oklahoma Army National Guard, Oklahoma
City, Oklahoma, 14 FLRA 183 (1984), in which the Authority found
negotiable a proposal to delete from technicians' position descriptions
a sentence referring to MOS.
We reject the Agency's assertion that the proposal concerns the
military aspects of employment and, consequently, does not concern
conditions of employment. Further, it does not affect in any manner the
work which may be assigned to technicians. In view of the fact that the
Agency acknowledges that the proposal would not interfere with the
exercise of its management rights and that there is no basis in the
record for concluding that it would, we find that Proposal 6 is within
the duty to bargain.
Grievances deriving from this section will be transmitted to
Commanders at 1st step and then to 4th and Arb. to expedite
grievance.
The Union describes this proposal as seeking expedited consideration
of grievances covering the issues involved in the proposals. The Union
argues that, assuming that the proposals are negotiable, bargaining
concerning the grievance procedure is mandatory.
The Agency interprets the proposal as requiring that any grievance
arising from the interpretation/application of any agreement reached on
these proposals will be processed through an expedited procedure. It
argues that this proposal is non-negotiable because, by virtue of the
nature of the proposals, it would subject matters relating to the
military aspects of technician employment to the grievance and
arbitration procedures.
Based on the parties' description of this proposal, it would only
subject the military aspects of technician employment to the grievance
and arbitration procedures if such matters were incorporated in an
agreement reached with respect to the foregoing proposals. Inasmuch as
we would not find that a proposal which concerned the military aspects
of technician employment is within the duty to bargain, the Agency's
arguments that such a provision would be incorporated in the agreement
to which Proposal 7 applies is not persuasive. We interpret the
proposal as seeking the expedited processing of grievances as opposed to
seeking to define the scope of the grievance procedure to cover the
military aspects of technician employment. Based on this
interpretation, we find that Proposal 7 is within the duty to bargain.
The Union's petition for review as to Proposals 1 through 5 is
dismissed. The Agency shall upon request (or as otherwise agreed to by
the parties) bargain concerning Proposals 6 and 7. /3/
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Union's response to the Agency's statement of position was
untimely filed and was not considered.
(2) The parties are responsible for creating the record upon which we
will resolve negotiability disputes. National Federation of Federal
Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A party
failing to assume this burden acts at its peril.
(3) In finding that these proposals are within the duty to bargain,
we make no judgment as to their merits.
29 FLRA NO. 101
NTEU and IRS, Case No. 0-NG-1338, (Decided October 30, 1987)
7105(a)(2)(E)
7106
BUDGET
CONDITION OF EMPLOYMENT
MISSION OF AGENCY, MANAGEMENT RIGHT
NEGOTIABILITY PROCEDURE
ABEYANCE
OFFICIAL TIME
TRAVEL AND PER DIEM
The proposal at issue provided for the employer to pay travel and per
diem for all union negotiators. The Authority, relying on its
established precedent, found the proposal to be negotiable, rejecting
the agency's contentions that the proposal was inconsistent with law;
that it was inconsistent with government-wide regulations; that it did
not concern a condition of employment; and that it interfered with
management's right to determine its budget and its mission. The
Authority also rejected the agency's request that the Authority stay
this case until judicial review of cases involving the negotiability of
travel and per diem payments is completed. The Authority concluded that
the Agency had failed to provide persuasive reasons for holding the case
in abeyance, noting that its precedent and analysis clearly establishes
that the proposal is within the duty to bargain.
Case No. 0-NG-1338
NATIONAL TREASURY EMPLOYEES UNION
Union
DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE
Agency
This case is before the Authority because of 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 a single Union proposal, which we find is within
the Agency's duty to bargain.
The employer will pay travel and per diem for all union
negotiators.
The Agency requested that the Authority stay this case until judicial
review of cases involving the negotiability of travel and per diem
payments is completed. In support of its position, the Agency refers to
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub
nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
86-1198 (D.C. Cir. Mar. 27, 1986) (Customs) and National Treasury
Employees Union and Department of the Treasury, Internal Revenue
Service, 21 FLRA No. 126 (1986), petition for review filed sub nom.
Department of the Treasury, Internal Revenue Service v. FLRA, No.
86-1373 (D.C. Cir. June 25, 1986) (IRS). More particularly, the Agency
argues that the language and meaning of the proposal in IRS is identical
to the language and meaning of the proposal presented here. Since a
stay of the Authority's decision in IRS was granted by the Court of
Appeals, a stay should likewise be granted by the Authority in this
case, according to the Agency.
As to the merits of the proposal, the Agency takes the position that
the proposal is outside the duty to bargain because (1) it is
inconsistent with Federal law; (2) it is inconsistent with a
Government-wide regulation; (3) it does not concern a condition of
employment; and (4) it interferes with management's right to determine
its budget and its mission.
The Union argues that the proposal is within the duty to bargain and
does not violate management's rights, as alleged.
The Agency makes essentially the same arguments that were made in
both the Customs and IRS decisions. In those decisions, the Authority
concluded that proposals authorizing the payment of travel and per diem
to employee union negotiators concerned conditions of employment and
were not inconsistent with Federal law or Government-wide regulations.
We reach the same conclusion here.
Additionally, in Customs, the Authority rejected an agency argument
that the authorization of travel expenses conflicted with the agency's
right to determine its budget. The Authority further found, however,
that an agency cannot be required to bargain over budgetary matters
relating to programs and operations to be included in the agency's
estimation of proposed expenditures and the corresponding funding
levels. Similarly, an agency may not be required to bargain over a
matter where a substantial demonstration is made that a significant and
unavoidable increase in costs will result which are not offset by
compensating benefits.
In this case, the Agency argued that the proposal would require it to
establish and fund a separate travel and per diem program for
employee/union negotiators. The Agency indicated that this account would
be different from its normal travel account in one important respect --
the account established by the proposal would not be subject to the
Agency's control while the normal travel account can be reduced or
eliminated as needed by the Agency.
We find that the Agency's argument lacks merit. The proposal does
not prescribe a particular program or operation to be included in the
Agency's budget. As the Agency acknowledges, it already maintains a
travel account. There is nothing in the proposal that mandates the
establishment of a separate account and nothing to indicate that the
Agency's existing account could not be used to fund travel and per diem
for negotiations.
We also reject the Agency's argument that the proposal conflicts with
the right to determine its mission. The Agency states that its mission
is to administer and enforce the internal revenue laws of the United
States. The Agency claims that since the proposal would require it to
establish and fund a separate travel and per diem account, over which
the Agency has no control, the proposal would interfere with the
Agency's determination as to where to expend necessary funds in order to
accomplish its mission. In support of its argument, the Agency cited to
the decisions in American Federation of Government Employees, Local 3231
and Social Security Administration, 22 FLRA No. 92 (1986) and Department
of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) in
which the Authority found that hours of operation were mission related
and therefore were outside the obligation to bargain.
In our view, the Agency has not demonstrated that negotiations over
the proposal would interfere with its mission. First, the cases cited
by the Agency are not applicable. In Social Security Administration,
the proposal specified the hours of operation for one of the agency's
field offices. The Authority found that since a part of the agency's
mission was to provide services to the public, a decision regarding the
particular hours the office would be open to the public was mission
related and, therefore, the proposal was inconsistent with management's
right to determine its mission. In Lowry Air Force Base, the Authority
found that there was no obligation to bargain over commissary store
hours since part of the agency's mission was to provide commissary
services to various personnel.
Second, we find nothing in the proposal itself which interferes with
the administration and enforcement of the internal revenue laws. The
proposal is merely concerned with authorizing travel and per diem
payments for union negotiators. Moreover, the Agency's argument appears
to be premised on its view that the proposal would require the
establishment and funding of a separate travel account. As we noted in
connection with the Agency's argument concerning its budget, nothing in
the proposal requires such action by the Agency.
We find that the Agency has failed to provide persuasive reasons for
holding this case in abeyance. Thus, Authority precedent and our
analysis herein clearly establish that the proposal is within the duty
to bargain. See Internal Revenue Service, 28 FLRA No. 4 (1987).
The Agency must, upon request, or as otherwise agreed to by the
parties, bargain on the proposal. /*/
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) In finding the proposal to be within the duty to bargain, we make
no judgment as to its merits.
29 FLRA NO. 100
SSA, Office of Hearings and Appeals, Kansas City, Missouri and AFGE,
Local 1336, Case No. 0-AR-1358 (Decided October 30, 1987)
7103(a)(9)
7116(a)(1), (5) and (8)
7122(a) and (b)
7123
7131
ARBITRABILITY
OFFICIAL TIME
ARBITRATION AWARDS, NO BASIS FOR REVIEW
EVIDENCE AND TESTIMONY,
DISAGREEMENT WITH ARB'S EVALUATION
OFFICIAL TIME
COLLECTIVE BARGAINING AGREEMENT PROVISION
ARBITRAL REVIEW
The Authority dismissed exceptions filed by the union to an
arbitrator's award which denied a grievance regarding official time. In
his award, the arbitrator found that he was without authority to decide
the union's 7116(a) allegation because such unfair labor practice
allegations were for the Authority to adjudicate.
A union steward was granted official time for representational
activities in the union's office located in another building but was
denied official time for travel to and from the office. The union
steward was required to use part of her lunch period and 15 minutes in
annual leave for the travel.
The union claimed that the arbitrator's award was deficient. The
Authority cited precedent that a contention which merely constitutes
disagreement with the arbitrator's evaluation of evidence and testimony
provides no basis for finding an award deficient.
The Authority noted that the arbitrator erred in finding that he was
without authority to decide the Union's allegation that the activity
violated section 7116(a). Since exceptions were not filed to the
arbitrator's erroneous finding the Authority did not take any action
under 7122(a).
Case No. 0-AR-1358
SOCIAL SECURITY ADMINISTRATION, OFFICE OF HEARINGS AND APPEALS,
KANSAS CITY, MISSOURI
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336
Union
This matter is before the Authority on exceptions to the award of
Arbitrator Chandler F. Fizer 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 grievance arose when the grievant, a Union steward, was granted
official time for representational activities in the Union's office but
was denied official time for travel to and from the office, which was
located in a different building. She was required to use part of her
lunch period and 15 minutes of annual leave for the travel. The issue
before the Arbitrator was whether the Activity thereby violated the
parties' National Agreement and section 7116(a)(1), (5) and (8) of the
Statute. The Union alleged that under the Statute, the agreement and a
past practice at the Activity, the steward was entitled to official time
for the time spent in travel.
The Arbitrator found that the Union steward was not automatically
entitled to official time for her travel under section 7131 of the
Statute and that the parties' agreement did not provide for official
time for the travel. The Arbitrator also determined that the Union
failed to establish the existence of a past practice at the Activity of
always granting official time for the travel of Union representatives.
The Arbitrator noted the Activity's stated policy that it does grant
official time to Union representatives for travel to and from the Union
office if the representational activity involved cannot be performed at
the work site or by telephone. The Arbitrator concluded that the
Activity's action was not contrary to section 7131 of the Statute, the
parties' agreement or past practice at the Activity. The Arbitrator
further found that he was without authority to decide the Union's
7116(a) allegation because such unfair labor practice allegations were
for the Authority to adjudicate. Accordingly, as his award, the
Arbitrator denied the grievance.
In its exceptions, the Union contends that the evidence presented to
the Arbitrator did not support his conclusions concerning official time
at the Activity. The Union asserts that the evidence established that
official time had always been granted to Union stewards for travel and
that the Activity unilaterally changed that long-standing practice in
this case. The Union further asserts that the Arbitrator ignored or did
not properly consider the exhibits and testimony it presented and that
his conduct showed that he was biased in favor of the Activity.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute; that is, 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-management relations cases. See, for example, Local 1919,
American Federation of Government Employees and Veterans Administration
National Cemetery, Farmingdale, Long Island, New York, 12 FLRA 605(1983)
(a contention which merely constitutes disagreement with the
arbitrator's evaluation of evidence and testimony provides no basis for
finding an award deficient); Veterans Administration and American
Federation of Government Employees, Local 997, 8 FLRA 238 (1982) (an
assertion that the arbitrator was guilty of misconduct but which
constitutes disagreement with the arbitrator's evaluation of the
testimony and evidence presented at the hearing and an attempt to
relitigate the merits of the grievance before the Authority provides no
basis for finding an award deficient). Accordingly, the Union's
exceptions are denied.
In denying the exceptions, we note that the Arbitrator erred in
finding that he was without authority to decide the Union's allegation
that the Activity violated section 7116(a) of the Statute. Section
7103(a)(9) of the Statute defines the term "grievance" broadly to
include "any claimed violation . . . of any law . . . . " Thus, an
employee or union may allege in a grievance that an agency violated any
law, including the Statute. Indeed, section 7123 of the Statute
contemplates the arbitration of such grievances by precluding judicial
review of Authority decisions in arbitration cases, unless the decision
involves an unfair labor practice under the Statute. See, for example,
AFGE, Local 1923 v. FLRA, 615 F.2d 612 (4th Cir. 1983); Tonetti v.
FLRA, 776 F.2d 929 (11th Cir. 1985); United States Department of
Justice, Bureau of Prisons v. FLRA, 792 F.2d 25 (2d Cir. 1986). See
also Overseas Education Association v. FLRA and National Treasury
Employees Union v. FLRA, 824 F.2d 61 (D.C. Cir. 1987). However,
exceptions to the Arbitrator's erroneous finding were not filed and the
Authority does not find it necessary in the circumstances of this case
to take any action under section 7122(a) of the Statute.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) The Union also filed "amended exceptions. To the extent that
such amendment raises new exceptions not raised in its original
submission, the exceptions are untimely under section 7122(b) of the
Statute and section 2425.1(b) of the Authority's Rules and Regulations
and have not been considered.
29 FLRA NO. 99
AFGE, General Committee and SSA, Case No. 0-AR-1386 (Decided October
30, 1987)
7122(a)
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
NO BASIS FOR GRANTING RECONSIDERATION
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
The Authority denied a union's request for reconsideration of an
arbitration case. The union argued that (1) the Authority decision was
inconsistent with previous decisions in unfair labor practice cases
involving similar issues; (2) the arbitrator's award was based on a
non-fact; and (3) the Authority did not meet its statutory obligations
because the decision did not offer a well-reasoned explanation for
denying the union's exceptions.
The Authority rejected the union's points as disagreement with the
merits of the Authority's decision.
Case No. 0-AR-1386 (28 FLRA No. 133)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, GENERAL COMMITTEE
Union
SOCIAL SECURITY ADMINISTRATION
Agency
This matter is before the Authority on a request filed by the Union
seeking reconsideration of our decision of September 18, 1987, in 28
FLRA No. 133. In that decision, we denied the Union's exceptions to the
Arbitrator's award concerning the method by which paychecks are
delivered to employees. We found that the exceptions failed to
establish that the award was deficient on any of the grounds set forth
in section 7122(a) of the Federal Service Labor-Management Relations
Statute (the Statute).
In its request for reconsideration, the Union argues that (1) our
decision is inconsistent with previous decisions in unfair labor
practice cases involving similar issues; (2) the Arbitrator's award is
based on a non-fact; and (3) we did not meet our statutory obligations
because the decision did not offer a well-reasoned explanation for
denying the Union's exceptions.
Section 2429.17 of our Regulations permits a party that can establish
"extraordinary circumstances" to request reconsideration of a decision
of the Authority. Here, however, we conclude that the Union has not
established "extraordinary circumstances" within the meaning of section
2429.17. The Arbitrator's award in this case is not deficient under
section 7122(a) of the Statute simply because the remedy directed by the
Arbitrator is different from that ordered by the Authority in unfair
labor practice cases involving the methods of paycheck delivery. The
arguments presented by the Union in support of its request essentially
constitute nothing more than disagreement with the merits of our
decision and present no basis on which to grant reconsideration.
Accordingly, the Union's request for reconsideration is denied.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 98
U.S. Government Printing Office and Joint Council of Unions/GPO, Case
No. 3-CA-60461 (Decided October 30, 1987)
7116(a)(1) and (5)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
CONDITIONS OF EMPLOYMENT
NO CHANGE IN CONDITIONS OF EMPLOYMENT
LEAVE
LEAVE
LEAVE WITHOUT PAY
In this unfair labor practice case, the Authority, having found no
prejudicial error, adopted the findings, conclusions, and recommended
order of the administrative law judge.
The judge ruled that the agency had not violated section 7116(a)(1)
and (5) when it informed the union that the previous leave without pay
policy would be reinstituted. The judge held that the voluntary LWOP
policy negotiated by the parties and contained in a Notice was not made
a part of the parties' Master Agreement and did not continue to exist
after the cancellation date.
Case No. 3-CA-60461
U.S. GOVERNMENT PRINTING OFFICE
Respondent
JOINT COUNCIL OF UNIONS/GPO
Charging Party
The Administrative Law Judge issued the attached decision in this
case, finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint when it put back into effect its old
leave without pay policy. He recommended that the complaint be
dismissed. The General Counsel has filed exceptions. /*/
Pursuant to section 2324.29 of our Regulations and section 7118 of
the Statute, we have reviewed the rulings of the Judge and find that no
prejudicial error was committed. The rulings are affirmed. On
consideration of the Judge's decision and the exceptions, we adopt the
Judge's findings, conclusions, and recommended order.
The complaint in this case is dismissed.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 3-CA-60461
U.S. GOVERNMENT PRINTING OFFICE
Respondent
JOINT COUNCIL OF UNIONS/GPO
Charging Party
Neal H. Fine, Esquire
Mr. Don McCaughan
For the Respondent
Mr. John Sagner
Mr. George E. Lord
For the Charging Party
Patricia Eanet Dratch, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C., against the U.S. Government Printing Office
(Respondent of GPO), based on a charge filed by the Joint Council of
Unions/GPO (Joint Council or Union). The complaint alleged, in
substance that Respondent violated sections 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute, 5 U.S.C. Section
7101 et seq. (the Statute), on or about March 13, 1986, by unilaterally
changing the working conditions of employees represented by the Union
regarding use of leave without pay by informing the Union that effective
immediately Respondent would be following the provisions of Instruction
645.11, Leave Without Pay.
Respondent's answer admitted the jurisdictional allegations as to
Respondent, the Union, and the charge, but denied any violation of the
Statute.
A hearing was held in Washington, D.C. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and General Counsel filed helpful briefs, and the proposed findings have
been adopted where found supported by the record as a whole. Based on
the entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
GPO suffered a monetary loss in its printing and binding operations
in fiscal year 1982 and projected continued losses in fiscal year 1983.
The Public Printer, Danford Sawyer, believed that to stem these losses
he had to achieve a reduction in personnel compensation costs. When an
attempt to furlough all employees for 6 days was blocked by the Joint
Committee on Printing and the U.S. District Court, the Public Printer
proposed that costs could be reduced by encouraging employees to take
leave without pay during fiscal year 1983. The existing GPO Instruction
on Leave Without Pay, 645.11, generally provided that an employee could
only take a limited amount of leave without pay each year. The Public
Printer wanted to amend, only for fiscal year 1983, the provisions in
Instruction 645.11 which limited the amount of leave without pay (LWOP)
which could be granted.
On November 9, 1982, the Joint Council was sent a proposal which
embodied these desires and aims of the Public Printer. The proposals
specifically stated that the limitations on LWOP would be amended for
only one year and would be subject to revision or continuation in
accordance with GPO's economic conditions. The proposal was submitted
to the Joint Council as a GPO Notice. The Joint Council requested
negotiations, and negotiations began November 29, 1982, ending April 15,
1983.
During this period of time negotiations on the first Master Agreement
between Respondent and the Joint Council, which had taken 3 1/2 years to
complete, were also concluding. /1/ Leave was a major stumbling block.
The parties ultimately agreed to Article XIII, Leave, as follows:
SECTION 1. New GPO Instructions regarding annual leave, sick
leave, court leave, administrative leave, and leave without pay
may be negotiated by the parties after this Agreement is signed
and be incorporated by reference in the Master Agreement. Such
Instructions will replace provisions of existing Supplemental
Agreements and existing GPO directives and issuances on the same
subject, and each will become effective after agreement is
reached.
GPO issues policy and procedure directives as either Notices or
Instructions. A Notice is issued for directives which are temporary in
nature, while permanet policies are issued as Instructions. /2/ Notices
are always printed on green stock paper, while Instructions are printed
on white stock paper. In addition Notices always have a specific
cancellation date, while Instructions, being permanet policies, do not
contain cancellation dates. The Joint Council was well aware of the
differences between Notices and Instructions.
The parties exchanged proposals several times during the course of
negotiations. A major point of dispute throughout the negotiations was
whether the LWOP policy would be issued as a Notice or as an
Instruction. Each GPO proposal was presented in the form of a Notice
for a fixed period of time which would only amend the limitation
provisions of the existing Instruction 645.11. The Joint Council,
however, presented each of its proposals in the form of a permanent
Instruction, which would supersede the provisions of Instruction 645.11.
The Joint Council proposed that the Instruction "be in effect for the
duration of the Master Agreement or 3 years thereof."
At a negotiation session on April 11, 1983 the parties specifically
discussed the difference between a Notice and Instruction and reiterated
their reasons for wanting one or the other. GPO, by Lawrence Kennelly,
principal negotiator, explained that management wanted the policy to be
in the form of a Notice so it would expire on a specific date. The
Public Printer was fearful that GPO might lose personnel over a period
of time and would no longer be able to afford having personnel on leave
without pay. The Joint Council, by George E. Lord, chief negotiator,
explained that they wanted it to be an Instruction so that it would
continue as part of the Master Agreement and Management would have to
negotiate any change. (Tr. 122-123; 136).
On April 15, 1983, the parties reached agreement on the LWOP policy.
As a result of a concession on GPO's part concerning how LWOP would be
considered by selecting officials under the merit promotion program, the
Joint Council agreed to a Notice. (Tr. 148). /3/
GPO Notice 645-110 on volunatary LWOP was issued on May 15, 1983. It
provided, in pertinent part, as follows:
1. Purpose. This Notice shall be in effect until March 13,
1986, and it explains the new LWOP program.
4. Impact on Existing GPO Regulations and Policies. Some GPO
regulations will be altered by this program. These are:
a. GPO Instruction 645.11, Subject: LWOP. This Instruction
is amended. . . .
8. Negotiation. This Notice has been negotiated between the
appropriate Management officials and the Joint Council of Unions
of the GPO.
9. Cancellation. This Notice is cancelled on March 13, 1986.
The cancellation date for the Notice, March 13, 1986, was four days
after the expiration of the Master Agreement.
GPO Instruction 645.11 was not terminated by issuance of the Notice.
It remained in full effect with only the amendments provided by the
Notice altering its provisions during this three year period.
There is no evidence that the Joint Council ever requested bargaining
over LWOP after agreement on the Notice until it submitted its proposals
for the second collective bargaining agreement in January 1986.
In late January or early February 1986, Neal Fine, Respondent's
Deputy Director of Labor Relations, called George Lord, Joint Council
Chairman, and asked Lord the Union's position with respect to what LWOP
would be in effect upon the expiration of the negotiated LWOP Notice.
Lord responded, inter alia, that the Union's position was that LWOP
policy was tied to the master agreement, and that it was his
understanding that the negotiated policy would stay in effect until
negotiations over LWOP the Union had agreed to implement the prior LWOP
policy (Instruction) upon the expiration of the negotiated policy
(Notice), the Union would concede the point. Lord informed Fine that if
Respondent intended to unilaterally invoke a new policy upon the
expiration of the negotiated Notice, the Union would file an unfair
labor practice charge. Additionally, Lord told Fine that such a
unilateral action by Respondent would seriously impair the on-going
negotiations for a second master agreement.
By letter dated March 13, 1986, Respondent, by Neal Fine, notified
the Joint Council that GPO Notice 645-110 was negotiated to be in effect
only until March 13, 1986 and, effective immediately, GPO would be
following GPO Instruction 645.11.
The reinstitution of GPO Instruction 645.11 had a substantial impact
on bargaining unit employees. In this regard, the most significant
difference between the negotiated LWOP policy and the policy
reinstituted by Respondent on March 13, 1986, was that the negotiated
policy removed limits on the amount of LWOP employees could use. Thus,
under the reinstituted Instruction, significant numbers of employees who
would have been carried in LWOP status under the negotiated policy are
now being placed in an absent without leave (AWOL) status. The number
of employees on AWOL has roughly doubled since Respondent's
reinstitution of the Instruction.
Another significant difference between the two policies is that under
the Instruction the approval for LWOP must come from the division or
department head while the negotiated policy permitted employees to
request LWOP from appropriate supervisors. A further difference in the
policies concerns the effect of LWOP use on merit promotions and on the
performance appraisal system. Under the negotiated policy an employee's
LWOP use would not be a factor in merit promotion, while it is a
possible adverse consideration in merit promotion under the Instruction.
Similarly, employees being carried in an AWOL status, who formerly
would have been on LWOP, may be adversely affected in their appraisals
since unauthorized absences can be considered in rating employees.
Employees have been subjected to disciplinary actions because, after
being refused LWOP, they were placed on AWOL.
At the time Respondent reinstituted the Instruction, the parties were
in negotiations over a second collective bargaining agreement. The
parties had exchanged complete sets of proposals, including proposals on
LWOP, had executed a ground rules agreement, and had commenced
negotiations in February 1986. GPO's first proposal proposed "no
change" in the language of the Master Agreement concerning leave. The
Joint Council submitted a counter-proposal which included a proposal for
in excess of 240 hours of LWOP to be approved by supervisors and for
mandatory approval for certain categories of employees.
The General Counsel contends that Respondent violated section
7116(a)(1) and (5) of the Statute by implementing its previous LWOP
policy without providing the Union notice and an opportunity to
negotiate the substance, impact, and implementation of this change in
working conditions. The General Counsel maintains that Respondent never
proposed reinstitution of the prior LWOP policy (Instruction) upon
expiration of the negotiated policy (Notice), and the negotiated policy
is completely silent as to what happens upon expiration of the
agreement. The General Counsel asserts that the negotiated LWOP
agreement had been incorporated by reference into the Master Agreement,
but, even if it were a separate agreement, Respondent's obligation was
to maintain the terms and conditions of the Notice upon its expiration.
The General Counsel claims that Respondents' unilateral action is
particularly egregious since the parties were actively engaged in
negotiations over a second master agreement and had exchanged proposals,
including specific LWOP proposals, at the time. The General Counsel
seeks a status quo ante remedy.
Respondent defends on the basis that the voluntary leave without pay
program contained in the Notice was never incorporated by reference into
the parties' Master Agreement; the Council made a clear and
unmistakable waiver of its bargaining rights; the dispute should have
been submitted to arbitration; and a status quo ante remedy is not
appropriate.
It is well settled that the duty to negotiate in good faith under the
Statute requires that a party meet its obligation to negotiate prior to
making changes in established conditions of employment, absent a clear
and unmistakable waiver of bargaining rights. Such a waiver may be
shown by the language of the agreement, the negotiations leading to the
agreement, or the past practices of the parties in implementing the
agreement. Department of the Air Force, Scott Air Force Base, Illinois,
5 FLRA 9 (1981). The Authority has also held that existing personnel
policies, practices, and matters affecting working conditions,
established pursuant to the parties' mutual obligation to negotiate over
mandatory subjects of bargaining, continue to the maximum extent
possible, upon the expiration of a negotiated agreement, absent an
express agreement to the contrary or unless modified in a manner
consistent with the Statute. U.S. Nuclear Regulatory Commission, 6 FLRA
18 (1981); Federal Aviation Administration, Northwest Mountain Region,
14 FLRA 644, 647 (1984).
The resolution of the dispute in this matter involves differing and
arguable interpretations of Article XIII of the Master Agreement, the
1983 agreement which resulted in GPO Notice 645.110, and a consideration
of the negotiations leading to the Notice. In cases involving disputed
interpretations of an agreement, the aggrieved party's remedy is through
the grievance and arbitration procedures available to the parties rather
than through unfair labor practice procedures. Veterans Administration
and Veterans Administration Medical Center, Lyons, New Jersey, 24 FLRA
No. 8, 24 FLRA 64, 69 (1986); Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma, 3 FLRA 512, 521-22 (1980).
Assuming, however, that the case is properly the subject of an unfair
labor practice proceeding on the theory that it involves an alleged
failure to bargain under the Statute and an alleged failure to maintain
existing working conditions upon the expiration of an agreement, the
record will be considered further on that basis. Tinker Air Force Base,
supra; Iowa National Guard and National Guard Bureau, 8 FLRA 500, 510
(1982).
A preponderance of the evidence fails to establish that Respondent
violated section 7116(a)(1) and (5) of the Statute when it terminated
the Notice and reinstituted the Instruction. Respondent based its
action on the Notice's clear and unmistakable termination/cancellation
language to which the Joint Council was bound.
I agree with Respondent that the voluntary LWOP policy negotiated by
the parties and contained in the Notice was not made a part of the
parties' Master Agreement and did not continue to exist after its
explicit cancellation date. The testimony of Respondent's negotiators
to this effect (Tr. 138-139; 147, 149-150; vol. 2, 10) is consistent
with the documentary evidence. Article XIII of the Master Agreement
provided that "Instructions . . . may negotiated by the parties after
this Agreement is signed and be incorporated by reference in the Master
Agreement." The parties were well aware that Instructions were issued
for directives which were permanent in nature while temporary policies
were issued as Notices with a specific cancellation date. The parties
not only agreed upon a "Notice," but it contained two specific
references to the agreement's expiration/cancellation date. It also
used the word "amend" rather than "supersede," as urged by the Union, to
reference the existing provisions of the permanet Instruction which
otherwise continued in effect. In addition to being an "Instruction,"
there is the striking absence of any statement in the Notice that it was
to "be incorporated by reference in the Master Agreement." The statement
in the Notice that it was negotiated by the parties, standing along,
cannot be construed to mean that it was incorporated by reference in the
Master Agreement and would continue to exist after its explicit
cancellation date. Cf. Norris Industries and Automobile Workers, Local
509, 96 LRRM 1078 (1977). During the negotiations, the Joint Council
traded the permanency of the provisions for guarantees concerning the
non-consideration of LWOP in merit promotions.
It is concluded that the Union clearly and unmistakably waived its
right to bargain over Respondent's decision on March 13, 1986 to put
back into effect the LWOP policy contained in GPO Instruction 645.11.
The clear language of GPO Notice 645.10 and its bargaining history
establish that its terms were to last only until March 13, 1986. The
Joint Council's agreement was a conscious surrendering of its position
that the LWOP provisions had to continue concurrently with the Master
Agreement. The GPO's decision on March 13, 1986 to reinstitute the LWOP
policy contained in GPO Instruction 645.11 was only the application of
the parties' agreement reached on April 15, 1983.
As negotiated, the Notice was a temporary policy on LWOP which could
have been replaced at any time by a new Instruction negotiated under the
provisions of Article XIII of the Master Agreement. In the absence of
such a new Instruction, the Notice terminated by its express terms and
the old Instruction automatically became effective. There is no
evidence that GPO ever refused to negotiate permanent "new GPO
Instructions" on leave under Article XIII of the Master Agreement.
After the 1983 temporary agreement on LWOP, the Council never requested
bargaining over LWOP until it submitted its proposals for the new Master
Agreement in 1986.
The Union was well aware from the Notice itself of its March 13, 1986
expiration date. The Union was also alerted to the expiration date by
the telephone conversation from a representative of Respondent in early
1986. It did not request bargaining on the impact and implementation of
what it should have known was an automatic return to the LWOP policies
in GPO Instruction 645.11 on that date.
It is concluded that a preponderance of the evidence does not
demonstrate that Respondent engaged in an unfair labor practice, as
alleged in the complaint, by implementing GPO Instruction 645.11 on
March 13, 1986.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following order:
The complaint in Case No. 3-CA-60461 is dismissed.
/s/ Garvin Lee Oliver
Administrative Law Judge
Dated: June 16, 1987
Washington, D.C.
(*) The Respondent's opposition to the General Counsel's exceptions
and the Respondent's cross-exceptions were untimely filed and have not
been considered.
(1) The Master Agreement became effective March 9, 1983 for a period
of three years. It provided for a renegotiation period, and that the
contract would remain in full force and effect during the renegotiation
period including mediation and impasses procedures.
(2) Council president Lord testified that some Notices inform
personnel of permanent policies. No example or other support was
provided for this assertion.
(3) Mr. Lord, Joint Council Chairman, testified that the Union's
final offer was that, if management would accept the March 13, 1986
expiration date, which would run concurrently with the Master Agreement,
the Union would agree to call it a Notice. I do not credit this
testimony as the basis for the final agreement. It is noted that GPO's
proposal of April 15, 1983 already included a March 13, 1986 expiration
date. The final agreement reflects that additional changes were made in
that proposal. These are consistent with other concessions on GPO's
part being the basis for agreement as testified to by Edward Blatt, a
GPO negotiator.
29 FLRA NO. 97
Department of the Navy, Naval Supply Center, Pearl Harbor, Hawaii and
Hawaii Federal Employees Metal Trades Council, AFL-CIO, Case No.
98-CA-70327 (Decided October 30, 1987)
7114(b)(4)(A), (B) and (C)
7116(a)(1) and (5) and (8)
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
AGENCY ULP (ALLEGED) 7116(a)(8)
7114(b)(4)(A)
INFORMATION, TYPES OF INFORMATION REQUESTED
NAMES AND ADDRESSES OF EMPLOYEES
In this unfair labor practice case, the Authority ruled that the
Naval Supply Center had violated section 7116(a)(1), (5) and (8) when it
refused to provide the Council with the names and home addresses of
bargaining unit employees.
The Authority rejected the agency's contention that it had no
obligation to provide the Council with the requested information because
the Service Employees International Union, Local 556, AFL-CIO is
performing the Council's representational functions. The Authority
ruled that all other arguments raised by the agency against the
disclosure of the information were disposed of by Authority precedent.
Case No. 98-CA-70327
DEPARTMENT OF THE NAVY, NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII
Respondent
HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
Charging Party
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Department of the Navy, Naval Supply
Center, Pearl Harbor, Hawaii (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
Hawaii Federal Employees Metal Trades Council, AFL-CIO (the Council)
with the names and home addresses of bargaining unit employees located
at the Naval Supply Center in Pearl Harbor, Hawaii. For the reasons
stated below, we find that the Respondent committed the unfair labor
practices as alleged.
The Council is the exclusive representative of a unit of employees of
the Respondent. The Council and the Respondent are parties to a
collective bargaining agreement which provides that the Respondent shall
recognize the officials and designated representatives of the Council.
Pursuant to the Council's by-laws, the Council designated the Service
Employees International Union, Local 556, AFL-CIO (SEIU) as the contract
administrator for the bargaining unit. Under those by-laws, a contract
administrator may be appointed by the Council to assist it in conducting
its business in certain units where the Council is the exclusive
representative. The contract administrator may be relieved in
accordance with the by-laws.
In its role as contract administrator SEIU has, on behalf of the
Council, filed and processed grievances, unfair labor practice charges
(except for the instant charge), and performed other unit
representational functions. The agreement between the Council and the
Respondent was negotiated by representatives of SEIU on behalf of the
Council. The agreement, which is signed by representatives of the
Council, SEIU, and the Respondent, is subject to an internal union
review which could affect the status of the contract administrator.
By letter dated February 20, 1987, the Council requested that the
Respondent furnish it with the names and home addresses of all unit
employees. On receipt of the letter, the Respondent contacted SEIU and
was informed by SEIU that it was unaware of the request and had no
desire for the names and addresses of unit employees. By letter dated
February 25, 1987, the Respondent informed the Council that it refused
to act on its request until notification was received from SEIU stating
that SEIU was in need of the information requested. SEIU has not
requested the names and home addresses of unit employees. The parties
stipulated that since February 25, 1987, and continuing to date, the
Respondent has refused to provide the Council with the names and home
addresses which the Council requested.
The parties also stipulated that the names and home addresses of the
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 to management officials
or supervisors relating to collective bargaining.
The Respondent contends that the information requested is prohibited
by both the Freedom of Information Act (5 U.S.C. Section 552) and the
Privacy Act (5 U.S.C. Section 552a). The Respondent asserts that the
Authority erred in its ruling in Farmers Home Administration Finance
Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) (Farmers Home),
petition for review filed sub nom. U.S. Department of Agriculture and
Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA,
No. 86-2579 (8th Cir. Dec. 23. 1986). Further, the Respondent argues
that the release of the names and home addresses of unit employees to
the Council is not required under section 7114(b)(4)(B) of the Statute
because SEIU performs the Council's representational functions, and
therefore it cannot be said that the Council requires the information
for a representational purpose.
The General Counsel argues that the Authority's decision on remand in
Farmers Home, in which the Authority concluded that section 7114(b)(4)
of the Statute entitled the exclusive representative to the names and
home addresses of employees in the bargaining unit, is dispositive of
the issue in this case. The General Counsel also contends that there is
no merit to the Respondent's argument that the Council has no need for
the information in light of SEIU's performance of the Council's
representational functions.
In our Decision and Order on Remand in Farmers Home, we 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 alternate means of
communication are available. Further, from the parties' stipulation, it
is evident that the other requirements of section 7114(b)(4)(A), (B),
and (C) have been met in this case.
The arguments made by the Respondent in this case are for the most
part the same as those asserted by the agency in Farmers Home, and we
reject them for the reasons stated in Farmers Home. For the following
reasons, we also reject the Respondent's contention that it has no
obligation to provide the Council with the requested information because
SEIU is performing the Council's representational functions.
The Council is the certified exclusive representative of the
bargaining unit. Both the Council and the contract administrator, SEIU,
are signatories to the collective bargaining agreement, from which
certain rights and obligations flow. The contract administrator's
authority to perform the Council's representational functions is derived
solely from the Council and is subject to change by the Council in
accordance with the Council's by-laws. Moreover, by virtue of its
status as the exclusive representative of the unit, the Council has
certain rights and responsibilities under the Statute regarding the
representation of unit employees. Section 7114(b)(4)(B) of the Statue
states that an agency has the obligation to furnish, upon request,
certain data "to the exclusive representative involved, or its
authorized representative(.)" As we stated in Farmers Home (see slip op.
at 8), a union's statutory obligations involve a broad range of
representational activities and an agency's duty to supply names and
home addresses information does not depend upon any separate explanation
by the union of its reasons for seeking the information. For these
reasons, the Council, as the exclusive representative, is entitled under
the Statute to the names and home addresses of unit employees.
Based on the parties' stipulation and our decision on remand in
Farmers Home, we conclude that the Respondent's refusal to provide the
Council with the names and home addresses sought in this case violates
section 7116(a)(1), (5), and (8) of the Statute.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Department of the Navy, Naval Supply Center, Pearl Harbor,
Hawaii shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the Hawaii Federal Employees
Metal Trades Council, AFL-CIO, the exclusive representative of a 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 the 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 Hawaii Federal Employees Metal Trades Council,
AFL-CIO, the exclusive representative of a unit of its employees, the
names and home addresses of all bargaining unit employees located at the
Department of the Navy, Naval Supply Center, Pearl Harbor, Hawaii
facility.
(b) Post at the Department of the Navy, Naval Supply Center, Pearl
Harbor, Hawaii facility copies of the attached Notice forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by the Commanding Officer and shall be
posted in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. Reasonable steps shall
be taken to ensure that such Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse or fail to furnish, upon request of the Hawaii
Federal Employees Metal Trades Council, AFL-CIO, the exclusive
representative of a 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 our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the Hawaii Federal Employees Metal Trades Council,
AFL-CIO, the exclusive representative of a unit of our employees, the
names and home addresses of all bargaining unit employees located at the
Department of the Navy, Naval Supply Center, Pearl Harbor, Hawaii
facility.
. . .
(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, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
29 FLRA NO. 96
Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor,
Hawaii and Hawaii Federal Employees Metal Trades Council, Case Nos.
98-CA-60042 and 98-CA-60043 (Decided October 30, 1987)
7116(a)(1) and (5)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
COMMITTEE, JOINT LABOR-MANAGEMENT
CONDITIONS OF EMPLOYMENT
UNILATERAL CHANGE IN CONDITIONS OF EMPLOYMENT
COMMITTEES, UNION PARTICIPATION
QUALITY CIRCLES
In this unfair labor practice case, the Authority, having found no
prejudicial error, adopted the findings, conclusions, and recommended
order of the administrative law judge.
The judge held that the Department of the Navy, Pearl Harbor Naval
Shipyard had violated section 7116(a)(1) and (5) when it revitalized an
existing plan, the quality circle program (QC), with modifications. The
modifications were substantial changes in the structure and operation of
the previous plan. The Coordinators, previously Facilitators, were
chosen by employees being nominated by a Shop Group supervisor and
selected by the QC Program Manager. Previously, an employee made known
his interest in being a Facilitator and was selected by the Steering
Committee. Before the modifications, the union had the right to have a
representative and an alternate on the Steering Committee.
The judge concluded Respondent's altering essential elements of the
QC program prior to giving the union notice and an opportunity to
bargain was a violation of its duty to bargain.
Case Nos. 98-CA-60042, 98-CA-60043
DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, PEARL HARBOR,
HAWAII
Respondent
HAWAII FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
Charging Party
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding relating to the implementation of
a quality circle program. The Judge found that the Respondent had
committed an unfair labor practice by changing conditions of employment
without providing advance notice and an opportunity to bargain to the
Charging Part (the Union). The Judge also found that the Respondent had
not committed other unfair labor practices alleged in the complaint.
The General Counsel has filed exceptions to the Judge's Decision and the
Respondent has filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Regulations and
section 7118 of the Federal Service Labor-Management Relations Statute
(the Statute), we have reviewed the rulings of the Judge at the hearing
and find that no prejudicial error was committed. The rulings are
affirmed. Upon consideration of the Judge's Decision and the entire
record, we adopt the Judge's findings, conclusions, and recommended
Order.
Pursuant to section 2423.29 of the Authority's Regulations and
section 7118 of the Statute, the Department of the Navy, Pearl Harbor
Naval Shipyard, Pearl Harbor, Hawaii, shall:
1. Cease and desist from:
(a) Implementing changes in the quality circle program relative to
bargaining unit employees without first obtaining the agreement of the
Hawaii Federal Metal Trades Council, AFL-CIO, the exclusive collective
bargaining representative.
(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) Withdraw Instruction 5200.15B and the quality circle program in
effect under the Instruction and operate the quality circle program
under the provisions of Instruction 5200.15A unless and until
Instruction 5200.15A is properly modified or withdrawn as required by
the Statute.
(b) Post at its offices in Pearl Harbor, Hawaii, copies of the
attached Notice on forms furnished by the Authority. Upon receipt they
will be signed by the Shipyard Commander and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards, where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that the
Notices are not altered, defaced, or covered.
(c) Notify the Regional Director, Region IX, Federal Labor Relations
Authority, within 30 days of the date of this Order, in writing, as
required under section 2423.30 of the Authority's Regulations, of the
steps it has taken to comply.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT implement changes in the quality circle program relative
to bargaining unit employees without first obtaining the agreement of
the Hawaii Federal Employees Metal Trades Council, AFL-CIO, the
employees' exclusive collective bargaining representative.
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 Statute.
WE WILL withdraw Instruction 5200.15B and the quality circle program
in effect under that Instruction and operate the quality circle program
under the provisions of Instruction 5200.15A unless and until
Instruction 5200.15A is properly modified or withdrawn as required by
the Statute.
. . .
(Agency or 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.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose
telephone number is: (415) 995-5000.
Case Nos.: 98-CA-60042, 98-CA-60043
DEPARTMENT OF THE NAVY, PEARL HARBOR NAVAL SHIPYARD, PEARL HARBOR,
HAWAII
Respondent
HAWAII FEDERAL EMPLOYEES, METAL TRADES COUNCIL, AFL-CIO
Charging Party
Karole A. Steinaner
For the Respondent
Clyde T. Hayashi
For the Charging Party
R. Timothy Sheils, Esq. and
Susan E. Jelen, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
This matter arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. (herein the Statute).
Upon unfair labor practice charges having been filed by the above
captioned Charging Party against the above captioned Respondent, the
General Counsel of the Federal Labor Relations Authority, by the
Regional Director for Region IX, issued a Consolidated Complaint and
Notice of Hearing essentially alleging Respondent changed working
conditions of bargaining unit employees by unilaterally implementing a
new quality circle program which program allegedly constituted bypassing
the Charging Party (herein the Union or MTC) through Respondent's
dealing directly with bargaining unit employees.
A hearing on the Complaint was conducted in Honolulu, Hawaii at which
all parties were represented and afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue orally.
Briefs were filed by Respondent and the General Counsel and have been
carefully considered. /1/
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
At all times material the Union has been the exclusive collective
bargaining representative of Respondent's non-supervisory employees
except management officials, professional employees and various
employees working with cryptographic equipment. In 1982 Respondent
implemented a pilot Quality Circle (QC) Program at the Pearl Harbor
Naval Shipyard (sometimes referred to as the Shipyard). The matter had
been discussed with the Union and the program was implemented with the
Union's concurrence. Apparently the pilot program proved successful and
on April 29, 1983, after negotiations with the Union on the matter, a QC
Program for shipyard employees was established. /2/ The program
appeared in a document entitled NAVSHIPYDPEARLINST 5200.15 (herein
Instruction 5200.15) which set forth how the QC Program would operate.
The Instruction included the following information:
"3. Background
a. A Quality Circle is a small group of people doing same type
of work, trained in problem solving, who voluntarily meet together
on a regular basis to identify, analyze and solve production and
other problems in their area. Quality Circles were developed in
Japan in 1962 and have played a significant role in improving the
quality of that country's output of goods and services. The
Quality Circles concept came to the United States in about 1972.
Since its arrival many U.S. companies and corporations and Naval
Shipyards have adopted the technique with good results.
"4. Objectives. The objectives of the quality circle program
are to:
a. Develop a positive, 'Think Shipyard,' attitude on the part
of employees and supervisors.
b. Reduce errors and enhance quality of workmanship.
c. Inspire more effective teamwork.
d. Promote job involvement.
e. Increase positive employee motivation.
f. Create a problem-solving capability.
g. Build an attitude of 'problem prevention.'
h. Improve shipyard communication.
i. Develop more harmonious manager/worker relationships.
j. Promote a personal and leadership development.
k. Promote safety awareness.
l. Promote a sense of pride of belonging.
m. Enrich the quality of working life.
n. Promote meaningful employment.
"5. Policy
a. The Q. C. Program will be managed by a Steering Committee,
comprised of personnel from Department and Offices of the
Shipyard. The committee shall be responsible for selecting the
program manager, facilitators, and determining their length of
service. The program manager and facilitators will be members of
the Quality Circle Steering Committee.
b. Participation of shipyard employees in Quality Circles will
be completely voluntary. Involved department employees are free
to join, not join, drop-out, or re-enter the program. However,
once an employee opts to participate, it should be with a
commitment to participate until at least one management
presentation is completed.
c. The number of circles to be established, number
facilitators, and circle expansion rate shall be controlled by the
Productivity Improvement Group. The Quality Circle Steering
Committee shall make recommendations to the group for approvals in
this area.
e. Quality Circles will have absolute autonomy within the
guidelines of this instruction regarding the selection of problems
on which to work. Employees and managers may make suggestions
through the Program Manager for consideration by the appropriate
circle.
f. Quality Circles will:
(1) Direct their primary attention to problems and projects
under their control.
(2) Assure that each member has an equal vote: One person, one
vote.
(3) Utilize the Quality Circle techniques as described in their
manual.
(4) Set up schedules for meetings and presentations.
(5) Identify, analyze, and solve problems. Management
approval, if necessary, will be obtained before proceeding to
implement solutions.
(6) Conduct presentations to management regarding specific
recommendations, accomplishments, and status.
(7) Attempt to improve communications, harmony, and involvement
throughout the Shipyard.
g. Quality Circles will not address such subjects as benefits
and salaries, employment policies, labor relations, personalities
or any other subjects deemed by the Steering Committee to be
outside the scope of the Quality Circle Program.
j. The Quality Circle Steering Committee shall be comprised of
designated representatives from Departments and Offices. The
Hawaii Federal Employees Metal Trades Council, AFL-CIO, may have a
representative on the Committee by submitting a list of not less
than three (3) members nominated by the MTC President to Code 160.
k. Prior to implementing proposed changes to personnel policy
or practices or other general conditions of employment submitted
by Quality Circles which adversely impact on bargaining unit
employees, the MTC will be notified.
"6. Responsibilities /3/
a. Shipyard Commander: The Shipyard Commander is committed to
the concept that quality of working life and productivity can both
be enhanced by active and vigorous management support of the
Quality Circles Program. To this end he will direct those
necessary actions to ensure positive management support of the
program.
b. Chairman -- Steering Committee: Will be responsible for
the indoctrination of appropriate personnel on Quality Circle
concepts.
c. The Steering Committee: Will provide guidance in the
implementation and conduct of the program. Specifically the
committee will:
(1) Establish goals and objectives for the Quality Circle
Program.
(2) Evaluate the qualifications of Facilitator and Program
Manager candidates and select the Facilitator and Program Manager.
(3) Develop milestones to identify and control expansion of
circles, and periodically review and update the milestones.
(4) Establish training requirements for the Facilitators and
Program Manager and training policy for the shipyard.
(5) Identify the parameters which will be used in baseline
measurements and evaluation of the program.
(6) Resolve conflicts which cannot be resolved by the Program
Manager, the Facilitator, or Circle Leader and participants.
(7) Establish policies for publicity of Q. C. Program.
(8) Review operating budget.
(9) Establish policies for awards and recognition (management
presentation certificates, pins, plaque, etc.).
(10) Establish policies for handling non-functioning circles.
(11) Establish general circle policies."
The Instruction went on to state that the Program Manager was
responsible for promoting, implementing, operating and the day to day
management of the QC Program including training of all personnel,
including circle leader selection and activities, monitoring
expenditures of the program to ensure they remain within budgetary
constraints established by the Quality Circle Steering Committee, acting
as liaison between the Steering Committee and QC leaders and issuing
written guidelines to QC leaders " . . . with the review/approval of the
Steering Committee." Facilitators were to work directly for the Program
Manager in effectuating the above responsibilities.
The QC Program was revised by Instruction 5200.15A dated May 7, 1984
after negotiations between Respondent and the Union. The program
remained substantially the same as the prior one except with regard to
operation of the Steering Committee, certain Union functions and
language regarding QC meetings. Thus, under, section 5 entitled
"Policy", supra, item "j" and "k" were revised and a new section "1" was
inserted as follows:
"j. The Quality Circle Steering Committee shall be comprised
of designated representatives from Departments and Offices as
noted below. The Hawaii Federal Employees Metal Trades Council,
AFL-CIO, shall have a representative and one alternate
representative on the Committee nominated by the MTC President.
The MTC representative shall be exempt from Quality Circle Leader
Training as noted below.
"k. Prior to implementing proposed changes to personnel policy
or practice or other general conditions of employment submitted by
Quality Circles which impact on bargaining unit employees, the MTC
will be notified and the above proposed changes will be negotiated
with the MTC if so requested prior to implementation.
"l. In all Quality Circle meetings attended by management
(excluding supervisory/management officials who are part of the
Circle and the Program Manager) and at all management
presentations by Quality Circles, the Chief Steward designated in
that particular shop, office or code shall be afforded the right
to be present. If the Chief Steward is unavailable, his/her
designated alternate shall be afforded the right to be present."
Under section 6. "Responsibilities", the language relating to the
Steering Committee in subsection c. was revised to read:
"c. The Steering Committee: Will provide guidance in the
implementation and conduct of the program. The Steering Committee
will consist of representatives from Code 130, 140, 150, 200, 300,
500, 600, and 2300 who have attended Quality Circle Leader
Training or equivalent. Representatives from other offices or
codes may be added to the steering committee as deemed necessary
by the Quality Assurance Director. To stimulate new ideas, two
representatives with the longest length of service on the Steering
Committee will normally be rotated every six months.
Specifically, the Steering Committee will . . . " /4/
In addition, the 1984 revision to the QC Program expanded language
relative to Department or Office heads arranging for QCs to meet one
hour each week during normal working hours.
The QC Program Manager was Melvin Nakagawa of Respondent's Quality
Assurance Office. He was assisted by a staff of four Facilitators and
one secretary to administer the program. Facilitators were supervisory
or non-supervisory employees who had expressed an interest in the
position and were selected by a committee from the Steering Committee.
Those selected to be Facilitators were then given leadership training in
QC operations. When a shop supervisor or employee conveyed interest in
forming a QC, the Program Manager and a Facilitator would meet with the
group to instruct them in QC concepts and problem solving techniques.
Thereafter the Facilitator would monitor the QC and provide any advice
or assistance needed. QCs met one hour each week during worktime,
identified what problems they wished to address and developed a proposed
solution. Thereafter, the QC made a presentation to a management group
which would determine whether the QCs proposal was feasible. The
management group could accept, decline or modify the proposal. A Union
representative was invited to attend the management presentation and
frequently did. Management presentation schedules were issued quarterly
and supplied to Steering Committee members.
The record reveals that QCs considered such various matters /5/ as
poor accessibility to storage records; inadequate utilization of
personnel during down time; time wasted; delays during engine testing;
no standardized material ordering system; inability to set up
equipment; lack of sharp tools; too many discrepancies in toolroom
inventories; lack of training; excessive time spent to dump rubbish;
poor training procedures; loss of time/money in overhaul procedures;
excessive time spent on paperwork; poor information on job
specifications; inadequate job transportation; unavailability of
tools; excessive back injuries on certain assignments; insufficient
forklifts; historical data not readily accessible or retrievable; lack
of equipment to perform work functions; lack of dumpsters and storage
cabinets; lack of a hot/cold water drinking fountain; awards for
non-use of sick leave and personal recognition to boost morale; and
establishing a designated covered lunch area with a bench for certain
employees working dockside.
The record further reveals that although the Steering Committee met
frequently in 1983, only five or six Steering Committee meetings were
held in 1984. /6/ At one meeting in 1984 at which the Union
representative was not present, the Steering Committee decided that
further meetings were unnecessary and meetings were suspended. /7/ This
action was taken since, according to the testimony of Program Manager
Nakagawa, the purpose of the Steering Committee was to establish
objectives, policies, responsibilities and procedures and since the
Committee concluded that the QC Program was successfully launched, no
further Steering Committee meetings were necessary and, in any event, it
could be revived in the future if required.
In October 1984 the Shipyard experienced a reorganization and the 34
QCs in operation began to rapidly diminish in number until by the end of
December 1984, only 10 QCs existed and by April 1985 only two remained
viable. During this period QC Program Manager Nakagawa was transferred
to the Management Engineering Information Office, his QC activities were
sharply reduced to a part-time function and all four Facilitators and
the secretary who had been detailed to the QC operation returned to
their original organizations.
In March 1985 the Shipyard Commander met with the approximately 6000
Shipyard employees in a series of large meetings dealing with increasing
productivity and lowering costs. During some of these sessions
employees raised matters related to the utilization of Quality Circles.
It would appear that as a result of these meetings the Shipyard
Commander issued a "Notice" on May 15, 1985 which stated as its
"purpose":
" . . . To establish a Shipyard Improvement Program, using
Quality Circle concepts, which is dedicated toward productivity
improvement, cost reduction, and overall work improvement in the
performance of ship repairs and overhauls, and which will provide
an avenue for communicating needs in these areas to senior
Shipyard management and the Shipyard Commander. The thrust of
this Program is twofold;
"a. promoting involvement of individual workers in eliminating
impediments to job progress and developing productivity
enhancements.
"b. promoting collaborative efforts of such overhaul
principals as Ship Superintendents, General Foremen, Code 365
Chief Test Engineers, Planners, and Project Engineers, to support
timely achievement of overhaul milestone events."
The Notice further provided, inter alia, for detailing personnel as
follows:
"(1) A Program Manager (designated Code 100QC) will promote,
implement, operate, and manage this program on a day-to-day basis,
and will serve as the liaison between the Program Coordinators in
the Operations Shop Groups and senior Shipyard management/Shipyard
Commander. He will also train the teams made up of key overhaul
personnel in Quality Circle techniques, monitor their progress,
and serve as liaison between these teams and senior Shipyard
management/Shipyard Commander.
"(2) A Program Coordinator will be assinged to each Operations
Shop Group, to train shop teams in Quality Circle techniques and
to manage the Program within the Shop Group. The Program
Coordinator will monitor and advise Code 100QC of progress within
the Group and provide liaison between team members and shop
management for implementation of initiatives identified by shop
teams."
In late May 1985 Union Vice President Galen Gregory received a copy
of the Notice from a steward. Accordingly, on June 5 Gregory sent the
following letter to Jeffrey Wataoka, head of Respondent's Employee
Relations and Services Division:
"It has been brought to my attention by one of our Stewards
that (a Notice) dated 15 May 1985 has been issued without
notification to the HFEMTC or to myself, a member of the Quality
Circle Steering Committee. I believe this to be a case of bad
faith bargaining and management contempt for the Civil Service
Reform Act.
"Will you please rectify this situtaion to foster good
labor-management relations? Please contact me personally as to
your findings."
On June 20, Wataoka replied, stating inter alia:
"This is in response to your letter of June 5, 1985 concerning
the Notice on Shipyard Improvement Program. As indicated in the
Notice, the program will utilize Quality Circle concepts of which
you are familiar. In our discussions, you expressed concern about
proposed changes in the Quality Circles Program without MTC input.
I have discussed this matter with Mr. Melvin Nakagawa, the
Program Manager for Quality Circles (Code 100QC), /8/ and he has
assured me that the basic Quality Circles Program is not changed
(i.e., prior to implementing proposed changes to personnel
policies, practices, or other general conditions of employment
submitted by the Quality Circles, the MTC will be notified and the
changes will be negotiated as appropriate. Further, the Chief
Steward in a particular organization shall be afforded the right
to be present at management presentations by Quality Circles."
Within a few days Gregory met with Wataoka and Nakagawa. Gregory
complained that the Union had not been informed about Respondent
re-establishing the QC Program. /9/ During the conversation Gregory was
informed that the new Improvement Program would not involve any
substantive changes in the QC Program or the Union's rights with regard
to that program. However, Nakagawa indicated that there would be some
changes in the QC Program conforming to the Shipyard Commander's wishes.
Gregory asked why the Notice was issued if the QC Program hadn't
changed. Management had difficulty responding to the question but
assured Gregory that if any changes were made, the Union would be
notified. Gregory inquired as to what happened to the Steering
Committee that was supposed to help administer the program since it had
not met for some time. Nakagawa acknowledged that the Steering
Committee had not met and indicated that the Union hadn't been attending
the meetings when they were held. Gregory told Nakagawa and Wataoka
that any change in the QC Program including the status of the Steering
Committee should be set forth in a proposed instruction so the Union
would have an opportunity to negotiate on the matter. Nakagawa
indicated he would get a proposed instruction to the Union "shortly".
On July 3, 1985, without further notice to the Union, the Shipyard
Commander issued a Memorandum which set forth the following "immediate
steps" to be taken by various Departments to expedite the implementation
of the Shipyard Improvement Program with enclosures which set forth
detailed responsibilities of the following Departments and personnel:
(1) Provide Code 100QC with lists of nominees from each of the
Production Shop Groups for the position of Program Coordinator.
Nominees shall be from positions with skill levels compatible with
the responsibilities listed in enclosure (1) for Program
Coordinators. Code 100QC will select individuals from this list
for detail to the Program Coordinator positions.
(2) Provide Code 100QC with lists of key overhaul personnel
(Planners, Ship Superintendents, Chief Test Engineers, General
Foreman) for participation in this Program as members of submarine
and surface ship project teams.
(1) Provide Code 100QC with lists of key overhaul personnel
(waterfront engineering support team) for participation in this
Program as members of submarine and surface ship project teams.
(1) Establish cost class to cover charges incurred by this
Program including labor expenditures by the Program Manager,
Program Coordinators, and team members.
(1) Select personnel for detail as Program Coordinators in the
Operations Shop Groups. Direct Program Coordinators in
establishing the operating structure for this Program in the
Operations Shops, using the guidelines provided in enclosures (1)
and (2).
(2) Develop a network of QC project teams comprised of key
overhaul personnel, using guidelines provided in enclosures (1)
and (2).
(3) Develop strategy for extending this Program throughout all
Shipyard Departments and Offices to reduce cost of our total work
operations."
Shortly after the issuance of the July 3 memorandum, four
Coordinators /10/ were appointed by different shop group Department
heads and added to Code 100QC under Nakagawa's leadership. By late
August the four Coordinators had completed 56 hours of QC Coordinator
training.
On August 29 an article appeared in the Shipyard Log, the Shipyard
newspaper distributed to all employees, announcing Nakagawa as "head of
the newly established Quality Circle (QC) Shipyard Improvement Program"
and the selection of Coordinators. After reading the article Gregory
confronted Wataoka and complained that although the Union had been
promised a copy of a proposed instruction on the matter, the article
indicated the program had already been set up prior to negotiations with
the Union. Wataoka admitted a mistake had occurred and promised to
provide the Union with a proposed instruction by the third week of
September.
In September and October 1985 the number of QCs at the Shipyard began
to increase. /11/ During this same period Union Vice President Gregory
made repeated requests from management for a proposed instruction
delineating the changes which the new Shipyard Improvement Program made
to the QC Program which the Union had previously negotiated (Instruction
5200.15A, supra). Although apologetic, Respondent did not provide a
proposed instruction to Gregory until October 10, 1985 when Wataoka gave
Gregory a draft copy of the revised instruction which was called a Chop
Chain version. The Chop Chain version was for submission to supervisors
and management for comment before top management decided on an ultimate
instruction. Wataoka told Gregory that the Union could submit comments
if it wished and after comments were received from management,
Respondent would notify the Union and give it an opportunity to
negotiate on the matter. The Chop Chain version differed from
Instruction 5200.15A, supra, primarily in that different objectives and
policy statements were listed and the Steering Committee was eliminated.
During this time period Respondent's QC Coordinators were meeting
with various shop employees to explain the operation and formation of
QCs and solicit interest in QC leadership training. One such meeting
occurred in Shop 17 on October 10, 1985 where no QC had previously
existed. In response thereto, MTC Chief Steward Peter Teijeiro wrote
the Shop Superintendent contending the formation of a QC in Shop 17
would be a change in working conditions and stating, inter alia:
"I believe that the proposal to implement quality circles in
Shop 17 is negotiable and I am asking management's proposal in
terms of how they plan to proceed with the quality circles program
in writing, and submit it to the Union for negotiation prior to
implementation of any quality circles in Shop 17."
Wataoka responded to Teijeiro's letter, stating:
" . . . we currently have a Quality Circle Program in the
Shipyard. Therefore, the formulation of new circles does not
constitute a change in general working conditions of employees.
Coincidentally, Mr. Melvin Nakagawa (Code 100Q), Mr. Galen
Gregory, and I met on the same date of your letter to discuss
changes to the current instruction. When management completes the
instruction, the MTC will be asked to provide comments.
"The Chief Steward of each shop/office has a significant role
in the Quality Circle Program. Specifically, cognizant Chief
Stewards will be afforded the opportunity to attend management
presentations by Quality Circles. Further, the MTC will be
notified prior to implementation of proposed changes to personnel
policy or practice or other general conditions of employment
submitted by Quality Circles which impact on bargaining unit
employees. If requested, the proposed changes will be negotiated
in accordance with the CSRA."
Teijeiro challenged Wataoka's position in a letter of October 16,
replying, inter alia:
"The QC Program that was presented in Shop 17 was not the same
as the program currently in the Shipyard. There are many changes
that are being implemented that contradicts the old instructions.
"Some of the significant changes are as follows:
1. The objectives have changed tremendously and no longer
encompasses those objectives of the Union.
2. The current Shipyard instruction provides for a
representative of the HFEMTC on the QC Steering Committee.
3. There are no facilitators but only team leaders.
"There are many more changes to the QC Program that was
unilaterally changed by the management team without first allowing
the Union to bargain on the changes as allowed for by law.
"Most importantly, there is no statement of commitment by the
Shipyard Commander to the program. Also, there seems to be a
preplanned designed attempt to keep the Union out of the program."
Wataoka replied on October 25:
"Your letter of October 16, 1985 expressed dissatisfaction with
my response concerning the formulation of new Quality Circles in
Shop 17. My reply was based on the premise that there would not
be a change in general working conditions of employees. If there
is a change in working conditions affecting bargaining unit
employees, management is obligated to notify and negotiate, as
appropriate, the proposed personnel action.
"You asked to negotiate the Quality Circle Program prior to
implementation in Shop 17. I plan to notify the MTC of the
changes in the current instruction and provide the officials an
opportunity to comment. I anticipate this will occur in
approximately three weeks. . . . Please contact Ben or Galen
regarding your participation in negotiations."
On or about November 13 and November 15 the Union served copies of
two unfair labor practice charges on Respondent, one alleging unilateral
implementation of a new QC Program in Shop 64F and the other alleging
unilateral changes in the established QC Program.
On November 22, 1985 Wataoka sent the Union a copy of the proposed QC
Program instruction (Instruction 5200.15B). The proposed instruction
was almost identical in content to the Chop Chain version previously
given to the Union on October 10, supra. While the proposed instruction
was similar to Instruction 5200.15A, it varied significantly from the
prior instruction in various ways, e.g.: by changing the "Objectives;
deleting the existence of a Steering Committee, many of the functions of
which were given to the Program Manager; the manner in which
Coordinators, Facilitators under the prior program, were selected; and
no longer affording the Union a right to be present at all QC meetings
attended by management although the Union was still permitted to attend
QC management presentations as before. /12/ QCs were still not to
address subjects such as "benefits and salaries" etc. and the Union was
to be accorded the right to negotiate on proposed changes as set out in
Instruction 5200.15A. The "Objectives" section of the proposed
instruction provided:
"4. Objectives. The thrust of the Program is to recommend
actions in the areas of productivity improvement, cost reductions
and overall improvement in the performance of ship repairs and
overhauls. The keys to achieving these objectives rest in our
collective ability to inspire effective teamwork, improve Shipyard
communications, develop harmonious manager/worker relationship and
encourage joint identification of problems to afford quick
resolutions. A desirable by-product would be increased morale and
worker involvement."
Under "6. Responsibilities," Operations Officers (presumably under
the jurisdiction of Department/Office Heads) were required to "(1)
Assign personnel to serve full time as QC Program Coordinators in each
Operations Shop Group to carry out responsibilities described in (the
Instruction)".
On November 22 when Wataoka sent the Union a copy of a proposed
instruction on the QC Program he requested the Union provide its
"comments" on the proposed instruction by November 29. At the request
of Vice President Gregory the comment time was entended to December 6.
Wataoka met with Union President Benjamin Toyama six or seven times
during the period between November 22 and December 6 to discuss the QC
issue but Toyama ultimately concluded he would not submit any proposals
on the subject. Toyama explained the parties' respective positions at
the final meeting on December 6 as follows:
"My basic thing was they had begun a new program without
letting the union know and what I wanted them to do was cease and
desist, stop the program, and negotiate this new program with the
union.
"Their position was they could not stop whatever they had on
the road; that they had to continue with what they had because
the shipyard commander wanted it. 'We can recognize your
concerns, however, the program can continue.'
"My position was you do what you want to and we will do what we
have to, and I subsequently -- I had it adjudicated as to an
unfair labor practice."
On December 10, 1985 Respondent issued QC Instruction 5200.15B which
was identical to the proposed instruction given to the Union on November
22.
The General Counsel contends: the 1985 QC Program was a new program,
the prior QC Program having been abandoned; the QC Program was a
permissive subject of bargaining requiring full agreement from the Union
before it could be implemented, which agreement never occurred; and
alternatively, the QC Program was a mandatory subject of bargaining and
Respondent failed to provide the Union with notice and an opportunity to
bargain on the matter prior to implementing the change in a condition of
employment. The General Counsel further contends that absent agreement
or fulfilling bargaining obligations, the operation of the QC Program
constituted a bypass of the Union as the employees' collective
bargaining representative. As part of the remedy for the alleged
conduct the General Counsel requests that the QC Program be withdrawn,
leaving a situation where no QC Program exists.
Respondent denies that the 1985 QC Program was a new program and
contends it was merely a revitalization of the prior program with only
minor modification and the Union was given an opportunity to bargain on
the changes but declined. Respondent further contends that the QC
Program was not a permissive subject of bargaining involving bypassing
the Union but rather simply an information gathering device permissible
under the Statute, and, in any event, the Union acquiesced in the use of
QCs.
I find the Quality Circle Program herein constituted a permissive or
voluntary subject of bargaining wherein it could not be implemented as
described in Instruction 5200.15A or B without the concurrence of the
Union. In my view the Quality Circles herein, in concept and in
operation, exist, at least in part, to deal with management concerning
conditions of employment. Such is the function of the Union. See NLRB
v. Cabot Carbon Co., 360 U.S. 203 (1959), 44 LRRM 2204. The
"Objectives" sections of Instruction 5200.15A and B, supra, clearly
reveal matters concerning conditions of employment which the Union is
necessarily entitled to be given an opportunity to deal with Respondent.
Assuming no Union acquiescence in this procedure, it is clear that in
achieving the stated objectives, the QCs are designed to bring employees
and management together to deal with matters with which the Union has a
direct interest. While both Instructions indicate that QCs were not to
" . . . address such subjects as benefits and salaries, employment
policies, labor relations, personalities or other subjects deemed . . .
to be outside this scope of the Quality Circle Program", both
Instructions also indicate that the program contemplates employees and
managers will be dealing with condition of employment normally the
exclusive right of the Union. Thus, sections 5k and 5h of Instruction
5200.15A and B provide:
"Prior to implementing proposed changes to personnel policy or
practice, or other general conditions of employment submitted by
QC teams which impact on bargaining unit employees, the Metal
Trades Council will be notified and the above proposed changes
will be negotiated with the MTC if so requested prior to
implementation."
The presence of this language reveals it was assumed that matters
concerning personnel policies or practices or other general conditions
of employment might well be the subject of QC considerations.
Further, QCs operate by having unit employees discussing matters with
supervisors and managers in order to resolve problems which involve
conditions of employment. Indeed, the record reveals that in practice
QCs have considered and dealt with matters related to employee training,
establishing a lunch facility, the lack of hot/cold water drinking
fountains and safety and awards, areas which generally encompass matters
found by the Authority to constitute conditions of employment. See e.g.
Association of Civilian Technicians, New York State Council and State of
New York, Division of Military and Naval Affairs, Albany, New York, 11
FLRA 475 (1983), proposal 3; American Federation of Government
Employees, AFL-CIO, Social Security Local No. 1760 and Department of
Health and Human Services, Social Security Administration, 9 FLRA 813
(1982), proposal 2; American Federation of Government Employees, Social
Security Local 3231, AFL-CIO and Department of Health and Human
Services, Social Security Administration, 16 FLRA 47 (1984); American
Federation of Government Employees, AFL-CIO, Council of Prison Locals
and Department of Justice, Bureau of Prisons, 11 FLRA 286 (1983); and
National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).
I reject Respondent's contention that QCs were mere information
gathering devices permissible under the Statute. The Authority has
frequently held that no unlawful bypass will be found where an employer
seeks to elicit factual information and the opinions of employees to
ensure the efficiency and effectiveness of its operations. Social
Security Administration, Baltimore, Maryland, 20 FLRA 768 (1985);
United States Customs Service, 19 FLRA 1032 (1985); and Internal
Revenue Service (District, Region, National Office Units), 19 FLRA 353
(1985). However, in so holding the Authority has also stated that an
employer's direct contacts with employees must not be conducted in such
a way as to amount to attempting to change conditions of employment or
negotiate directly with employees concerning matters which are properly
bargainable with the exclusive representative. In the case herein, the
QC Program envisioned discussions between employees and supervisors
concerning negotiable matters, supra, and the presentation of proposals
to management resulting in changes in conditions of employment. In
these circumstances I conclude the contacts between Respondent and its
employees were conducted in such a way as to exceed lawful gathering of
facts and opinions from employees.
Accordingly, I conclude that by design and practice QCs performed the
function of dealing with management concerning conditions of employment,
the rightful and exclusive role of the collective bargaining
representative. The operations of QCs herein would then have
constituted an unlawful bypass of the Union, except the Union consented
to such bypass by agreeing to Instruction 5200.15A. The Union therefore
could not claim to have been undermined by QCs when it negotiated and
agreed to the vehicle which created the bypass. However, subsequent to
the agreement on the QC Program in 1984 and its implementation, QCs
began to disappear. The General Counsel argues that the disuse of QCs
amounted to abandonment of the program and Respondent's actions in 1985
constituted the establishment of a new QC Program. The General Counsel
reasons that since the Union never agreed to the formation of the new
program, a permissive subject of bargaining, Respondent violated the
Statute by implementing the 1985 program, the content of which is
reflected in Instruction 5200.15B, and bypassed the Union without its
consent.
I find the 1985 QC Program was not a new program but rather a
revitalization and continuation of an existing plan, albeit with some
modifications. QCs never did go entirely out of existence. The record
reveals that although the number of QCs declined from 34 in December
1984 and the Facilitators had been disbanded, there remained two QCs
viable in April 1985. Thus in May 1985 there still existed a QC Program
with a part-time Program Manager when the Shipyard Commander called for
a "Shipyard Improvement Program, using Quality Circle concepts".
Thereafter the Program Manager began to function on a full-time basis,
Coordinators (formerly Facilitators) were appointed and efforts to
reemphasize the QC Program produced more QCs which operated in a manner
very similar to the prior QCs. In these circumstances I conclude that
Respondent's conduct vis a vis a QC Program was merely the reaffirmation
of an existing policy and the reemphasis did not change a condition of
employment with regard to the existence of a QC Program. Cf. Department
of Health and Human Services, Social Security Administration, Baltimore,
Maryland, 17 FLRA 1011 (1985); United States Department of the
Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636
(1984); and Department of the Treasury, Internal Revenue Service,
Cleveland, Ohio, 6 FLRA 240 (1981).
However, Respondent not only reaffirmed the QC Program but in the
process made substantial changes in its structure and operation.
Coordinators, previously Facilitators, /13/ were chosen by employees
being nominated by a Shop Group supervisor and selected by the QC
Program Manager. Previously, an employee made known his interest in
being a Facilitator and was selected by the Steering Committee. True
the Steering Committee had been disbanded without objection from the
Union, but, as admitted by Program Manager Nakagawa, it could have been
revived if required. Indeed, in order to have Coordinators the Steering
Committee was required to exist since under Instruction 5200.15A the
selection of Facilitators was the responsibility of the Steering
Committee.
Further, in revitalizing the QC Program the deletion of the Steering
Committee itself was another major change. Apart from its Facilitator
selection function, the Steering Committee had numerous other functions
which could have been exercised in the revitalization process. Thus, as
listed above, the Steering Committee had a part to play in establishing
roles and objectives of the QC Program; developing "milestones" to
identify and control the expansion of circles; establishing training
requirements for Coordinators; establishing policies for publicity of
the QC Program; and establishing policies for handling non-functioning
circles and general policies as well. Most importantly, the Union had
the right to have a representative and an alternate on the Steering
Committee under Instruction 5200.15A, which right was deleted when the
QC Program was revitalized. /14/ While the Union may not have desired
to attend Steering Committee meetings in 1984 and had no objection to
meetings being discontinued, this does not mean that it was consenting
to the abolishment of the Steering Committee as an element of the QC
Program and agreeing to have all Steering Committee functions turned
over to the QC Program Manager. Rather, it appears that after the QC
Program was developed and had been established and in operations under
Instruction 5200.15A, the Union found no great need to attend Steering
Committee meetings and declined to do so. Such conduct will not support
a conclusion that the Union wished to abandon its participation for all
time for all purposes and grant Respondent full authority to run or
revise the Quality Circle Program without Union involvement.
Accordingly, I conclude Respondent's deletion of the Steering Committee
when it revitalized the QC Program in 1985 constituted a substantial
change which required agreement of the Union before being effectuated.
The record reveals that the above changes were made prior to
notification to the Union and without the Union's agreement. Thus, when
Respondent finally gave the Union a copy of the Chop Chain draft on
October 10, 1985 and the proposed instruction on November 22 indicating
deletion of the Steering Committee and a new method of selection of
Coordinators and other changes as well, the two changes noted above
involving significant aspects of the QC Program had already been
effectuated. Giving the Union an opportunity to bargain after changes
have been made does not satisfy the obligations imposed by the Statute.
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9
(1981). Accordingly, even assuming that the QC Program was not a
permissive subject of bargaining, I conclude Respondent's altering
essential elements of the Program prior to giving the Union notice and
an opportunity to bargain was a violation of its duty to bargain under
section 7116(a)(1) and (5) of the Statute.
With regard to a remedy, I shall recommend Respondent withdraw
Instruction 5200.15B and continue to operate the QC Program under the
provisions of Instruction 5200.15A unless and until that instruction
isproperly modified or withdrawn. Thus, if QCs are to continue under
Instruction 5200.15A, Coordinators must be reselected as set forth in
Instruction 5200.15A (with regard to Facilitator) and any other QC
conduct must proceed under that Instruction including the provisions
relating to the functions of the Steering Committee of which the Union
is a part. However, I would not require that existing QCs be
disestablished while Coordinators (Facilitators) are being reselected
under Instruction 5200.15A if Respondent desired to follow that course
of action since, except for Coordinator selection, QCs appear to be
operating much the same currently as they did previously under
Instruction 5200.15A. In these circumstances disestablishment would
seem to be needlessly disruptive.
In view of the entire foregoing I conclude Respondent violated
section 7116(a)(1) and (5) of the Statute and recommend the Authority
issue the following:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Navy, Pearl Harbor Naval
Shipyard, Pearl Harbor, Hawaii shall:
1. Cease and desist from:
(a) Implementing changes in the Quality Circle Program relative
to bargaining unit employees without first obtaining the agreement
of the Hawaii Federal Employees Metal Trades Council, AFL-CIO, the
employees' exclusive collective bargaining representative.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights assured by the
Federal 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) Withdraw Instruction 5200.15B and the QC Program in effect
thereunder and continue to operate the QC Program under the
provisions of Instruction 5200.15A unless and until Instruction
5200.15A is properly modified or withdrawn as required by the
Statute.
(b) Post at its Pearl Harbor, Hawaii facility 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 Shipyard Commander or a designee and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, 901 Market Street, Suite 220, San
Francisco, California, 94103, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/s/ Salvatore J. Arrigo
Administrative Law Judge
Dated: March 20, 1987
Washington, D.C.
(1) Counsel for the General Counsel's unopposed motion to amend the
transcript as to minor matters is hereby granted.
(2) The collective bargaining unit is comprised of approximately 5000
employees.
(3) Item "6" was obviously misnumbered "5" on Instruction 5200.15.
(4) The specifically designated responsibilities of the Steering
Committee continued as set forth in the prior instruction.
(5) The items were taken from management presentations scheduled for
late 1983, QC minutes for 1984 and 1985, and testimony regarding a 1986
QC discussion.
(6) Meetings were generally called by the Steering Committee Chairman
but could be called by any member which included eight members picked by
Department heads, four Facilitators and a Union representative.
(7) Although notified of scheduled Steering Committee meetings and
having an "open invitation" to attend, Union representatives were
present only at perhaps two such meetings in 1983 and 1984.
(8) On May 31, 1985, Nakagawa was assigned to the QC Program Manager
position on a full-time basis.
(9) Apparently Gregory was under the impression that the QC Program
had been completely dissolved.
(10) Coordinators performed substantially the same functions as
Facilitators under Instruction 5200.15A.
(11) At the time of the hearing there were 17 QCs at the Shipyard.
(12) Numerous minor changes also appeared in the proposed
instruction.
(13) I do not consider the redesignation of Facilitators to
Coordinators to be a program change giving rise to a duty to bargain.
(14) I conclude the Steering Committee was conclusively removed from
the QC Program when Coordinators were appointed in 1986 since the prior
QC Program provided for Coordinator (Facilitator) selection by the
Steering Committee.
WE WILL NOT implement changes in the Quality Circle Program relative
to bargaining unit employees without first obtaining the agreement of
the Hawaii Federal Employees Metal Trades Council, AFL-CIO, the
employees' exclusive collective bargaining representative.
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 withdraw Instruction 5200.15B and the QC Program in effect
thereunder and continue to operate the QC Program under the provisions
of Instruction 5200.15A unless and until Instruction 5200.15A is
properly modified or withdrawn as required by the Statute.
. . .
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
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) 995-5000).
29 FLRA NO. 95
NAGE, SEIU and Michigan Army National Guard and NAGE, SEIU and
Missouri Army National Guard, Case Nos. 0-NG-1391 and 0-NG-1406 (Decided
October 30, 1987)
7103(a)(14)
7105(a)(2)(E)
7106(a)(2)(B)
7106(b)(1)
LEAVE
ADMINISTRATIVE LEAVE
MILITARY EDUCATION PROGRAM
LEAVE WITHOUT PAY
NATIONAL GUARD
LEAVE
TRAINING
TRAINING
ASSIGNMENT OF TRAINING
TYPE OF TRAINING, DECISIONS REGARDING
MILITARY TRAINING
UNITED STATES CODE
32 U.S.C. 709(a)
A nonnegotiable proposal would have permitted employees to substitute
certain military training for that required by the Military Education
Program (MEP). (proposal 1)
A nonnegotiable proposal would provide that technician employees will
not be required to use annual leave or be placed in a leave-without-pay
statuts in order to attend MEP training. According to the Union,
technician employees would be placed on administrative leave. (proposal
2)
A nonnegotiable proposal would permit a technician to have the choice
of attending MEP training in a civilian status with appropriate per diem
expenses or in a military status on military leave or leave-without-pay
from their civilian technician position.
The Authority cited Delaware Chapter, Association of Civilian
Technicians and Delaware National Guard, 28 FLRA No. 134 (1987), which
present essentially the same issues, as precedent for finding these
proposals outside the duty to bargain because they concern the military
aspects of civilian technician employment.
Case No. 0-NG-1391, Case No. 0-NG-1406
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIUS, AFL-CIO
Union
MICHIGAN ARMY NATIONAL GUARD
Agency
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Union
MISSOURI ARMY NATIONAL GUARD
Agency
These cases are before the Authority because of negotiability appeals
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). Since each case
involves issues as to the negotiability of three identical proposals for
which the parties offered the same arguments, we have consolidated the
cases for decision. For the reasons which follow, we find these
proposals outside the duty to bargain.
This case presents essentially the same issues as Delaware Chapter,
Association of Civilian Technicians and Delaware National Guard, 28 FLRA
No. 134 (1987). The employees represented by the Union are National
Guard technicians who, as a condition of their employment, must become
and remain military members of the National Guard and must maintain the
military grade specified for their technician positions. The proposals
here concern the Military Education Program (MEP), a requirement which
is applicable to Active Guard and Reserve (AGR) and to the technicians
involved in this case. MEP training applies to the military aspect of a
technician's employment. While attending MEP training, technicians are
in military status. The training is a requirement for military
promotion.
Technicians who have qualified for military promotions through
attendance at state run NCO Academys (sic) or reserve component
courses and were substantially promoted between 7 March 1985 and
12 November 1986 are deemed to have satisfied MEP requirements for
promotion to current grade held.
Technicians who have qualified for military promotions by
attendance at state run NCO Academy or reserve component course
will not be required to use their annual leave or be placed in a
leave without pay status to satisfy any new military education
requirements for promotion.
Technicians who attend an active component non-commissioned
officer course to satisfy a MEP requirement for promotion will be
given the choice of attending in a military status or civilian
status.
a. If attending in a military statuts, they will be granted
leave without pay status after the expiration date of all military
leave.
b. If in a leave without pay status, the technician will be
covered by the Federal Employees Health Program without cost for
365 days.
c. If the technician requests to attend in a civilian status,
the technician will be granted per diem in accordance with JTR
Volume II.
The Agency raises three general arguments with respect to the
negotiability of each proposal. The first argument is that these
proposals concern the Agency's Military Education Program (MEP) which is
a military requirement and not a condition of employment under section
7103(a)(14) of the Statute. Therefore, the Agency argues that these
proposals are outside the duty to bargain. The second argument raised
by the Agency is that there is a compelling need for the establishment
of the MEP policy. That is, the Agency states that the MEP is essential
for maintaining highly trained technician personnel. According to the
Agency, these technicians are employed under 32 U.S.C. Section 709(a) to
administer and train the National Guard. Thus, the Agency argues that
the MEP is essential to its mission to train and administer the National
Guard. Lastly, the Agency argues generally that because these proposals
concern military training and are not conditions of employment, they are
not appropriate arrangements which can be negotiated under the Statute.
In addition to these general arguments, the Agency claims that
Proposal 1 violates management's rights to assign work under section
7106(a)(2)(B), and to determine the methods and means of performing work
under section 7106(b)(1). As for Proposals 2 and 3, the Agency argues
that they also violate management's right to determine the methods and
means of performing work and that they therefore are not negotiable.
Furthermore, the Agency argues that these proposals do not concern
conditions of employment since these matters are covered by law and
regulation.
The Union argues that these proposals constitute appropriate
arrangments since they address the impact and implementation of the MEP
requirements on technicians.
In Delaware Chapter, Association of Civilian Technicians and Delaware
National Guard, 28 FLRA No. 134 (1987), we found eight proposals
concerning the impact of the same Military Education Program to be
nonnegotiable because they all dealt with the military aspect of
civilian technician employment; that is, military training under the
Military Education Program. The same Military Education Program is
involved in this case.
Proposal 1 provides that employees would be permitted to substitute
certain military training for that required by the MEP. It is to the
same effect as Proposal 1 in Delaware National Guard which also would
have permitted a technician employee to substitute certain military
training for that required by the MEP.
Proposals 2 and 3 concern the statuts (military or civilian) of
technicians while attending MEP training. Specifically, Proposal 2
provides that technician employees will not be required to use annual
leave or be placed in a leave-without-pay statute in order to attend MEP
training. Rather, according to the Union, technician employees would be
placed in an administrative leave status. Petition for Review at 2;
Reply Brief at 4. In other words, the technicians would remain in a
civilian status but be excused from their duties as civilian technicians
with pay and without charge to leave for the duration of the MEP
training. Proposal 3 expressly permits a technician to have the choice
of attending MEP training in a civilian status with appropriate per diem
expenses or in a military status on military leave or leave-without-pay
from their civilian technician position. In this respect, Proposals 2
and 3 in this case are to the same effect as Proposals 4 and 6 in
Delaware National Guard which also concerned the status (military or
civilian) of civilian technicians while attending MEP.
Further, subsection b of Proposal 3 requires the continuation of
health insurance benefits during the employee's conversion to military
status while attending MEP training. To this extent, Proposal 3 is to
the same effect as subsection b of Proposal 2 in Delaware National Guard
which also requires the continuation of certain fringe benefits
including health insurance benefits while a technician was attending MEP
training in a military status. Thus, for the reasons more extensively
explained in Delaware National Guard we find the proposals in this case
outside the duty to bargain because they concern the military aspects of
civilian technician employment. /*/
The petition for review is dismissed.
Issued, Washington, D.C., October 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(*) In view of this decision it is unnecessary to address the
Agency's additional arguments concerning the negotiability of these
proposals.
29 FLRA NO. 94
VA Medical Center and Local 1012, AFGE (Barasch, Arbitrator), Case
No. 0-AR-1422, (Decided October 29, 1987)
7122(a)
ARBITRATION AWARDS, EXCEPTIONS
ARBITRATOR WAS ARBITRARY AND CAPRICIOUS
The Authority determined that the Union had failed to establish that
the Arbitrator's award was deficient on any of the grounds set forth in
the Statute, citing precedent for the principle that disagreement with
the Arbitrator's findings of fact and his reasoning and conclusions and
attempting to relitigate the merits of the grievance are not a basis for
review.
Case No. 0-AR-1422
VETERANS ADMINISTRATION MEDICAL CENTER
Activity
LOCAL 1012, AFGE
Union
This matter is before the Authority on an exception to the award of
Arbitrator Stephen Barasch 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. We deny the
exception.
The grievant was charged with 4 hours of absence without leave (AWOL)
for failing to report for her scheduled 4-hour shift on the day in
dispute. A grievance was filed and submitted to arbitration on the
issue of whether the AWOL charge violated the parties' collective
bargining agreement. The Arbitrator denied the grievance. He found
that the grievant had not complied with the requirement that she contact
her immediate supervisor to obtain emergency annual leave. Accordingly,
he ruled that the Union had not established that the Activity improperly
classified the grievant as AWOL.
In its exception the Union contends that the award is deficient
because it sustains the Activity's action of classifying the grievant as
AWOL rather than granting her emergency annual leave, which action was
arbitrary and capricious.
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in
section 7122(a) of the Statute: specifically, 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. See, for example, American Federation of
Government Employees, Local 2206 and Department of Health and Human
Services, Social Security Administration, Southeastern Program Service
Center, 6 FLRA 568 (1981) (exceptions disputing an award sustaining an
AWOL charge were denied as constituting nothing more than disagreement
with the arbitrator's findings of fact and his reasoning and conclusions
and an attempt to relitigate the merits of the grievance before the
Authority).
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., October 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 93
DOD Dependent Schools, Pacific Region and Overseas Education
Association, Case No. 0-AR-593, (Decided October 29, 1987)
7116(d)
7123(a)(1)
ARBITRATION AWARDS, EXCEPTIONS
FSLMR STATUTE, AWARD CONTRARY TO
7116(d)
AWARD FAILS TO DRAW ITS ESSENCE FROM AGREEMENT
ARBITRABILITY
This case was before the Authority on remand from the U.S. Court of
Appeals for the District of Columbia. The Authority accepted as the law
of the case the court's decision that the grievance leading to the
arbitration award was not barred by section 7116(d). The earlier
Authority decision finding the award contrary to section 7116(d) was
therefore vacated and the exceptions on that ground was denied. The
exceptions also alleged that the grievance at issue was excluded from
the negotiated grievance procedure and, accordingly, the finding by the
Arbitrator that the grievance arbitrable fails to draw its essence for
the agreement and is based on a nonfact. As to these contentions, the
Authority found that the mere assertions fail to establish that the
arbitrability determination by the Arbitrator was deficient. The
Authority also noted that both the Arbitrator and U.S. Court of Appeals
recognized that the grievant was never released from his competitive
level by separation or reassignment requiring displacement. The
Authority denied all exceptions.
Case No. 0-AR-593
17 FLRA 1001 (1985)
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, PACIFIC REGION
Activity
OVERSEAS EDUCATION ASSOCIATION
Union
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit in
Overseas Education Association v. FLRA, No. 85-1420 (D.C. Cir. July 24,
1987) (OEA). This case concerns whether the Agency's exceptions to the
award of Arbitrator Ted T. Tsukiyama establish that the award is
deficient on any of the grounds set forth in section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute). On
remand, we conclude that the Agency has failed to establish that the
award is deficient. Consequently, we vacate the Authority's prior
decision setting aside the award and we deny the exceptions.
This case arose when there was a reduction in the number of
industrial arts teaching positions at a high school of the Activity. As
a result, the grievant, an industrial arts teacher and area director of
the Union, was first notified that his teaching position would be
eliminated. Subsequently, he received formal advance notice of
separation by reduction-in-force, and ultimately he was transferred to a
teaching position at another high school of the Agency. After the
grievant was first notified that his position would be eliminated, the
Union filed an unfair labor practice charge alleging violations of
section 7116(a)(1) and (2) of the Statute, which charge was ultimately
withdrawn voluntarily. Subsequent to the charge being filed and after
he received the formal advance notice of separation, the grievant filed
a grievance complaining about his "improper dismissal from the Federal
Service."
The Arbitrator first rejected the contention that the grievance was
barred by the earlier-filed unfair labor practice charge. On the
merits, the Arbitrator sustained the grievance. He concluded that the
disputed actions were motivated by consideration of the grievant's union
activities in violation of the parties' collective bargaining agreement.
As his award, he ordered that the grievant be reinstated to his former
teaching position with backpay and otherwise be "made whole."
As one of its exceptions, the Agency contended that the award was
contrary to section 7116(d) of the Statute. The Authority concluded
that the grievance was barred by the unfair labor practice charge.
Consequently, without considering the other exceptions, the Authority
decided that the award was deficient as contrary to section 7116(d) and
set the award aside. 17 FLRA 1001.
In OEA the court first determined that it had jurisdiction under
section 7123(a)(1) to review the Authority's decision. On review, the
court held that the Authority erred in finding the award contrary to
section 7116(d) and remanded the case for further proceedings. Slip.
op. at 23. In view of the court's decision and remand, we will
reexamine the Agency's exceptions to the award.
In these exceptions the Agency has contended that the award is
deficient because the grievance was barred by section 7116(d) and
because the Arbitrator failed to consider section 7116(d) in finding the
grievance to be arbitrable.
We accept as the law of this case the court's decision that the
grievance is not barred by section 7116(d). Accordingly, we will vacate
the Authority's decision finding the award contrary to section 7116(d)
and we will deny these exceptions.
In this exception the Agency maintains that grievances concerning
reductions-in-force are excluded from coverage by the negotiated
grievance procedure. Consequently, the Agency contends that by finding
the grievance to be arbitrable and resolving the grievance on the
merits, the award fails to draw its essence from the collective
bargining agreement and is based on a nonfact.
We find that the mere assertion by the Agency that in its view,
grievances over reductions-in-force are excluded from the negotiated
grievance procedure fails to establish that the award of the Arbitrator
finding the grievance to be arbitrable is deficient as alleged. See,
for example, Immigration and Naturalization Service, U.S. Department of
Justice and American Federation of Government Employees, Local 40, 18
FLRA 412 (1985) (exceptions contending that the arbitrator's
determination that the grievance was approprate for resolution under the
collective bargaining agreement was based on a nonfact and failed to
draw its essence from the agreement were denied as challenging the
arbitrator's interpretation of the agreement). We further find that the
award is not deficient as alleged because as resolved by the Arbitrator,
the grievance did not concern a reduction-in-force. As specifically
recognized by both the Arbitrator and the U.S. Court of Appeals for the
D.C. Circuit, the grievant was never released form his competitive level
by separation or reassignment requiring displacement. Accordingly, we
conclude that this exception provides no basis for finding the award
deficient.
The Authority's original decision, 17 FLRA 1001 (1985), is vacated,
and the exceptions to the Arbitrator's award are denied.
Issued, Washington, D.C., October 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 92
Dep't of the Air Force, HQs 2849th Air Base Group (AFLC), Hill Air
Force Base, Utah and AFGE, Local 2510 (Cohen, Arbitrator), Case No.
0-AR-1434, (Decided October 29, 1987)
7122(b)
ARBITRATION AWARDS, PROCEDURE
TIMELINESS OF EXCEPTIONS
FILING LOCATION WRONG
REGIONAL OFFICE, FLRA
The exceptions to the Arbitrator's award were dismissed as untimely.
While the exceptions were mailed timely, they were mailed to an FLRA
Regional Office, which forwarded them to the Authority at its national
office. It is well established that exceptions to an Arbitrator's award
cannot be filed at a regional office, but must be filed with the
Authority at its national office in Washington, D.C.
Case No. 0-AR-1434
DEPARTMENT OF THE AIR FORCE HQS 2849th AIR BASE GROUP (AFLC) HILL AIR
FORCE BASE, UTAH
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2510
Union
This case is before the Authority on exceptions to the award of
Arbitrator Gerald Cohen filed by the Union prusuant to section 7122(a)
of the Federal Service Labor-Management Relations Statute and section
2425.1 of the Authority's Rules and Regulations. The Activity filed an
opposition to the Union's exceptions. For the reason stated below, it
has been determined that the exceptions must be dismissed as untimely
filed.
The Arbitrator's award and a statement of fees and expenses are dated
August 12, 1987, and, in the absence of evidence to the contrary, appear
to have been served on the parties by mail on the same day.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1 of the Authority's Rules and Regulations, as amended, /2/ section
2429.21 of the Rules and Regulations, as amended, /3/ and section
2429.22 of the Rules, any exceptions to the Arbitrator's award had to be
either mailed to the national office of the Authority in Washington,
D.C., and postmarked by the U.S. Postal Service no later than September
15, 1987, or if filed in person, received at the Authority's national
office no later than the close of business on the same date.
However, the record indicates that the Union mailed its exceptions
dated September 11, 1987 (in an envelope postmarked September 13) to
Region VII of the Federal Labor Relations Authority in Denver, Colorado.
/4/ The envelope containing the Union's exceptions was addressed to
Region VII's former address and stamped by the U.S. Postal Service with,
"Returned to Sender -- Forwarding Order Expired." On September 25 the
Region received the exceptions in an envelope with the Region's correct
address (the postmark on the envelope is illegible). The Regional
Director by letter dated September 25 forwarded the exceptions to the
Authority's national office in Washington, D.C.
Because the Union's exceptions were not filed with the Authority at
its national office by September 15, 1987, they are untimely.
Accordingly, as the Union's exceptions were untimely filed, they are
hereby dismissed.
For the Authority.
Issued, Washington, D.C., October 29, 1987.
/s/ Harold D. Kessler
Director of Case Management
(1) Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98
Stat. 47, 48 (1984)) to provide that the 30-day period for filing
exceptions to an arbitrator's award begins on the date the award is
served on the filing party.
(2) 49 Fed. Reg. 22623 (1984). The amendments to section 2425.1 of
the Authority's Rules and Regulations are applicable to exceptions
pending or filed with the Authority on or after March 2, 1984.
(3) 51 Fed. Reg. 45751 (1986). The amendments to section 2429.1 of
the Authority's Rules and Regulations are applicable to exceptions
pending or filed with the Authority on or after December 31, 1986.
(4) It is well established that exceptions to an Arbitrator's award
cannot be filed at a Regional Office, but must be filed with the
Authority at its national office in Washington, D.C. See The Panama
Canal Commission and Maritime Metal Trades Councel, AFL-CIO, 21 FLRA No.
38, n. 5 (1986).
29 FLRA NO. 91
Naval Supply Center, Charleston, S.C. and AFGE, Local 2510 (Terrill,
Arbitrator), Case No. 0-AR-1430, (Decided October 29, 1987)
7122(a)
ARBITRATION AWARDS, PROCEDURE
TIMELINESS OF EXCEPTIONS
FILING LOCATION WRONG
REGIONAL OFFICE, FLRA
The exceptions to the Arbitrator's award, which had been mailed to an
Quthority Regional Office, were dismissed as untimely filed. It is well
established that exceptions to an Arbitrator's award cannot be filed at
a Regional Office, but must be filed with the Authority at its national
office in Washington, D.C. (In this case the mailing date would have
made the exceptions untimely even if properly mailed to the Authority's
national office.)
Case No. 0-AR-1430
NAVAL SUPPLY CENTER CHARLESTON, SOUTH CAROLINA
Activity
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2510
Union
This case is before the Authority on exceptions to the award of
Arbitrator T.E. Terrill filed by the Union pursuant to section 7122(a)
of the Federal Service Labor-Management Relations Statute and section
2425.1 of the Authority's Rules and Regulations. For the reason stated
below, it has been determined that the exceptions must be dismissed as
untimely filed.
The Arbitrator's award and transmittal letter are dated July 7, 1987,
and, in the absence of evidence to the contrary, appear to have been
served on the parties by mail on the same day.
Under section 7122(b) of the Statute, as amended, /1/ and section
2425.1 of the Authority's Rules and Regulations, as amended, /2/ section
2429.21 of the Rules and Regulations, as amended, /3/ and section
2429.22 of the Rules, any exceptions to the Arbitrator's award had to be
either mailed to the national office of the Authority in Washington,
D.C., and postmarked by the U.S. Postal Service no later than August 10,
1987, or if filed in person, received at the Authority's national office
no later than the close of business on the same date.
However, the record indicates that the Union mailed its exceptions
dated August 26, 1987 (in an envelope postmarked August 27) to Region IV
of the Federal Labor Relations Authority in Alanta, Georgia. /4/ On
September 10, 1987, Region IV forwarded the Union's exceptions to the
Authority's national office.
Inasmuch as the Union's exceptions were not mailed until August 27,
1987, they are clearly untimely. Accordingly, as the Union's exceptions
were untimely filed, they are hereby dismissed.
For the Authority.
Issued, Washington, D.C., October 29, 1987.
/s/ Harold D. Kessler
Director of Case Management
(1) Section 7122(b) of the Statute was amended by the Civil Service
Miscellaneous Amendments Act of 1983 (Pub. L. No. 98-224, Section 4, 98
State. 47, 48 (1984)) to provide that the 30-day period for filing
exceptions to an arbitrator's award begins on the date the award is
served on the filing party.
(2) 49 Fed. Reg. 22623 (1984). The amendments to section 2425.1 of
the Authority's Rules and Regulations are applicable to exceptions
pending or filed with the Authority on or after March 2, 1984.
(3) 51 Fed. Reg. 45751 (1986). The amendments to section 2429.21 of
the Authority's Rules and Regulations are applicable to exceptions
pending or filed with the Authority on or after December 31, 1986.
(4) It is well established that exceptions to an Arbitrator's award
cannot be filed at a Regional Office, but must be filed with the
Authority at its national office in Washington, D.C. See The Panama
Canal Commission and Maritime Metal Trades Council, AFL-CIO, 21 FLRA No.
38, n. 5 (1986).
29 FLRA NO. 90
AFGE, Local 2024 and Dep't of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, Case No. 0-NG-1362, (Decided October 28,
1987)
7105(a)(2)(E)
7106(a)
COMMITTEES, UNION PARTICIPATION
INCENTIVE AWARDS COMMITTEE
PERFORMANCE APPRAISAL SYSTEM
AWARDS / REWARDS
COMMITTEE OR SECTION PROCESS
UNION PARTICIPATION
The proposal at issue provided for the Union to appoint one
representative to the Incentive Awards Performance Rating Board, to the
Restaurant Board, to the Equal Employment Opportunity Committee and to
the Light Conservation Committee. The Agency contested only that
portion of the proposal that related to the Incentive Awards Performance
Rating Board. Relying on established precedent, the Authority concluded
that the proposal was within the duty to bargain, rejecting the Agency's
contention that it interfered with management right's under section
7106(a).
Case No. 0-NG-1362
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 2024
Union
DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD PORTSMOUTH, NEW
HAMPSHIRE
Agency
The petition for review in this case is before the Authority because
of 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. /1/ We find this proposal
to be within the duty to bargain.
Section 1. It is agreed that the Union may appoint one
representative to the following boards and committees:
Incentive Awards Performance Rating Board
Restaurant Board
Equal Employment Opportunity Committee
Light Conservation Committee
The Union observer on the rating panel is not intended to
participate in any management deliberations. The observer's role
during the proceedings is for contract enforcement purposes.
The Agency claims that to the extent that the proposal pertains to
the Incentive Awards Performance Rating Board, it violates management's
right to direct employees and assign work under section 7106(a)(2)(A)
and (B) of the Statute. The Agency argues that the Incentive Award
Committee is used among other things, to review certain recommended
performance based incentive awards and make recommendations to the
Commanding Officer concerning their adoption. Thus, this committee is
an internal deliberative mechanism used by the agency to exercise its
management's right. The Agency does not contest the negotiability of
the other portions of the proposal.
The Union contends that this proposal does not infringe upon
management's right, and that, even if it did, it would be an appropriate
arrangement under the criteria established in National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986).
We find this proposal to be within the duty to bargain.
In American Federation of Government Employees, AFL-CIO, Local 1815
and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA No. 152 (1987),
we held that Provision 9 which required the agency to select one
employee to serve as the union representative on the incentive awards
committee to be within the duty to bargain. We rejected the agency's
contention that union membership on the incentive awards committee
interfered with its rights under section 7106(a) of the Statute. Slip
op. at 10.
The proposal in this case is substantially the same as Provision 9 in
Army Aviation Center, Fort Rucker. Accordingly, for the reasons set
forth in that decision, we find Proposal 1 to be within the duty to
bargain. See also National Federation of Federal Employees, Local 797
and Department of the Navy, 29 FLRA No. 36 (Provision 2). In view of
our conclusion that this proposal does not violate management's rights,
we find it is unnecessary to address the Union's argument concerning
"appropriate arrangements."
The Agency shall upon request, or as otherwise agreed by the parties
bargain on Proposal 1. /2/
Issued, Washington, D.C., October 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(1) The Agency withdrew its allegation of nonnegotiability concerning
Proposal 2. Thus, that proposal will not be further addressed.
(2) In finding Proposal 1 to be within the duty to bargain, we
express no opinion as to its merits.
29 FLRA NO. 89
HHS, SSA and SSA Field Operations, Region II and AFGE Local 2369,
Case No. 2-CA-60016, (Decided October 28, 1987)
7114(a)(2)(A)
7116(a)(1) and (8)
7118
AGENCY ULP (ALLEGED) 7116(a)(8)
7114(a)(2)(A)
FORMAL DISCUSSIONS
CRITERIA FOR DETERMINING FORMAL DISCUSSIONS
FORMALITY
INDICIA OF FORMALITY
EXISTENCE OF A FORMAL AGENDA
MANNER IN WHICH THE MEETING IS CALLED
MANNER IN WHICH THE MEETING IS CONDUCTED
NOT FORMAL
TRAINING
ORIENTATION OF NEW EMPLOYEES
The Unfair Labor Practice case concerned an allegation that the
Agency had violated the Statute by failing to afford the bargaining
representative and opportunity to be represented at a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute. At issue
was an orientation session at which matters such as hours of work,
leave, holidays, insurance, and a variety of other benefits and
personnel topics were discussed. The Authority viewed the sole issue as
whether the meeting was "formal" within the meaning of the Statute.
Noting such facts as that the meeting was held between a new employee
and her supervisor with no other management representatives in
attendance, that it took place at the supervisor's desk, lasting about
20 minutes and followed by a tour of the office and introductions to
other employees, that there was no advance notice of the meeting, notes
taken or preparation made, and that the documents given the employee was
customarily given to new employees, the Authority found, "Thus, there
were elements of spontaneity, one-on-one discussion, unstructuted
informality, and employee-initiated aspects of the meeting." The
Authority concluded that they do not view the type of exchange at issue
as being a formal discussion. Accordingly the Union was not entitled to
be represented at the meeting and the Agency's conduct of the meeting
did not violate the Statute.
Case No. 2-CA-60016
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS,
REGION II
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, LOCAL 2369
Charging Party
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Administrative Law Judge's
Decision. The Respondent filed an opposition to the exceptions. The
complaint alleged that the Respondent violated section 7116(a)(1) and
(8) of the Federal Service Labor-Management Relations Statute (the
Statute) by failing to afford the Charging Party (the Union) an
opportunity to be represented at a formal discussion within the meaning
of section 7114(a)(2)(A) of the Statute. For the reasons which follow,
we conclude that the meeting was not a formal discussion and that the
Respondent did not violate the Statute.
II. Background
On September 9, 1985, a new employee reported for duty at the
Respondent's Camden, New Jersey District Office. Prior to reposrting
for duty at the Camden office, the employee completed 3 months of
training at the Hackensack office, along with other employees who were
going to be assigned to various district offices. During the training
in Hackensack, the employees attended an orientation session at which
matters such as hours of work, leave, holidays, insurance, and a variety
of other benefits and personnel topics were discussed.
On reporting for duty in Camden, the employee was met by the
Assistant District Manager. She was then taken to the desk of the
"Operations Supervisor," who was identified as the employee's
supervisor. The supervisor and the employee met for about 20 minutes.
During this time, the employee was given a copy of a document containing
office rules and regulations. The supervisor and the employee discussed
such matters as office hours, leave, office attire, security,
housekeeping, smoking, paycheck distribution, and the time at which the
employee would be taking lunch and breaks. Following the discussion at
the supervisor's desk, the supervisor gave the employee a tour of the
office and introduced her to the other employees. The Union was no
given an opportunity to be represented at the September 9 meeting.
III. Administrative Law Judge's Decision
The Judge found that while the September 9 meeting between the
employee and the Operations Supervisor involved a discussion and
concerned working conditions, the meeting was not "formal" and,
therefore, it did not constitute a formal discussion under section
7114(a)(2)(A). The Judge therefore concluded that the Union was not
entitled to be represented at the meeting and recommended dismissal of
the complaint.
In finding that the meeting was not formal, the Judge noted that no
other management official besides the Operations Supervisor was present,
no advance notice was given to the employee of the meeting, no advance
preparation was made for the meeting, no notes were taken during the
meeting, and the document containing office rules and regulations given
to the employee was customarily given to new employees. The Judge also
noted that the questions asked by the employee were personal in nature
and, for the most part, were applicable to the employee's individual
concerns.
IV. Positions of the Parities
In its exceptions, the General Counsel contends that the Judge erred
in failing to find that the September 9 meeting constituted a formal
discussion at which the Union should have been given an opportunity to
be represented. In support of its contention, the General Counsel
argues that the Judge failed to consider Authority precedent regarding
orientation sessions and failed to consider the unique characteristics
of such sessions. More particularly, the General Counsel argues that
like the situations in Department of Health and Human Services, Social
Security Administration, 16 FLRA 232 (1984) and Department of Health,
Education and Welfare, Region IV, Atlanta, Georgia and Department of
Health and Human Services, Region IV, Atlanta, Georgia, 5 FLRA 458
(1981), the orientation session here was formal in nature. In support
of its arguments, the General Counsel notes that (1) the meeting was
initiated by the Assistant District Manager; (2) the employee's
attendance was essentially mandatory; (3) no notice could be given to
the employee since the meeting occurred on her first day of work at the
Camden office; (4) while there was no specific agenda for the meeting,
the discussion followed the document handed to the employee; (5)
questions were asked and answered; (6) the meeting appeared to be part
of an established routine for the first day of work for new employees;
and (7) the meeting lasted for 20 minutes, an appreciable period of
time.
In its opposition to the General Counsel's exceptions, the Respondent
argues that the Judge considered Authority precedent since both parties
had argued precedent in their briefs to the Judge. The Respondent
further argues that the Judge correctly concluded, based on the facts
presented, that the September 9 orientation session did not constitute a
formal discussion.
V. Analysis and Conclusions
We consistently have held that in determining whether a union's right
to representation attaches under section 7114(a)(2)(A), all the elements
of that section must be present: (1) there must be a discussion; (2)
which is formal; (3) between one or more representatives of the agency
and one or more unit employees or their representatives; (4) concerning
any grievance or personnel policy or practices or other general
condition of employment. See, for example, National Archives, 20 FLRA
129 (1985); Bureau of Field Operations, Social Security Administration,
San Francisco, California, 20 FLRA 80 (1985); and Social Security
Administration, Baltimore, Maryland 18 FLRA 249 (1985). Additionally,
in U.S. Department of Justice, Bureau of Prisons, Federal Correctional
Institution (Ray Brook, New York), 29 FLRA No. 52 (1987), we stated that
in applying that analytical framework, we will also be guided by the
intent and purpose of section 7114(a)(2)(A) -- to provide the union with
an opportunity to safeguard its interests and the interests of
bargaining unit employees -- viewed in the context of the union's full
range of responsibilities under the Statute.
The sole questions presented here is whether the September 9 meeting
was "formal." Based on an analysis of the facts presented, we agree with
the Judge that the meeting was not a formal discussion within the
meaning of section 7114(a)(2)(A). As noted by the Judge, the meeting
was held between a new employee and her supervisor with no other
management representatives in attendance. The meeting took place at the
supervisor's desk, lasted about 20 minutes and was followed by a tour of
the office and introductions to the other employees. There was no
advance notice of the meeting, no notes were taken and no preparation
was made for the meeting. Finally, the document given to the employee
was customarily given to new employees.
In our view, the September 9 meeting here is unlike the situations
presented in the two cases relied upon by the General Counsel. In
Secial Security Administration, the Authority adopted the Judge's
finding that an orientation session with about six new employees was a
formal discussion. In finding that the session satisfied the indicia of
formality, the Judge noted that: (1) the orientation took place in a
conference room; (2) it was conducted by a second-leval supervisor with
other management officials present; (3) it lasted 1-1/2 hours; (4) it
was prearranged and not spontaneous; (5) attendance appeared to be
mandatory; (6) attendance at the meeting was noted; (7) there was a
definite plan of items to be discussed; and (8) the employees were
given an orientation package that had been prepared in advance. In
Department of Health and Human Services, Region IV, the sessions were
held at a regularly scheduled time each month; generally included 15-18
employees; were conducted by the agency's personnel specialists;
followed an established agenda and covered a wide range of personnel and
employement matters.
Here, the meeting took place in connection with the employee's
introduction to her supervisor. The supervisor testified that he was
unaware that he would be meeting with the employee until she was
escorted to his desk by the Assistant District Manager (Transcript at
51). Much of the discussion that followed pertained to personnel
matters that were either discussed previously at the orientation session
held at the Hackensack office or involved the employee's particular
concerns. Thus, there were elements of spontaneity, one-on-one
discussion, unstructured informality, and employee-initiated aspects of
the meeting which were not present in the cases cited by the General
Counsel.
We have recognized that not all discussions between representatives
of agency management and unit employees are formal discussions within
the meaning of section 7114(a)(2)(A). See, for example, Office of
Program Operations, Field Operations, Social Security Administration,
San Francisco Region, 9 FLRA 48 (1982). We do not view the type of
exchange that occurred on September 9 as being a formal discussion.
Rather, it was an informal meeting between a new employee and her
supervisor. Accordingly, the Union was not entitled to be represented
at the meeting and the Respondent's conduct did not violate the Statute,
as alleged.
The complaint in this case is dusmissed.
Issued, Washington, D.C., October 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No.: 2-CA-60016
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY ADMINISTRATION, FIELD OPERATIONS,
REGION II
Respondent
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2369
Charging Party
Patricia A. Randle, Esq.
For the Respondent
Susan M. Roche, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on May 30, 1986,
by the Regional Director for the Federal Labor Relations Authority,
Region II, a hearing was held before the undersigned on September 9,
1986 at Philadelphia, Pennsylvania.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based
on a charge filed by American Federation of Government Employees,
AFL-CIO, Local 2369 (herein called the Union) against Department of
Health and Human Services, Social Security Administration and Social
Security Administration, Field Operations, Region II (herein
collectively called Respondent).
The Complaint alleged, in substance, that on or about September 9,
1985, Respondent, by its agent, Operations Supervisor Gordon Swezey,
held an orientation session with a unit employee and discussed personnel
policies, practices and other conditions of employment. Further, that
such session was a formal discussion which was held without affording
the Union an opportunity to be represented as required under Section
7114(a)(2)(A) of the Statute -- all in violation of Section 7116(a)(1)
of the Statute.
Respondent's Answer, dated June 20, 1986, admits that Respondent held
an orientation session with a new unit employee and discussed personnel
policies, practices and other conditions of employment. It denied,
however, that such session was a formal discussion within the meaning of
Section 7114(a)(2)(A) of the Statute, as well as the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed 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:
1. At all times material herein the American Federation of
Government Employees, AFL-CIO has been, and still is, the certified
exclusive representative of a consolidated nationwide unit of certain
employees of Respondent, including all employees who are employed in the
District and Branch Offices of the Social Security Administration in New
York and New Jersey with specified exclusions.
2. At all times material herein, the American Federation of
Government Employees, AFL-CIO has delagated to the National Council of
Social Security Administration Field Operations Locals (Council)
authority to act as its representative for the purpose of collective
bargaining for Respondent's unit employees, including employees at the
Camden, New Jersey District Office of Respondent, and this delegation
has been recognized by Respondent.
3. At all times material herein, the American Federation of
Government Employees, AFL-CIO, Local 2369 (the Union herein) has acted
as agent for the Council for the purposes of collective bargaining for
Respondent's employees at the Camden, New Jersey District Office, and
the delegation has been recongized by Respondent.
4. In June, 1985 Nan McFall was hired by Respondent as a Claims
Representative to be employed at the Camden, New Jersey District Office.
5. Prior to commencing employment at Camden, McFall reported to
Hackensack, New Jersey where a training session was held for about 11
employees who would thereafter be assigned to various District Offices
of Respondent. An orientation session was held for these employees
which lasted about three months. Personnel policies, practices and
general conditions of employment were discussed thereat. The subjects
of discussion included such topics as hours of work, lateness policy,
earning and using leave, salary, payroll deductions, paid holidays,
employee benefits, counseling services, employee conduct,
confidentiality, probationary period, audit and appraisal system,
suggestions/awards, employee union, eating facitities, and
transportation/parking facilities. (Respondent's Exhibit 1)
6. On September 9, 1985 McFall reported for duty at the Camden
District Office. The Camden office is headed by Sol Steinberg who is
the District Manager. Next in line thereat is Sid Bader, the Assistant
Manager. A unit of 12 to 16 professional and clerical employees is
supervised by Gordon Swezey, who is classified as "Operations
Supervisor". /1/ McFall was met at the office by Bader, who then
accompanied her to Swezey's desk where she was introduced to the latter
as her supervisor. The said unit employees and Swezey work in an "open
office" set up. This supervisor has no separate office, and no
partitions separate him from the supervised employees.
7. After McFall and Swezey were introduced, and while the former was
seated at the supervisor's desk, Swezey went over the items contained in
a document entitled "Statement of Office Rules and Regulations" (G.C.
Exhibit No. 2). This is a six page document which sets forth various
personnel policies, procedures, and conditions of employment. Although
he did not read from the rules and regulations, Swezey went over and
discussed various provisions thereof with McFall while she was seated at
her supervisor's desk. A copy of the document, which Swezey testified
he gave to each new employee, was given by him to McFall.
8. In explaining the employment conditions, Swezey talked about the
office hours, use of time and lateness. He told McFall that if she
anticipates being late a call should be made to her supervisor and
advise him accordingly. Swezey assigned her a time for lunch as well as
breaks. He explained how annual leave is accumulated, and McFall asked
questions in this regard. She also asked if the telephone could be used
to call outside since her son was ill, and Swezey told her it was
alright if not done habitually. The supervisor mentioned that overtime
was worked occasionally. He also stated that McFall was expected to
dress like a professional, which meant no tight jeans or being
underdressed. Swezey discussed smoking, the use of office phones, and
housekeeping (maintaining desks neatly and properly arranged), security
(to use elevators rather than stairways since there were no guards on
hand), salary checks (if McFall is off for a week or on vacation, she
could arrange to have them mailed to her home or pick them up when she
returns to work). /2/
9. No other persons were present during the discussion between
McFall and Supervisor Swezey. Record facts show a dispute as to the
length of the sessions since McFall testified it lasted between 20-30
minutes whereas Swezey stated it took about 10 minutes. Based on the
amount of topics discussed, as well as the nature of the discussion, I
find that the meeting lasted for approximately 20 minutes.
10. The meeting between McFall and Swezey was not prearranged, it
was not called by the supervisor, nor was any notice given to the
employee by the supervisor that they would meet to discuss the
aforementioned items. No notifications was given to the Union of the
meeting. Other than the "Statement," there was no prepared agenda for
the discussion. Swezey took no notes during the session.
11. After the discussion Swezey introduced McFall to her co-workers
and walked her around the office. He pointed out some of the equipment,
and thereafter showed her the desk which she would occupy. /3/
The single issue for determination herein is whether the session or
meeting between employee McFall and Supervisor Swezey on September 9,
1985 rose to the level of a "formal" discussion within the meaning of
Section 7114(a)(2)(A) /4/ of the Statute. An affirmative resolution in
that regard would be violative of Section 7116(a)(1) and (8) of the
Statute since the Union was not afforded an opportunity to be present
thereat.
Numerous decisions have been rendered by the Authority wherein it was
determined whether meetings or encounters between management and
employees were, in fact, formal discussions. While some degree of
inconsistency in making that determination has pervaded those decisions,
certain guidelines have been established by the Authority. At the
outset, the Authority has reiterated that in order for a union's right
to attach, all elements set forth under Section 7114(a)(2)(A) must be
found to exist: (1) a discussion; (2) which is formal; (3) between
one or more representatives of the agency and one or more employees in
the unit or their representatives; (4) concerning any grievance or any
personnel policy or practices or other general condition of employment.
National Archives, 20 FLRA 129; General Services Administration, Region
8, Denver, Colorado, 19 FLRA 20.
While the Authority will examine the totality of the circumstances
surrounding a meeting in order to determine if it was a formal
discussion under the Statute, it has enumerated some of the factors to
be considered in making that determination. These are as follows:
(1) whether any other management representatives attended the
meeting:
(2) where the meeting took place (i.e., in the supervisor's
office or elsewhere);
(3) how long the meeting lasted;
(4) how the meeting was called (i.e., with formal advance
written notice or more spontaneously and informally);
(5) whether a formal agenda was established for the meeting;
(6) whether employee attendance was mandatory; or
(7) the manner in which the meeting was conducted (i.e.,
whether the employee's and comments were noted or transcribed).
See Department of Health and Human Services, Social Security
Administration, Bureau of Field Operations, San Francisco Region, 10
FLRA 120; 10 FLRA 115 (2 cases).
Turning to the case at hand, it seems quite clear that Supervisor
Swezey and employee McFall engaged in a discussion on September 9.
Further, that the discussion was in respect to certain working
conditions prevailing at the Camden District Office. Nevertheless,
based on the various factors emphasized by the Authority in past
decisions, coupled with the circumstances surrounding the meeting
between these two individuals, I am persuaded that the discussion was
not "formal" so as to require the presence of the Union herein.
Record facts show that, as to the employee involved herein, the
meeting with her on September 9 was held with her first-level
supervisor. Although entitled "Operations Supervisor", Swezey was
McFall's immediate supervisor. Moreover, no other management official
was present during the discussion. The meeting with this one employee
by Supervisor Swezey, upon her arrival at the Camden District, wherein
he introduced her to the surroundings and explained the rules and
working conditions, took on the character of an informal orientation
session. It was held a Swezey's desk located near the new employee's
seat assignment; no advance notice was given nor preparation made for
the discussion; no notes were taken by either person during the
discussion; and the supervisor customarily gave a copy of the same
Office Rules and Regulations to each new employee.
Cases decided by the Authority in respect to the issue herein have
stressed some of the factors which the undersigned has alluded to in
concluding the meeting with Supervisor Swezey was not formal in nature.
Thus, in General Services Administration, Region 8, Denver, Colorado, 19
FLRA 20, the Authority determined that a meeting between a first-level
supervisor and two employees, with no other management representative
present, was not a formal discussion. Although working conditions were
discussed, there was no formal advance written notice, no notes were
written or transcribed. See also Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland, 17 FLRA
594 where the first-level supervisor met with four employees to discuss
changes in working conditions. The Authority in the cited case
concluded the discussion was not formal. It emphasized the fact that
the supervisor was first-leval. The meeting occurred at the employees'
work place, was spontaneously called, lasted 10 minutes, and had no
formal agenda. /5/
Based on the foregoing, I conclude that the introductory session and
meeting between Supervisor Swezey and new employee McFall was casual in
nature. While the written topics which the supervisor covered concerned
working conditions, the meeting was designed to present the employee
with the rules and regulations governing her employment. Questions
asked of McFall, and responded to by Swezey, were personal and, for the
most part, applicable to her individual concerns. The site and nature
of the discussion, held under the circumstances and in the context as
heretofore described, convinces me that it was not a formal one within
the meaning of Section 7114(a)(2)(A) of the Statute. Accordingly, I
conclude that Respondent has not violated Section 7116(a)(1) and (8) of
the Statute. Thus, it is recommended that the Authority issue the
following:
It is hereby ordered that the Complaint in Case No. 2-CA-60016 be,
and the same hereby is, dismissed.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: April 27, 1987
Washington, D.C.
(1) Since the record reflects that Swezey is the immediate supervisor
of McFall and the other unit employees, it appears that his supervision
is first-level.
(2) While Swezey denies discussing all 15 items in the "Statement"
(G.C. Exhibit 2), I find that, based on the record facts as credited,
that the aforesaid subjects were covered by him.
(3) The meeting or discussion, which took place at Swezey's desk, was
at a place about 13 to 14 feet from the desk to which McFall was later
assigned by the supervisor.
(4) Section 7114(a)(2)(A) provides as follows:
"Section 7114. Representation rights and duties
"(a)(2) An exclusive representative of an appropriate unit in
an agency shall be given the opportunity to be represented at --
(A) any formal discussion between one or more employees in the
unit or their representatives concerning any grievance or any
personnel policy or practices or other general condition of
employment(.)
(5) Based on similar circumstances, the Authority reached the samw
conclusion in Harry S. Truman Memorial Veterans Hospital, Columbia,
Missouri, 16 FLRA 1049, and in Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland and Chicago,
Illinois Region, 15 FLRA 525 (involving a discussion by an Operations
Supervisor with six unit employees.
29 FLRA NO. 88
HHS and HHS Region II and NTEU chapter 218, Case No. 2-CA-70092,
(Decided October 28, 1987)
7114(b)(4)
7116(a)(1), (5) and (8)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
AGENCY ULP (ALLEGED) 7116(a)(8)
7114(b)(4)
INFORMATION, TYPES OF INFORMATION REQUESTED
NAMES AND ADDRESSES OF EMPLOYEES
In this Unfair Labor Practice case the Authority ruled that the
Agency had violated the Statute by refusing to furnish to the exclusive
bargaining representative the names and home addresses of bargaining
unit employees.
Case No. 2-CA-70092
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION II
Respondents
NATIONAL TREASURY EMPLOYEES UNION CHAPTER 218
Charging Party
The Administrative Law Judge issued the attached decision in this
case, finding that the United States Department of Health and Human
Services, Region II (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 bargining 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 Judge also granted the General
Counsel's motion to withdraw the complaint against the United States
Department of Health and Human Services. The Respondent filed
exceptions to the Judge's Decision.
Pursuant to section 2423.39 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 made at
the hearing and find that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's
Decision, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions, and recommended Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the United States Department of Health and Human Services,
Region II shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, Chapter 218, the exclusive representative of certain of
its employees, the names and home addresses of all employees in the
bargaining unit it represents.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the National Treasury Employees Union, Chapter 218, with
the names and home addresses of all employees in the bargaining unit it
represents.
(b) Post at its facilities where bargaining unit employees
represented by the National Treasury Employees Union, Chapter 218, 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 Regional Director and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and shall be maintained for
60 consecutive days thereafter. Reasonable steps shall be taken to
ensure that such notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply.
Issued, Washington, D.C., October 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse to furnish, upon request of the National Treasury
Employees Union, Chapter 218, the exclusive representative of certain of
our employees, the names and home addresses of all employees in the
bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, Chapter 218
with 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, Region II, Federal Labor Relations Authority, whose address
is: 26 Federal Plaza, Room 3700, New York, New York 10278 and whose
telephone number is: (212) 264-4934.
Case No. 2-CA-70092
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, AND UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION II
Respondents
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 218
Charging Party
Richard M. Friedman, Esq.
For the Respondent
Cecile M. O'Connor, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
Based on a first amended charge filed by National Treasury Employees
Union, Chapter 218 (Charging Party a Union) against United States
Department of Health and Human Services (Respondent DHHS) and United
States Department of Health and Human Services, Region II, (Respondent
Region) a Complaint and Notice of Hearing was issued by the Regional
Director, Region II, Federal Labor Relations Authority against the said
Respondents. The Complaint alleged, in substance, that Respondents
failed and refused to provide the Union herein, upon request, with the
home addresses of the bargaining unit employees represented by the Union
as required by Section 7114(b)(4) of the Federal Service
Labor-Management Relations Statute (Statute) -- all in violation of
Section 7116(a)(1), (5) and (8) of the Statute.
Respondents' Amended Answer admitted that (a) Respondent Region, at
all times material herein, has been a constituent entity within
Respondent DHHS and an agent acting on its behalf; (b) on or about
November 26, 1986, the Union, as the exclusive representative of a unit
of Respondent Region's employees, requested that Respondent Region
furnish it with the home addresses of bargaining unit employees; (c) on
or about December 22, 1986, Respondent Region refused to provide the
requested information, but denies that Respondent DHHS prevented
Respondent Region from fulfilling its obligations under Section
7114(b)(4) of the Statute; (d) the names and home addresses of unit
employees are maintained by Respondent DHHS but denied that such data is
maintained by Respondent Region; (e) the names and home addresses of
unit employees are reasonably available; (f) the requested information
does not constitute guidance, advice, counsel, or training provided for
management officials or supervisors relating to collective bargaining.
/1/
Respondent's Amended Answer denies therein that the information
requested is necessary for full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining. It
also denies the commission of any unfair labor practices.
Under date of April 23, 1987 General Counsel moved for summary
judgment and submitted a brief in support thereof. On the same date the
Regional Director, Region II, issued an order transferring the aforesaid
Motion to the Chief Administration Law Judge pursuant to Section
2423.22(b) of the Authority's Rules and Regulations. /2/ Thereafter, on
May 12, 1987 Respondents filed a cross-motion for summary judgment with
a memorandum supporting its motion and opposing General Counsel's motion
for summary judgment. General Counsel thereafter filed its opposition
to the cross-motion on May 26, 1987, and Respondents then filed a
supplementary memorandum in support of its position on July 30, 1987.
Under date of May 5, 1987, General Counsel filed an Amended Motion
for Summary Judgment. It was moved therein that if the Motion for
summary judgment be granted against Respondent Region, the Complaint be
withdrawn as to Respondent DHHS. The Charging Party joined in said
amended motion and Respondents took no position along with said amended
motion General Counsel filed a memorandum in support thereof.
Respondents make two principal contentions in opposing the General
Counsel's motion for summary judgment and urging that its cross-motion
for such relief be granted. It argues that the purpose for which the
Union desires the data is beyond the scope of Section 7114(b)(4) of the
Statute. Respondents contend that while the Union's entitled to
relevant information, the requirement to furnish such information does
not extend to data relevant to the Union's representational functions or
its need to communicate with unit employees. Secondly, Respondents
insist that the disclosure of the home addresses is prohibited by the
Privacy Act since the purpose of the Union is outside the scope of
routine use, and disclosure would not serve any public interest under
FOIA Exemption 6. Moreover, it is contended there is a real issue of
fact re alternative means of communication with employees so as to
challenge whether the information is "necessary" under 7114(b)(4).
General Counsel takes the position that no genuine issue of fact
exist to preclude summary judgement in its behalf. It submits that the
issues raised by Respondent have been addressed by the Authority in
Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA
788 (1986), petition for review filed sub. nom. U.S. Department of
Agriculture over the Farmers Home Administration Finance Office, St.
Louis, Missouri v. FLRA No. 86-2779 (8th Cir. Dec. 23, 1986). Thus, it
is argued, the failure and refusal by Respondents to provide the names
and addresses of unit employees is a failure to comply with section
7114(b)(4) and is violative of Section 7116(a)(1), (5) and (8) of the
Statute.
The principal arguments advanced by Respondents were considered by
the Authority and disposed of in the Farmers Home case, supra. It was
concluded therein that an exclusive representativ'e responsibilities
extend to all bargaining unit members. Further, that a union must be
able to identify and communicate with those members if it is to
adequately represent them. The Authority not only concluded that the
information was necessary for the union to fulfill its functions, but it
rejected any consideration of alternative means of communication by the
union with the employees. The mere existence of alternative means is
insufficient to justify a refusal to supply the names and addresses, and
the data must be provided irrespective of whether or not other means of
communication are available.
Moreover, in Farmers Home, supra, the Authority concluded that
disclosure of names and home addresses would not constitute a clearly
unwarranted invasion of personal property and does not fall within the
(b)(6) exemption to the FOIA. As a result, its disclosure is required
under FOIA and, under exception (b)(2) to the Privacy Act, its release
is not prohibited by law.
In respect to the contention that the information is maintained by
Respondent DHHS rather than Respondent Region, I conclude that such
factor does not relieve the latter of its obligation to furnish the data
to the Union herein. It is admitted by the Amended Answer that
Respondent Region is a constituent entity within Respondent DHHS and
acts as its agent. Moreover, it does not appear that Respondent Region
would not have been able to obtain the information from Respondent DHHS.
Inasmuch as the Union's request complies with Section 7114(b) of the
Statute, and the express refusal to provide the names and home addresses
of bargining unit employees is patently unjustified, the motion for
summary judgment against Respondent Region /3/ is granted. The cross
motion by Respondent for summary judgment is denied.
Accordingly, the undersigned concludes that Respondent Region has
violated Section 7116(a)(1), (5) and (8) of the Statute, and it is
recommended that the Authority issues the following:
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 Health and Human Services,
Region II, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Treasury
Employees Union, Chapter 218, the exclusive representative of certain of
its employees, the names and home addresses of all employees in the
bargining 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
Federal Service Labor-Management Releations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the National Treasury Employees Union, Chapter 218, the
exclusive representative of certain of its employees, the names and home
addresses of all employees in the bargining unit it represents.
(b) Post at its facilities where bargaining unit employees
represented by National Treasury Employees Union, Chapter 218, are
located, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by a senior official and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, included 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, Region II, 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.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: August 31, 1987
Washington, D.C.
(1) These allegations as admitted in the Amended Answer are
incorporated herein as findings of fact.
(2) The motion was assigned to the undersigned for disposition
pursuant to Section 2423.19(k) and Section 2423.22(b)(3) of the
Regulations.
(3) General Counsel has moved to withdraw the Complaint as to
Respondent DHHS in the event the motion for summary judgment is granted
as to Respondent Region. In view of the foregoing, the undersigned
grants the motion by the General Counsel to withdraw the Complaint
against Respondent DHHS.
WE WILL NOT refuse or fail to furnish, upon request of the National
Treasury Employees Union, Chapter 218, the exclusive representative of
certain of our employees, the names and home addresses of all employees
in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Treasury Employees Union, Chapter 218,
the exclusive representative of certain of our employees the names and
home addresses of all employees in the bargining unit it represents.
. . . (Agency or Activity)
Dated: . . . By: . . . (signature)
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 II,
whose address is: 26 Federal Plaza, Room 3700, New York, New York
10278, and whose telephone number is: (212) 264-4934.
29 FLRA NO. 87
DOD, Dep't of the Navy and Naval Air Rework Facility and
International Brotherhood of Teamsters, Public Employees Division, Local
512, Case no. 4-CA-70178, (Decided October 27, 1987)
7114(b)(4)
7116(a)(1), (5) and (8)
7118
AGENCY ULP (ALLEGED) 7116(a)(5)
INFORMATION
AGENCY ULP (ALLEGED) 7116(a)(8)
7114(b)(4)
INFORMATION, TYPES OF INFORMATION REQUESTED
NAMES AND ADDRESSES OF EMPLOYEES
In this Unfair Labor Practice case the Authority ruled that the
Agency had violated the Statute by refusing to furnish to the exclusive
bargaining representative the names and home addresses of bargaining
unit employees.
Case No. 4-CA-70178
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY AND NAVAL AIR REWORK FACILITY JACKSONVILLE,
FLORIDA
Respondent
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PUBLIC EMPLOYEES DIVISION,
LOCAL 512
Charging Party
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, 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 Respondent filed exceptions
to the Judge's Decision and the General Counsel filed an opposition to
the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (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.
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 Rework Facility, Jacksonville, Florida shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the International
Brotherhood of Teamsters, Public Employees Division, Local 512, the
exclusive representative of certain of its employees, the names and home
addresses of all employees in the bargaining unit it represents.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the International Brotherhood of Teamsters, Public
Employees Division, Local 512, the exclusive representative of a
bargaining unit of certain of its employees, the names and home
addresses of all employees in the bargaining unit it represents.
(b) Post at all facilities where bargaining unit employees
represented by the International Brotherhood of Teamsters, Public
Employees Division, Local 512 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 Rework Facility, Jacksonville, Florida, 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, Region IV, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply herewith.
Issued, Washington, D.C., October 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT refuse or fail to furnish, upon request of the
International Brotherhood of Teamsters, Public Employees Division, Local
512, the exclusive representative of certain of our employees, the names
and home addresses of all employees in the bargaining unit it
represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the International Brotherhood of Teamsters, Public
Employees Division, Local 512, the exclusive representative of a
bargaining unit of certain of our employees, the names and home
addresses of all employees in the bargaining unit it represents.
. . . (Activity)
Dated: . . . By: . . . (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IV, Federal Labor Relations Authority, whose address
is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367 and
whose telephone number is: (404)347-2324.
Case No. 4-CA-70178
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY AND NAVAL AIR REWORK FACILITY
JACKSONVILLE, FLORIDA
Respondent
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PUBLIC EMPLOYEES DIVISION,
LOCAL 512
Charging Party
Richard S. Jones, Esquire
Philip T. Roberts, Esquire
For the General Counsel
Robert W. Hall
For the Charging Party
Robert J. Gilson
For the Respondent
Before: RANDOLPH D. MASON
Administrative Law Judge
This proceeding was initiated 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., and the Final Rules and
Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq.
Pursuant to a charge filed by the International Brotherhood of
Teamsters, Public Employees Division, Local 512 ("Union"), the General
Counsel of the Federal Labor Relations Authority issued a Complaint and
Notice of Hearing on January 30, 1987, alleging that Respondent violated
sections 7114(b)(4) and 7116(a)(1),(5), and (8) of the Statute by
refusing to furnish the Union with the names and home addresses of all
bargaining unit employees at the Activity. In a timely filed Answer,
Respondent denied any violation of the Statute.
The undersigned was selected by the Office of Personnel Management to
conduct this proceeding under the authority of 5 U.S.C. Section 3344 and
5 CFR Section 930.213.
A hearing was held by the undersigned in Jacksonville, Florida, on
April 17, 1987. All parties were given full opportunity to be heard,
adduce evidence, and examine and cross-examine witnesses. After the
hearing, Respondent abandoned certain contentions made at the hearing
and conceded that Respondent's only remaining argument is that
disclosure of the names and addresses was prohibited by the Privacy Act
and that alternative means of communication with the employees were
available to the Union (Order and Memorandum of Telephone Conference
dated May 5, 1987). Respondent and the General Counsel submitted briefs
which have been duly considered. After consideration of the entire
record, including the pleadings, briefs, documentary evidence, and
stipulations of the parties, I make the following findings of fact,
conclusions of law, and recommended order:
At all times material hereto, the International Brotherhood of
Teamsters, Public Employees Division, Local 512 ("Union") has been the
exclusive representative of an appropriate unit of certain employees of
the Naval Air Rework Facility, Jacksonville, Florida ("respondent" or
"activity").
On or about December 10, 1986, and subsequently by letters dated
December 11, 1986, and January 20, 1987, the Union made requests to
Respondent for the names and home addresses of all employees in the
bargaining unit. This information is reasonably available and normally
maintained by Respondent in the regular course of business (Tr. 5-8;
Stip. May 5, 1987). During December 1986, and by letter dated February
3, 1987, Respondent denied the Union's requests (Tr. 10).
The primary issue for consideration is whether Respondent's refusal
to furnish the Union with the names and home addresses of bargaining
unit employees constituted a violation of sections 7114(b)(4) and
7116(a)(1),(5), and (8) of the Statute. Section 7114(b)(4) requires an
agency to furnish to an exclusive representative, upon request and to
the extent not prohibited by law, data which is (1) normally maintained
by the agency in the regular course of business; and (2) reasonable
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
Respondent admittedly refused to comply with the Union's request for the
home addresses of the employees in the bargaining unit. The only
remaining issues are whether the disclosure of the requested information
is "prohibited by law" and "necessary" under Section 7114(b)(4).
The General Counsel argues that Respondent's refusal constitutes a
violation of the above sections of the Statute in view of the
Authority's decision on remand in Farmers Home Administration Finance
Office, St. Louis, Missouri, 23 FLRA No. 101 (1986) ("FHAFO"), petition
for review filed sub nom. U.S. Department of Agriculture and Farmers
Home Administration Finance Office, St. Louis, Missouri v. FLRA, No.
86-2779 (8th Cir. Dec. 23, 1986). In FHAFO the Authority concluded that
the release of names and home addresses of bargaining unit employees to
the exclusive representatives of those employees 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).
Respondent first argues that the release of the home addresses is
prohibited by the Privacy Act and Freedom of Information Act (FOIA).
Section (b)(2) of the Privacy Act provides that the prohibition against
disclosure is not applicable if disclosure of the information is
required under the FOIA. Exemption (b)(6) of the FOIA provides that
information contained in personnel files may be withheld if disclosure
would constitute a "clearly unwarranted invasion of personal privacy."
In FHAFO, the Authority analyzed these statutes and balanced the privacy
interests of federal employees against the public interests were not
particularly compelling. The Authority concluded that the release of
the names and home addresses was permissible under exception (b)(2) of
the Privacy Act.
Respondent contends that the Authority erred in FHAFO by not giving
greater consideration to the fact that employees might be subjected to
harassment or other potential abuse by the Union. Respondent does not
suggest that the current officers of the Union will misuse the
employees' addresses, but states that there is no guarantee that the
information will not be misused in the future. This argument is
rejected. In weighing the privacy interest in FHAFO, the Authority
clearly considered potential inconvenience and abuse to the employees.
Moreover, the Authority's consideration of potential abuse was also
demonstrated when it noted its holding was consistent with private
sector law. In one case mentioned by the Authority, the addresses could
be properly withheld from the union when there was evidence that their
disclosure would put the employees in imminent danger. Id. at 11.
Assuming arguendo that the Authority would be guided by the private
sector law on this point, it is noted that no evidence of potential
abuse was introduced in the instant case.
Respondent also disagrees with the Authority's conclusion in FHAFO
that exception (b)(3) of the Privacy Act, the routine use exception,
constitutes a separate legal basis for releasing the names and home
addresses to the Union. The Authority, following an OPM notice defining
routine uses of government personnel records (49 Fed. Reg. 36949,
36956), held that such a disclosure would constitute a "routine use" of
information contained in the personnel records when the information was
necessary for the Union to discharge its statutory obligations. Id.
Respondent contends that the employees' home addresses were only
"incidental to the actual records" and that the routine use exception
applies only to information for which the agency is specifically
required, presumably by law or higher authority, to maintain an accurate
record. It has been stipulated that the home addresses in issue are
normally maintained in the ordinary course of business by the
Respondent. Respondent's argument has no merit. In the first place,
the Privacy Act protects "any item . . . of information" about an
individual that is maintained, collected, used, or disseminated by an
agency, and this information may be released under the routine use
exception. 5 USC Section 552a(a) and (b)(3). The OPM notice provides
that personnel records may include the employee's home address. 49 Fed.
Reg. 36949, 36954. It states that "information in these records" may be
disclosed under the routine use exception. Id. at 36955. Thus there is
no indication in the law or regulations that disclosure should be
limited to information specifically "required" to be maintained by the
agency.
Accordingly, the names and home addresses herein may be disclosed
under exceptions (b)(2) and (b)(3) of the Privacy Act. Therefore, the
release of this information is not prohibited by law. FHAFO, supra.
Respondent argues that the information was not "necessary" within the
meaning of section 7114(b)(4) because alternative means of communication
with unit members were available to the Union. Respondent made an offer
of proof that the Union has 17 bulletin boards, 41 stewards, a base
newspaper in which notices of meetings can be published, meeting rooms
after work hours, an on-site Union office, a list of bargaining unit
employees with their organizational codes, and a telephone book showing
the location of each organization at the facility. However, the
Authority has and should be provided whether or not alternative means of
communication are available. FHAFO, supra. Accordingly, Respondent's
argument is rejected.
Finally, Respondent argues that the record fails to demonstrate that
the requested information is relevant to the Union's representational
duties. However, the Authority concluded in FHAFO that the Union's need
for the names and home addresses of bargining unit employees is so
apparent and essentially related to the nature of exclusive
representation itself that the Union need not even explain the reasons
for its request.
In view of the above, I conclude that Respondent violated sections
7114(b)(4) and 7116(a)(1), (5), and (8) of the Statute. Having reached
this conclusion, I need not address the alternative position taken by
the General Counsel. Accordingly, I recommend that the Authority adopt
the following:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Naval Air Rework Facility, Jacksonville, Florida
shall:
1. Cease and desist from:
(a) Refusing to furnish the International Brotherhood of Teamsters,
Public Employees Division, Local 512, the exclusive representative of an
appropriate unit of employees, the names and home addresses of all
employees in the bargaining unit.
(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
purpose and policies of the Statute:
(a) Furnish the International Brotherhood of Teamsters, Public
Employees Division, Local 512, the exclusive representative of its
employees, with the names and home addresses of all bargaining unit
employees.
(b) Post at all its facilities where bargaining unit employees
represented by International Brotherhood of Teamsters, Public Employees
Division, Local 512, 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
Rework Facility, Jacksonville, Florida, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to members
of the bargaining unit represented by the International Brotherhood of
Teamsters, Public Employees Division, Local 512, are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region IV, Federal Labor
Relations Authority, Suite 736, 1371 Peachtree Street, N.E., Atlanta,
Georgia 30367, in writing, within 30 days of the date of this Order as
to what steps have been taken to comply herewith.
/s/ Randolph D. Mason
Administrative Law Judge
Dated: August 19, 1987
Washington, D.C.
WE WILL NOT refuse to furnish the International Brotherhood of
Teamsters, Public Employees Division, Local 512, the exclusive
representative of bargaining unit employees, the names and home
addresses of those employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL, upon request of International Brotherhood of Teamsters,
Public Employees Division, Local 512, furnish the names and home
addresses of all of the bargaining unit employees of the Naval Air
Rework Facility, Jacksonville, Florida.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
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 for the Federal Labor Relations Authority, Region IV, whose
address is: Suite 736, 1372 Peachtree Street, N.E., Atlanta, Georgia
30367 and whose telephone number is: (404)347-2324.
29 FLRA NO. 86
NAGE, SEIU and State of Connecticut, Adjutant General's Office, Case
No. 0-NG-1411, (Decided October 27, 1987)
7105(a)(2)(D) and (E)
CONDITIONS OF EMPLOYMENT
FACTORS DECIDING WHETHER A MATTER INVOLVES A C.O.E.
BARGAINING UNIT EMPLOYEES, WHETHER THE MATTER PERTAINS TO
MILITARY VS. CIVILIAN STATUS
NATIONAL GUARD TECHNICIANS
MILITARY ASPECTS OF CIVILIAN EMPLOYMENT
MILITARY ASPECTS DO NOT CONCERN CONDITIONS OF EMPLOYMENT
TRAINING
The case concerns National Guard technicians who, as a condition of
their employment, must become and remain military members of the
National Guard and must maintain the military grade specified for their
technician positions. The proposals at issue sought to negotiate the
pay status of such technicians while they were attending training that
applies to the military aspects of technician employment. The training
that technicians attend in military status is a requirement for military
promotion. Relying on existing precedent, the Authority concluded that
the proposal was not within the duty to bargain as it did not concern
conditions of employment.
Case No. 0-NG-1411
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO
Union
STATE OF CONNECTICUT, ADJUTANT GENERAL'S OFFICE
Agency
This case is before the Authority because of a negotiability appeal
filed under section 7106(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of a proposal made by the Union during negotiations over a
new collective bargaining agreement. For the reasons which follow, we
find the proposal to be outside the duty to bargain.
This case is essentially the same as Delaware Chapter, Association of
Civilian Technicians and Delaware National Guard, 28 FLRA No. 134
(1987). The employees represented by the Union are National Guard
technicians who, as a condition of their employment, must become and
remain military members of the National Guard and must maintain the
military grade specified for their technician positions. The proposal
here concerns the Military Education Program (MEP), a requirement which
is applicable to Active Guard and Reserve (AGR) and to the technicians
involved in this case. MEP training applies to the military aspect of a
technicians' employment. While attending MEP training, technicians are
in military status. The training is a requirement for military
promotion.
Section 1: Employees will not be required to use annual leave
or be in a leave without pay status when in an active duty for
training status as a member of the National Guard.
The Union contends that civilian technicians attending MEP training
currently are allowed to use military leave, which is accrued at a rate
of 15 days per fiscal year and, when that leave is exhausted, they must
either use annual leave or be placed in leave without pay status. If
the latter occurs, the technician receives military pay and benefits,
which the Union contends is generally less than civilian pay and
benefits. The Union describes the proposal as seeking to allow civilian
technicians to continue receiving their full civilian pay and benefits
after they have exhausted their military leave while attending MEP
training, without having to use annual leave. The Union states that the
proposal constitutes an appropriate arrangement, under section
7106(a)(3), for employees adversely affected by the Agency's exercise of
its management right.
The Agency asserts that (1) the proposal is nonnegotiable because it
concerns military aspects of technician employmemt and, consequently,
does not concern conditions of employment within the meaning of the
Statute; (2) insofar as the proposal seeks to provide technicians the
option of attending MEP training in civilian status, it conflicts with
law, the "Training Act," as well as an agency regulation for which a
compelling need exists, TPR 400; (3) the status of an employee
attending military training constitutes a methods and means of
performing work within the meaning of section 7106(b)(1); and (4)
insofar as the proposal seeks to allow technicians attending military
training in military status to receive the pay and benefits attached to
their civilian positions, it violates the "Training Act."
The proposal in this case is to the same effect as Proposals 4 and 6
in Delaware Chapter, Association of Civilian Technicians and Delaware
National Guard, 28 FLRA No. 134 (1987). Those proposals sought to
negotiate the pay status of National Guard technicians while they were
attending MEP training. This proposal essentially seeks a similar
result. In Delaware National Guard we found that Proposals 4 and 6
concerned the military aspects of technician employment and, thus, did
not concern conditions of employment. For the same reasons as set forth
more fully in that decision, we find that this proposal is not within
the duty to bargain.
We note that the Authority's decision concerning Provisions 2 and 5
in Association of Civilian Technicians, Inc., Pennsylvania State Council
and the Adjutant General, Department of Military Affairs, Commonwealth
of Pennsylvania, 7 FLRA 346 (1981), rev'd on other grounds sub nom.
Adjutant General, Department of Military Affairs v. FLRA, 685 F.2d 93
(3d Cir. 1982), is distinguishable and does not compel a different
conclusion. In that case the only issue presented to the Authority was
whether a compelling need existed for certain agency regulations.
In view of our conclusion that the proposal does not concern
conditions of employment, we do not decide the Agency's other arguments
as to the nonnegotiability of the proposal. Since our determination
that the proposal is nonnegotiable is not based on a finding that it
conflicts with section 7106, we do not reach the Union's contention that
the proposal constitutes an appropriate arrangement under section
7106(b)(3). See National Federation of Federal Employees, Local 1153
and U.S. Army, Seventh Signal Command and Fort Ritchie, Fort Ritchie,
Maryland, 26 FLRA No. 61 (1987).
The Union's petition for review is dismissed.
Issued, Washington, D.C., Octboer 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 84
AFGE, Locals 696 and 2010 and Naval Supply Center, Jacksonville,
Florida, Case No. 0-NG-1392, (Decided October 27, 1987)
7105(a)(2)(E)
7106(a)(2)(D)
EMERGENCY ACTION, MANAGEMENT RIGHT
EMERGENCY, DEFINITION OF
PRECLUDING AGENCY FROM DETERMINING IF AN EMERGENCY EXISTS
The proposal at issue provided a definition for the term "emergency"
to be generally applied to the parties' negotiated agreement as a whole,
including clauses that concern the exercise of management rights. The
Authority found the proposal nonnegotiable in that it limits
management's section 7106(a)(2)(D) right by precluding the Agency from
independently assessing whether an emergency exists.
Case No. 0-NG-1394
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCALS 696 and 2010
Union
NAVAL SUPPLY CENTER JACKSONVILLE, FLORIDA
Agency
This case is before the Authority because of 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. For the following reasons, we find that
the proposal is not negotiable.
The term "emergency," for purposes of this agreement means a
situation which . . .
(1) is outside the control of the Employer;
(2) requires sudden or immediate action on the part of the
Employer; and
(3) could not have been reasonably foreseen by the Employer.
The Agency contends that by defining the term "emergency," the
proposal limits and is, therefore, inconsistent with its reserved right
under section 7106(a)(2)(D) of the Statute to take "whatever actions may
be necessary to carry out the agency mission during emergencies."
According to the Union, the proposal is intended to define the term
"emergency" only for purposes of the parties' collective bargaining
agreement and "does not necessarily have any specific application to any
other clause in the contract involving any management right." Union
Response at 3. In this connection, the Union expressly states that "the
use of the term in the collective bargaining agreement is likely to have
a different application that in (section) 7106(a)(2)(D) . . . and this
proposal has no application to the statutory definition and does not
seek to modify the statutory intent." Petition for Review at 2.
The Union's explanation that the proposal does not specifically apply
to any clauses in the parties' collective bargaining agreement involving
management rights does not comport with the plain language of the
proposal. By its language the proposal provides a definition for the
term "emergency" to be generally applied to the parties' negotiated
agreement as a whole, including clauses that concern the exercise of
management rights.
Based on the foregoing, we conclude that this proposal is to the same
effect as Provision 2 in National Federation of Federal Employees, Local
2059 and U.S. Department of Justice, U.S. Attorney's Office, Southern
District of New York, New York, New York, 22 FLRA No. 13 (1986) which
likewise defined the term "emergency" for application in the parties'
collective bargaining agreement. The Authority held that the provision
was nonnegotiable because, rather that allowing the Agency to
independently assess whether an emergency exists, it would have limited
management's right to act during emergencies to situations which met the
proposed definition. For the reasons stated in U.S. Attorney's Office,
Southern District of New York, we find that the present proposal, by
defining the term "emergency" as used in the parties' collective
bargaining agreement, limits management's section 7106(a)(2)(D) right by
precluding the Agency from independently assessing whether an emergency
exists. As a result, it is nonnegotiable. See also National
Association of Government employees, Local R4-75 and U.S. Department of
the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7
(1986)(Provision 2).
The Union's petition is dismissed.
Issued, Washington, D.C., October 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
29 FLRA NO. 83
Federal Union of Scientist and Engineers, NAGE, Local R1-144 and
Naval Underwater Systems Center, Newport, Rhode Island, Case No.
0-NG-1455, (Decided October 27, 1987)
7105(a)(2)(E)
7117
NEGOTIABILITY PROCEDURE
ALLEGATION OF NONEGOTIABILITY
WITHDRAWAL OF ALLEGATION
The petition for review was dismissed on the basis of the Activity's
withdraw of the allegation of nonegotiability.
Case No. 0-NG-1455
FEDERAL UNION OF SCIENTIST AND ENGINEERS, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-144
Union
NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT, RHODE ISLAND
Activity
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute on a petition
for review of a negotiability issue filed by the Union.
The record in this case indicates that by memorandum dated September
10, 1987, the local Activity declared the Union's proposal concerning
promotional opportunities created by a reorganization to be a permissive
subject of negotiation, and that management did not desire to bargain
over the matter. On September 14, 1987, pursuant to section 7117 of the
Statute and sections 2424.1 and 2424.3 of the Authority's Rules and
Regulations, the Union filed a petition for review as to whether the
disputed proposal was within the duty to bargain.
By letter dated October 15, 1987, the parent Agency filed a request
with the Authority asking to withdraw the allegation of
nonnegotiability. Therefore, there is no longer an issue before the
Authority whether the proposal in this case is within the parties' duty
to bargain under the Statute.
Accordingly, and apart from other consideration, the petition for
review in this case is hereby dismissed.
For the Authority.
Issued, Washington, D.C., October 27, 1987.
/s/ Harold D. Kessler
Director of Case Management
29 FLRA NO. 82
Dep't of the Army, Washington, D.C. and Army Field Artillery Center
and Fort Sill, Fort Sill, Okla. and NFFE and NFFE Local 273 and General
Divers, Chauffeurs and Helpers, Local Union No. 886, Case No.
6-CA-60105, (Decided October 23, 1987)
7102
7116(a)(1)
AGENCY ULP (ALLEGED) 7116(a)(1)
ELECTIONS
CONDITIONS OF EMPLOYMENT
CHANGES IN CONDITIONS OF EMPLOYMENT
QUESTION CONCERNING REPRESENTATION
ELECTIONS
AGENCY MUST ASSUME A NEUTRAL POLICY
OBJECTIONS TO ELECTIONS
RUNOFF ELECTION
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
ELECTIONS
This case concerned consolidated unfair labor practice allegations
and objections to an election involving allegations that the Agency had
interfered with employees' exercise of their statutory rights by
violating the neutrality to be maintained during the pendency of a
question concerning representation (QCR). With respect to the unfair
labor practice allegations, which were directed at events occuring
before, during and after a meeting held between Respondent
representatives and the White House staff and representatives of the
Petitioner Teamsters Union in the Old Executive Office Building to
discuss employee concerns at the Activity. The Authority stated that
the test to be applied is whether the agency's conduct may reasonably
tend to coerce or intimidate an employee, or, in the case of a
statement, whether an employee could reasonably have drawn a coercive
inference from the statement. The Authority concluded that the
Department of Army violated its duty to remain neutral during the
pendency of a QCR, by meeting and dealing with representatives of the
Teamsters. The Authority noted that the Army knew of the pending
election, and that the meeting related to matters concerning employees
for which the Teamsters were attempting to gain recognition. Thus,
management was meeting and dealing on matters involving bargaining unit
employees' conditions of employment with a labor organization other than
the exclusive bargaining representative. Further, three unit employees
were present at the meeting. In the Authority's view, by this conduct
management's actions, reasonably interpreted, showed a preference for
one of two competing labor organizations during the course of an
election campaign. This conduct interfered with the bargaining unit
employees' exercise of their rights to freely choose their exclusive
representative, and therefore violates section 7116(a)(1) of the
Statute.
With respect to the objections to the election, as to that objection
which related to the meeting that was the subject of the unfair labor
practice allegation, for the reasons discussed as to the ULP, the
Authority determined that the objection should be sustained as it
demonstrated inpermissable interference with the conduct of a fair
election. The Authority adopted the Judge's recommendation that the
remaining objections should be dismissed. On the basis of the
sustaining of the one objection, the Authority set aside the (runoff)
election and directed that it be reheld.
Case No. 6-CA-60105
DEPARTMENT OF THE ARMY HEADQUARTERS WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL FORT SILL, OKLAHOMA
Respondent
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Charging Party
GENERAL DRIVERS, CHAUFFEURS AND HELPERS LOCAL UNION NO. 886,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Party
Case No. 6-RO-40005
DEPARTMENT OF THE ARMY HEADQUARTERS WASHINGTON, D.C. AND U.S. ARMY
FIELD ARTILLERY CENTER AND FORT SILL FORT SILL, OKLAHOMA
Agency
GENERAL DRIVERS, CHAUFFEURS AND HELPERS LOCAL UNION NO. 886,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Petitioner/Intervenor
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT LOCAL 273
Incumbent Labor Organization
The Administrative Law Judge issued his Decision in the
above-entitled proceeding consolidating Case Nos. 6-CA-60105 and
6-RO-40005. In Case No. 6-CA-60105, the Judge found that the Respondent
had interfered with employees' exercise of their statutory rights by
violating the neutrality to be maintained during the pendency of a
question concerning representation (QCR). The Judge concluded that the
Respondent had engaged in the unfair labor practices alleged in the
complaint and recommend that it be ordered to cease and desist therefrom
and take certain affirmative action.
In Case No. 6-RO-4000T, the Judge recommended dismissal of six of the
seven objections to the conduct improperly affecting the results of an
election. The Judge recommended that the remaining objection, Objection
5, which dealt with the matter which was also the subject of the unfair
labor practice proceeding in Case No. 6-CA-60105, be sustained. In
accordance with section 2422.21(g)(2) of the Authority's Rules and
Regulations, the Judge made no recommendation as to any remedial action
to be taken concerning that objection.
A hearing was conducted on the consolidated case at Fort Sill,
Oklahoma on June 26-28, 1986. At the outset of the hearing, the Judge
granted the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Teamsters) status as a Party to
the unfair labor practice case. After the hearing, briefs were
submitted to the Judge. The Judge issued his decision on February 27,
1987. The Respondent and the Teamsters filed exceptions to the Judge's
decision. The General Counsel filed an opposition to the exceptions.
Pursuant to sections 2422.21 and 2423.29 of the Authority's Rules and
Regulations and sections 7111 and 7118 of the Federal Service
Labor-Management Relations Statute (the Statute), we have reviewed the
rulings of the Judge made at the hearing and find that no prejudicial
error was committed. The rulings are affirmed. The Judge's findings,
as modified herein, and his conclusions and recommendations are adopted.
On consideration of the entire record in this case, we conclude, in
agreement with the Judge, that a preponderance of the evidence received
demonstrates that the Respondent engaged in the unfair labor practice
alleged, and we shall issue an appropriate remedial order. We also
conclude that Objection 5 to the election should be sustained. We
therefore will set aside the runoff election and direct that a third
election be held.
Because of the nature and number of exceptions to the Judge's
Decision submitted relating to the Judge's alleged failure to find
certain facts, and to the Judge's alleged error in finding other facts,
we have set forth our findings of fact below. We have prepared these
findings of fact as a convenience to the reader, and to set forth those
facts established by the record which we find are necessary to address
the allegations of the complaint and objections to the election.
On April 20, 1984, the General Drivers, Chauffeurs and Helpers Local
Union No. 886 (Teamsters Local 886) filed a petition to represent a
2500-employee bargaining unit at Fort Sill, Oklahoma which was then
represented by the National Federation of Federal Employees (NFFE) Local
273. At that time, the Teamsters represented about 600 employees of the
Directorate of Engineering and Housing at Fort Sill in a separate
bargaining unit.
On June 20, 1985, an election was conducted for the bargaining unit
at Fort Sill being sought by the Teamsters. NFFE received 493 votes,
the Teamsters received 420 votes, and 251 votes were cast against
exclusive recognition. /1/ Because neither union received a majority of
the votes cast, a runoff election between NFFE and the Teamsters was
required. The runoff election was held on October 17, 1985 at Fort
Sill. The Teamsters received 591 votes and NFFE received 515 votes.
NFFE filed objections to the election on October 22, 1985.
On November 18, 1985, NFFE filed an unfair labor practice charge
against the Department of the Army, Fort Sill. Amendments to the charge
were filed on January 21 and February 12, 1986. On February 19, 1986,
the General Counsel issued an unfair labor practice complaint. The
complaint alleged that the Respondent violated section 7116(a)(1) of the
Statute, since on or about October 10, 1985, and continuing to date, the
Respondent interfered with, restrained and coerced employees in the
exercise of their rights guaranteed in section 7102 of the Statute.
Specifically, the complaint alleged that the Respondent breached the
requirement of neutrality during the pendency of a question concerning
representation at its Fort Sill facility by conducting a meeting in the
Old Executive Office Building at Washington, D.C. with representatives
of Teamsters Local 886, Teamsters headquarters, and employees of the
bargaining unit which was represented by NFFE during which matters
concerning conditions of employment were discussed. The complaint
alleged, in the alternative, that the Respondent violated section
7116(a)(1) by conducting the meeting when the Respondent either knew or
should have known that there was a question concerning representation
and/or that the employees at the meeting were members of the bargaining
unit represented by NFFE.
The complaint and the objections to the election were consolidated
for hearing by the Authority's Regional Director on February 19, 1986.
The hearing was conducted at Fort Sill on June 26-28, 1986. Extensive
testimony and exhibits were received and all parties presented their
positions in briefs to the Judge.
On May 17, 1985, Teamsters General President Jackie Presser wrote to
Edward J. Rollins, Assistant to the President for Political and
Governmental Affairs, requesting a meeting regarding contracting out at
Fort Sill, Oklahoma. The letter indicated that the Teamsters were
involved in an election campaign to represent employees at Fort Sill.
(The text of the letter is set forth at pages 6-7 of the Judge's
Decision.) Rollins responded to Presser's letter on May 28, 1985,
indicating his willingness to meet with Presser and representatives of
Teamsters Local 886 to discuss the Fort Sill situation. See pages 7-8
of Judge's Decision.
Presser had requested the meeting after Barry Feinstein, Director of
the Teamsters' Public Employee Trade Division, told him about a problem
identified at Fort Sill. Feinstein had learned about the contracting
out issue from Charlie Thompson, President of Teamsters Local 886, who
was organizing at Fort Sill. Thompson identified contracting out as the
sole major issue there, and it appeared to Thompson and Feinstein that
the regulations governing contracting out were not being followed at
Fort Sill.
The Teamsters reproduced copies of the letters described above in a
handbill which was distributed at Fort Sill prior to the first election
on June 20, 1985. The handbill also stated: "Teamsters have gone to
the top for you and we're not done yet."
On June 12, 1985, NFFE National President James M. Peirce wrote
Rollins, requesting that Federal employees at Fort Sill be informed that
the White House "takes no sides in the union representation election to
be held there June 20, 1985. This request is made necessary by the
publication and distribution of a handbill reproducing letters exchanged
by Teamsters President Jackie Presser and yourself." The letter to
Rollins stated that NFFE was the exclusive representative of the Fort
Sill employees in question, and that the Teamsters had no standing to
discuss contracting out on their behalf. Peirce requested a response
from Rollins by June 14, 1985.
On July 1, 1985, Rollins wrote to Peirce stating that the White House
was taking no sides in the election at Fort Sill. The letter further
stated that NFFE's access to the White House is equal to that of any
other organization, and that the President gives fair consideration to
the legitimate concerns of all citizens and their organizations. See
pages 8-9 of the Judge's Decision.
Feinstein, Director of the Teamsters' Public Employee Trade Division,
wanted the meeting to occur as soon as possible. The Teamsters'
headquarters staff arranged the details for the meeting, which was
scheduled for October 10, 1985. Feinstein testified that the purpose of
the meeting was to alleviate fear of loss of jobs at Fort Sill because
of contracting out, and to represent employees as best as the Teamsters
could, since the Teamsters were going to win the election.
At the Teamsters' Fort Sill office, there had been general talk of a
meeting in Washington, at the White House, for about 3 or 4 months prior
to the event. Nothing definite was mentioned, however, until Paul
Lumlee, a Teamsters business agent, contacted the selected
employee-attendees on October 8, 1985, and asked whether the persons
wished to attend. Thompson made the selections of the employees to
attend the meeting. The selectees were not informed of the purpose of
the meeting, but were told that they might meet the President. The
selected employees flew to Washington at the Teamsters' expense. On
arrival, the employees first went to the Teamsters' headquarters for a
briefing and to meet national Teamsters' staff and officers.
A call was made from the White House to the Department of Defense and
a request was made that someone attend the scheduled October 10, 1985
meeting. Marybell Batjer from the Department of Defense contacted the
Department of the Army seeking someone to attend the meeting. Michael
Owen, Principal Deputy Assistant Secretary of the Army for Installations
and Logistics, and Valcris O. Ewell, Jr., Deputy Assistant Secretary of
the Army for Programs and Logistics, learned of the meeting by a note
dated October 3, 1985, signed by Katy Smith, secretary to Assistant
Secretary of the Army John Shannon. Shannon asked Owen and Ewell to
attend the meeting.
The October 3, 1985 note indicated that the topic of the meeting was
"contracting out problems at OK Army base." The note also indicated that
the meeting was being held at the Army's initiative, and that the
meeting would not begin until the Army's representatives arrived. Owen
did not have any other advance information about the meeting and was not
aware of any background paper.
Ewell requested additional information in preparation for the
meeting. He asked Col. James Schroeder, assigned to the Comptroller of
the Army, to find out information for the meeting. On October 9th,
Schroeder told Ewell information for the meeting, while walking down a
hallway. Additional conversation about the meeting occurred during
plane flights to and from Fort Dix early on October 10, 1985. Army
files contain a memorandum from Schroeder to Ewell about this
information (General Counsel's Exhibit 20) which is reprinted on pages
10 and 11 of the Judge's decision. The memorandum stated that "the
Teamsters are trying to take over representation of the 2500 other
(NFFE) employees(.) (T)he election will be on 17 Oct." The memorandum
also stated that "your (Ewell's) meeting is a show the flag meeting to
impress Fort Sill's workers that the Teamsters can do more for them than
the NFFE." Ewell testified that he did not recall seeing the memorandum
before the meeting, but that (1) the information told to him by
Schroeder is essentially the same as the information contained in the
memorandum; and (2) it would not be unusual to place a memo in the file
as a record of information supplied. Ewell gave inconsistent replies to
questions regarding his knowledge of the pending election at Fort Sill.
However, Ewell indicated that regardless of the pending election, it
would not have made any difference as to his attendance at the meeting.
On the morning of October 10, 1985, Andrew H. Card, Jr., Special
Assistant to the President for Intergovernmental Affairs, was asked to
attend a meeting later that day with Army and Teamsters attendees. The
request was made by C. C. McInturff after a 9:30 a.m. staff meeting.
Neither she nor Mitchell E. Daniels, Jr., or other assistants to the
President, could attend the meeting because of schedule conflicts. /2/
Card was told by McInturff that Army personnel would handle the meeting,
which was to discuss contracting out, and that he should just be there,
welcome everyone, and host the meeting. The meeting was to be held in
Room 122 of the Old Executive Office Building. /3/
When the Teamsters delegation arrived for the meeting, Card and Owen
were already in the room. The Teamsters delegation included: Kenneth
Fox, Wire Communications Cable Splicer, USAISC; Marge Duncan, Supply
Clerk; Carl Stein, Electronic Systems Mechanic, Directorate of
Logistics (formerly called Directorate of Industrial Operation); Aubrey
Parks, Welder, DEH; Charlie Thompson, President of Teamsters Local 886;
Barry Feinstein; Joe McDermott, Feinstein's assistant; and John Ring,
a Teamsters Public Affairs Office representative. Employees Fox,
Duncan, and Stein are in the NFFE bargaining unit where the election was
being held; employee Park is a member of the bargaining unit
represented by the Teamsters at Fort Sill.
Card took care of introductions, but did not participate further in
the meeting. Owen started the meeting, although Ewell had not yet
arrived. The discussion began about contracting out and the lack of
communication to employees about what was occurring. Ewell arrived
about 10-15 minutes late, and those present introduced themselves.
After Ewell arrived, he took over the meeting.
Parks spoke about the amount of money spent on contracting out
surveys and studies and gave the Army representatives a written
statement. Fox talked from a paper about cost plus contracting but did
not provide a copy to the Army attendees. Stein talked about
contracting out procedures. The employees also reported that the dates
for some of the contracting out activities kept changing.
Ewell was asked whether he would exempt some activities from
contracting out and whether he would change the fringe benefit rate used
in computations. Ewell gave a negative answer. Ewell learned that
there appeared to be a lack of communication with employees at Fort
Sill, and that the employees' input was not being sought concerning the
contracting out. Ewell said he would ensure that employees were kept
informed and that their input would be sought, if it took him coming to
Fort Sill personally. When informed that employees feared losing their
jobs, Ewell said that there was no reason for any employee to be "shown
the gates" of Fort Sill.
Owen left the meeting while it was still in progress. After the
meeting had been in session for about 75 minutes, Card indicated that
others needed to use the room, and began to escort the attendees from
the room. As the Army attendees were leaving, Feinstein remarked that
the Teamsters had done more in a short time than NFFE had done during
the entire time that it had represented the unit.
Ewell testified that the purpose of the meeting was to "show the
flag." He indicated that he would meet with anyone to discuss
contracting out. Ewell recalled NFFE being referenced at the meeting,
but did not recall a reference to an election.
Shortly after the meeting, a flyer was prepared by the Teamsters
about the meeting. The flyer, the text of which is set forth at pages
16-17 of the Judge's Decision, stated: "When we talk for you, the White
House listens." It quoted Ewell as stating that there is no reason why
any worker should be "shown the gates" of Fort Sill. The Teamsters'
headquarters asked Thompson to have the flyers distributed at Fort Sill.
About 5 days after the meeting, Owen saw a copy of the Teamsters
flyer. He read it carefully and thought it looked "OK," although he was
not sure of Ewell's exact words. Owen considered the flyer a
"reasonable dovetailing of my understanding of the meeting." Owen did
not see it as important, and did not do anything specific when he first
saw the flyer. Owen testified that he never thought to do anything
about the flyer.
When Owen learned the results of the Fort Sill election, he sent a
memo to Batjer, indicating that the Teamsters won the election. He
attached a copy of the letter he received from McInturff, thanking him
for attending the meeting, and indicating that the White House was glad
to have provided a neutral ground for the meeting between Army and the
Teamsters.
Ewell was shown a copy of the Teamsters' flyer at the hearing,
reviewed it, and indicated that it quoted him fairly accurately. He
specifically recalled using the term "shown the gates." After the
meeting, Eqell had Schroeder check on the problem of communications to
Fort Sill employees, as he had promised during the meeting.
Other events after the October 10, 1985 meeting concerning the
objections to the election will be discussed below in connection with
each specific objection. As noted earlier, the election was held
October 17th, and the Teamsters received a majority of the votes cast.
For the convenience of the reader, we are providing a summary of the
facts and circumstances relevant to the objections. We have thoroughly
reviewed the record, and as stated above, we conclude that the Judge
appropriately evaluated the evidence in this case.
Objection 1 involves alleged Teamsters entry and campaigning inside
Commissary work areas during duty time, at 3:15 p.m. on September 27,
1985. The Teamsters' representative mentioned is Marge Duncan. The
Commissary requires that non-employees sign in at a log, and wear an
identification badge. The log for September 27, 1985, reveals that
Marge Duncan entered the Commissary at 11:25 a.m. and left at 12:03 p.m.
There is no entry for her in the log book during that afternoon. There
is evidence that Duncan was at a retirement service from 3:00 p.m. until
after 4:00 p.m. that day.
The Commissary Officer reviewed the entire log for the period
September 1, 1985 until the election on October 17, 1985. The log is
kept in the Commissary manager's office or just outside the secretary's
office, upstairs. After 4:00 p.m. the log is brought downstairs to the
Commissary store manager's office. There is no guard by it. The
secretary does not check entries. The Commissary manager said that
someone could forget to enter the log, but the person would soon be
stopped for not wearing the required badge.
Objection 2 concerns an allegation that a supervisor permitted the
Teamsters representatives to enter an office during duty time and speak
to employees. First, Sandra Heine, the employee reporting the incident,
stated at the hearing that she was given the incorrect surname for the
person who "permitted" the Teamsters' representative's presence.
Mildred Hood, the name given in the objection, was a recently retired
supervisor. The employee who spoke to the Teamsters representative and
allegedly gave permission is Mildred Marshall, a secretary. Heine did
not know Mildred's surname, asked another employee, and was told it was
"Hood."
On October 9, 1985, at approximately 9:30 a.m., Carl Stein and
another Teamsters' representative entered the office. Stein spoke to
the secretary, Mildred Marshall. He asked whether the employees had a
set break period, and was told there was no set break period for the
building. Stein asked whether they might distribute literature, and
Marshall had no objection. The Teamsters' representatives then
proceeded to place Teamsters brochures on the desks in the office.
Stein testified that he asked Marshall whether there was a break area
and was told there was not. Stein did not notice any area that looked
like a break area.
Heine testified that occasionally workers take breaks at their desks,
but that there is a break area. Heine stated that she and three other
employees were clearly working on their side of the office, and that
they were not on break. Stein stated that no other employees were
present when the distribution of literature began, and that an employee,
believed to be Heine, returned while the distribution was being made.
He spoke to her for about 30 seconds, and left a brochure on her desk.
Stein estimated that he and the other representative were in the
building for about 5 or 6 minutes.
The supervisors for this office were not present at the time.
Heine's supervisor was on leave, and Marshall's supervisor was at a
meeting.
The third objection deals with an alleged meeting between Teamster's
representatives and an employee at the hospital reception desk on
October 9, 1985 between 11:15 and 11:45 a.m. On October 9th, Wanda
Seelig, an employee and NFFE supporter, saw three Teamsters'
representatives talking to the receptionist during duty hours. She told
them that it was illegal and would report it. Seelig contacted Velda
Mullins, an assistant to the Chief of Personnel. Mullins received
Seelig's call at 11:22 a.m. Mullins checked the clock immediately to
see whether this was before the lunch period. Mullins went over to the
hospital reception desk, which was about a 2-minute walk. She found
three people, LaVona Gribble, Dorey Clark, and an unidentified woman,
standing and talking to Archie Davis, who was behind the desk. Davis
was on duty. She did not hear the conversation. Mullins asked whether
they were discussing union business, and she was told they were not.
Davis said that he was at lunch, but Mullins did not see any lunch
present. Mullins asked them to step aside from the desk so that
patients could sign in. They complied.
Gribble testified that the lunch period for hospital reception desk
personnel is from 11:30 to 12:30. She stated that she, Clark, and a
Teamsters organizer from Louisiana arrived there at 11:31. Davis called
them earlier and asked them to stop by. He invited them to a dance he
was planning for Saturday night at a hotel.
Later that day, Gribble, Clark, and the Teamsters organizer asked for
and received information to speak to Seelig. They wanted to explain to
her that they had not been discussing union business, but had been
discussing the dance which Davis was planning. Seelig stated that she
did not hear the conversation at the reception desk, and that those
present stopped talking when she walked in. Seelig said that usually
people do not become quiet unless they have been caught, and that is why
she reported this as a discussion of union business. She said that it
is common sense that you do not call someone and ask them to come over
just to invite them to a dance; you invite them over the phone.
Objection 4 alleges that the polling place within Building 4705
(polling site 7) was moved to an inappropriate area and that other
improprieties occurred at that polling place.
During the first election at Fort Sill, in June 1985, NFFE did not
like the location of polling site 7. So management, NFFE and the
Teamsters representatives met and discussed alternate locations. The
Building 4705, which housed the medical library, was selected as the
place for polling site 7.
At approximately 7:05 a.m. on October 17, 1985, Mullins, assistant to
the Chief of Personnel, received a call from Capt. Stokes, of the
hospital staff, stating that the polling places was in the wrong part of
the library. The polling places had been set up by other management
staff. Stokes said that computer equipment was to be installed in that
portion of the building that day. The Chief of Personnel was not yet
in, so Mullins went to the polling site to explain the need to move the
poll. Mullins explained the situation to the FLRA agent, the Teamsters'
observer, /4/ and NFFE's observer, Wanda Seelig. Seelig objected. The
FLRA agent did not object or say anything. No one was voting at the
time, although others had voted earlier.
Mullins and Stokes moved the voting booth, tables, and chairs to the
next room, the medical library itself. After it was moved, the polling
booth was the same proximity from the door as it had been in the other
room. Mullins knew of no complaint concerning the location of the
booth, nor any allegation that the new location compromised ballot
secrecy. Likewise, Mullins knew of no objection to the placement of the
tables and chairs in the medical library.
No one was turned away from voting during the move or because of
relocation of the polling site. Arrows were placed outside the building
pointing to where to go to vote.
During the hearing, the Judge obtained detailed information from
various witnesses concerning the layout of the polling site, and the
approximate distances involved in the site. The Judge had Crouse sketch
a diagram of the polling site. The Judge also asked many witnesses
about the voting booth itself, and it is apparent that the booth was
fully covered on three sides, with a shorter curtain on the fourth, or
entry side. Thus, no one could see inside the booth itself.
One allegation relating to the propriety of the new setting for the
polling site involves traffic through the area by those using the
library during the day. However, one witness testified that only one or
two military doctors used the library for books, and the doctors did not
stay long. No other information on library patrons is contained in the
record.
Another aspect of the objection involves communications workers who
entered the polling site for the stated purpose of seeing about a
telephone installation or installing a phone. The objection concerns a
violation of the election ground rules which required that all
campaigning be at least 50 feet away from a poll. The communications
workers arrived at the medical library wearing Teamsters' paraphernalia
-- for example, T-shirts, hats, belt buckles, etc. Three communications
workers were there, and it was objected that a telephone installation
does not require that many people. The communications workers did not
have a telephone with them. The workers laughed while they were there,
staying in the polling area about 10 minutes. There were voters present
at the poll at the time. The NFFE observer objected that the presenece
of the communications workers, who were Teamsters' supporters, would
potentially intimidate voters. The Teamsters' observer testified that
the workers came in, did not bother anyone, and were not close to the
voting booth. The FLRA agent present at polling site 7 did not testify
at the hearing.
Finally, the last part of the objection involves a Teamsters'
campaigner escorting a lady to the observer's table inside the polling
site. Both the Teamsters and the NFFE observers testified that a
Teamsters' campaigner escorted a lady inside the polling site and
indicated to her where to go to vote. Both also testified that the lady
being escorted was a deaf, mute individual. The NFFE observer objected
because she did not believe that the individual needed an escort.
This objection relates to the "White House" meeting of October 10,
1985, which was publicized by a flyer prepared by the Teamsters and
distributed at Fort Sill just prior to the October 17, 1985 election.
The facts regarding this objection are set forth above in the findings
of fact dealing with the unfair labor practice.
Objection 6 deals with two allegations of Teamsters' representatives
distributing literature and campaign paraphernalia and talking to
employees in work areas on duty time.
Pam Hoover, a mail file clerk, testified that "Charlie from Florida"
and "Major" Peterson were in the work area after the morning break. She
also testified that on the day of the election, Marge Duncan and
Peterson were in the work area passing out materials.
Norma Mullin, Chief, Supply Branch, Material Support Division,
testified that on the day of the election, she received a call from a
supervisor that Teamsters' representatives were in the material
management section. She left her office and went there. The Teamsters
were leaving as she arrived. She recognized one of them, Peterson, a
retired sergeant major. She knew that he had been campaigning on behalf
of the Teamsters.
Objection 7 addresses an allegation that Teamsters' representatives
were given access to locked work areas, after hours, to distribute
campaign literature.
On September 24, 1985, Katherine Crowl was the first employee to
arrive at the Reynolds Army Hospital Transcription Center. She unlocked
the door and found that two Teamsters' brochures were on each desk.
Within the office, only she and the work leader had keys to the room,
which is locked during non-work time. Apparently there are master keys
to the room, since cleaning service is performed there in the evening.
Thus, there was no way to prove how the Teamsters gained entrance to
distribute the literature.
The Department of the Army excepts to the Judge's conclusions that
(1) the October 10th meeting constituted conduct by the Army which
employees would reasonably interpret as an expression by the Army that
it favored the Teamsters in the pending representation election; and
(2) the meeting gave the appearance of bargaining concerning contracting
out, or, alternatively, did constitute bargaining concerning contracting
out and its impact and implementation. The Army essentially presents
the same arguments in its exceptions and brief in support of exceptions
that it presented to the Judge.
The Teamsters filed extensive exceptions to the findings of fact and
the decision of the Judge. The Teamsters raise arguments regarding the
underlying situation similar to those made in its briefs to the Judge.
The General Counsel argues in opposition to the exceptions that
neither the Department of the Army nor the Teamsters raises any
arguments or legal theories not already considered by the Judge. The
General Counsel asserts that the Judge's findings and decision are
correct and should not be disturbed.
The National Federation of Federal Employees did not file exceptions
or any opposition to the exceptions of other parties.
Section 7116(a)(1) of the Statute provides that it is an unfair labor
practice for an agency to "interfere with, restrain, or coerce" any
employee in the exercise of that employee's rights under the Statute.
The test which the Authority has applied in order to determine whether
an agency's conduct constitutes interference, restraint or coercion is
not the subjective perceptions of the employee, nor is it the intent of
the agency. Rather, the test is whether, under the circumstances of the
case, the agency's conduct may reasonably tend to coerce or intimidate
an employee, or, in the case of a statement, whether an employee could
reasonably have drawn a coercive inference from the statement. Federal
Mediation and Conciliation Service, 9 FLRA 199 (1982). See also
Department of Treasury, Internal Revenue Service, Louisville District,
20 FLRA 660 (1985); U.S. Department of Justice, U.S. Marshals Service,
17 FLRA 304 (1985).
The basic issue in Case No. 6-CA-60105 is whether the Department of
the Army interfered with or coerced employees' free exercise of their
rights to select an exclusive representative. The specific issues
before us is whether Fort Sill bargaining unit employees would
reasonably infer that management expressed a preference for the
Teamsters from the actions of two key Army officials in meeting and
dealing with Teamsters' representatives at an October 10 meeting
regarding contracting out at Fort Sill. By use of the term "meeting and
dealing," we include meeting with Teamsters' representatives, listening
to their concerns, discussing their problems, and replying to those
concerns and problems. Such replies include the promises or commitments
that employees would not lose their jobs and that Ewell would personally
come to Fort Sill, if necessary, to ensure that communication with
employees was accomplished. If such a preference would reasonably have
been inferred from the agency's conduct, the conduct constitutes a
violation of section 7116(a)(1) of the Statute.
At the time of the events giving rise to this case, NFFE and the
Teamsters were campaigning and preparing for a runnoff election for a
2500-employee bargaining unit at Fort Sill. During an election
campaign, management has the duty to remain neutral. Department of the
Air Force, Air Force Plant Representative Office (AFPRO), Detachment 27,
Ft. Worth, Texas, 5 FLRA 492 (1981). A question concerning
representation (QCR) exists when a question regarding which labor
organization should represent employees is pending. Should any matter
arise concerning employees' conditions of employment, management must
maintain existing conditions of employment until the QCR is resolved.
Department of Justice, Immigration and Naturalization Service, 9 FLRA
253 (1982), rev'd as to other matters sub nom. U.S. Department of
Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). In the instant
situation, while the QCR was pending at Fort Sill, NFFE remained the
exclusive representative of the bargaining unit employees in the unit at
issue. Therefore, management was obligated to deal with NFFE during
that period on matters which affected those bargaining unit employees'
conditions of employment, and management's dealing instead with another
labor organization concerning their conditions of employment would
constitute interference with the rights of those bargaining unit
employees. See id.
The facts reveal that Army officials did meet and deal with the
Teamsters at the October 10th meeting, concerning a condition of
employment, namely contracting out, for bargaining unit employees at
Fort Sill. The meeting occurred during the pendency of a QCR at Fort
Sill. While the Teamsters did represent a separate, smaller unit at
Fort Sill, the Teamsters' allegation that the meeting was limited to
that unit's conditions of employment is unsupported by the record.
Rather, it is clear that the Teamsters and the NFFE bargaining unit
members in attendance presented contracting out problems facing Fort
Sill employees, including those employees in the unit which was the
object of the runoff election. The management officials present at the
October 10th meeting gave promises or assurances to the Teamsters'
representatives and the NFFE bargaining unit members in response to
their inquiries and concerns with respect to conditions of employment in
the unit represented by the Teamsters and in the NFFE unit.
Specifically, in response to NFFE unit member Stein's concern that
workers would be unemployed as a result of contracting out, Ewell stated
that there was no reason for employees to be "shown the gates" of Fort
Sill. After Ewell was told by the Fort Sill employees that their input
was not being solicited and that they were not being informed of
contracting out developments, Ewell further stated that he would
personally come to Fort Sill to ensure that full communication with the
workers occurred. In agreement with the Judge, we find that this
conduct by management provides a sufficient basis for finding that the
Agency violated its duty of neutrality during the pendency of a QCR.
From this conduct, employees reasonably could infer management's
preference for the Teamsters. Such conduct constitutes interference
with the employees' right to freely choose who should be their exclusive
representative.
For the reasons discussed below, we conclude that the exceptions
filed by the Respondent and the Teamsters do not provide any basis to
overturn the Judge's conclusions that the Respondent's conduct
constituted an unfair labor practice.
The Department of the Army raised two exceptions regarding whether
the actions by Army officials at the October 10th meeting would
reasonably be interpreted by employees as an expression of preference
for the Teamsters, and whether the meeting constituted bargaining or
gave the appearance of bargaining concerning contracting out.
The Army's exceptions merely reflect disagreement with the Judge's
well-reasoned conclusions which we have adopted. As indicated above,
the facts clearly show that Army officials met with Teamsters
representatives during the pendency of a QCR at Fort Sill and discussed
matters affecting NFFE bargaining unit employees' conditions of
employment. In agreement with the Judge, we find that the Army was
aware of the pending election at Fort Sill through information provided
by Schroeder and his memorandum. We have found this conduct sufficient
to constitute interference with the employees' exercise of their rights.
We therefore need not reach the issue of whether the conduct at the
October 10th meeting actually constituted bargaining.
Many of the Teamsters' exceptions, or portions of exceptions, relate
to the Judge's findings of fact or to his failure to include certain
alleged undisputed facts in his Decision. The Teamsters also allege
that the Judge "plagiari(zed)" from portions of the General Counsel's
brief. We have set out the facts of the case, above, necessary to
resolve the complaint. In preparing our findings of fact, we have
thoroughly reviewed the record and find that the Judge's findings are
supported by the record in this case. The Teamsters' exceptions merely
reflect disagreement with the Judge's interpretation of the record of
this case.
The Teamsters also raise multiple exceptions, many of which are
interrelated or repetitive, and which concern matters not relevant to
this complaint or matters which we need not reach. As indicated below,
we will not address exceptions regarding these issues.
Finally, the Teamsters except to the Judge's failure to record in his
decision that the Teamsters are a "party" to both Case No. 6-CA-60105
and Case No. 6-RO-40005. We have noted that Teamsters as a party to
both cases in the caption of this decision. Moreover, their status as a
"party" to the unfair labor practice proceeding, granted by the Judge,
is clearly expressed on the second page of this decision.
Many of the Teamsters' exceptions relate to section 7116(e) of the
Statute. The Teamsters argue that management's conduct at the October
10th meeting is protected by the provisions of that section, and that
because of section 7116(e) there is no basis for finding an unfair labor
practice complaint against management.
Section 7116(e) of the Statute states:
The expression of any personal view, argument, opinion or the
making of any statement which --
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the record with respect to any false or misleading
statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions,
(A) constitute an unfair labor practice under any provision of
this chapter, or
(B) constitute grounds for the setting aside of any election
conducted under any provisions of this chapter.
Based on our findings of fact, we find that management's actions at
the October 10th meeting were not undertaken for any of the allowable
purposes listed above in subsections (1), (2), or (3). Further, even if
we were to find that management's actions fall within one of the three
allowable categories, it is clear that at least two promises were made
by representatives of the Department of the Army during the meeting:
(a) that employees need not fear that they would be "shown the gates" of
Fort Sill, that is, they need not fear losing employment if contracting
out occurs; and (b) that officials of the Department of the Army would
ensure that employees were informed of activities concerning contracting
out at Fort Sill; that employees' input would be sought regarding
contracting out; and that, if this did not occur, an Assistant
Secretary of the Army would personally come to Fort Sill and conduct the
required communication with the employees. Therefore, because these
promises of benefit were made at the meeting in response to points
raised by the Teamsters' attendees, the meeting does not fall within the
protection of section 7116(e). See 162nd Tactical Fighter Group,
Arizona Air National Guard, Tucson, Arizona, 18 FLRA 583, 607 (1985).
For this reason, the exceptions raised by the Teamsters involving
section 7116(e) of the Statute are without merit.
Several of the Teamsters' exceptions contend that the October 10th
meeting constituted lawful consultation by a labor organization with
management. The Statute provides for two types of consultation:
national consultation rights and consultation rights on Government-wide
rules or regulations. The authorities for these rights are found at 5
U.S.C. Sections 7113 and 7117(d)(1), respectively. Implementing
regulations for these consultation rights are found in Part 2426 of the
Authority's Rules and Regulations. Neither the Teamsters nor the
Department of the Army alleges that the Teamsters possess either of the
consultation rights, nor does the record reflect that these consultation
rights are accorded to the Teamsters. The "authorities" cited by the
Teamsters in the exceptions do not support its contentions in this
regard.
The Teamsters also argue that the October 10th meeting constituted
"consultation" in general, under an entitlement established by the
President's policy statement on consultation with organized labor, and
the Secretary of Defense's implementing statement. This argument
overlooks the fact that under the Statute, management must deal only
with the exclusive representative of its employees regarding conditions
of employment. Further, during the pendency of a QCR, any dealings must
be with the incumbent exclusive representative. Thus, under this theory
any consultations which management wished to conduct with respect to the
NFFE unit could have lawfully involved only NFFE. See Department of
Justice, Immigration and Naturalization Service, 9 FLRA 253, 283-86
(1982).
For the above stated reasons, the Teamsters' several exceptions
regarding consultation and presentation of views on policy matters are
without merit.
conclusions or rulings
Several of the Teamsters' exceptions merely disagree with the Judge's
findings, conclusions or rulings which we have adopted for the reasons
and with the minor modifications set forth above. /5/ As to those
exceptions warranting separate consideration, we find, for the reasons
stated below, that none present grounds to alter the Judge's Decision.
The Teamsters except to the Judge's admission of General Counsel's
Exhibit 20, which is the memorandum from Schroeder regarding information
provided to Ewell in preparation for the October 10th meeting. The
Teamsters assert that the memorandum is inadmissible because it is
hearsay since Schroeder did not testify and identify the memorandum at
the hearing. The Judge found that the memorandum was admissible since
it was contained in the Department of the Army's files, and because
Ewell indicated, during his testimony, that the content of the
memorandum is essentially the same as the information conveyed to him by
Schroeder in advance of the meeting. Furthermore, 5 U.S.C. Section
7118(a)(6) provides that in hearings in unfair labor practice cases,
traditional rules of evidence are not binding. Finally, Ewell testified
concerning his office's practice of preparing "memos to the record." For
these reasons, the Teamsters' exception is without merit.
The Teamsters except to the Judge's reliance on established Authority
rulings that agencies have a duty to remain neutral during the pendency
of a QCR, and that the incumbent union was and remains the
representative of the employees during the pendency of a QCR. The
Teamsters' exceptions amount to nothing more than disagreement with a
long line of Authority decisions. We find no reason to overturn our
established precedent, and, in agreement with the Judge, as explained
above, we reaffirm the Authority's holding that agencies must remain
neutral during the pendency of a QCR. See Department of the Air Force,
AFPRO, 5 FLRA 492, 500 (1981). We also reaffirm the principle that
during the pendency of a QCR the incumbent union was and remains the
exclusive representative of the employees. See Department of Justice,
Immigration and Naturalization Service, 9 FLRA 253, 283-286 (1982).
The Teamsters also disagree with the Judge's ultimate conclusion that
the conduct of the Department of the Army constituted the unfair labor
practice as alleged. The Judge properly stated the test to be used in
judging conduct in situations concerning an agency's neutrality during
the pendency of a question concerning representation, such as surrounded
the October 10th meeting. The test is whether, under the circumstances
of the case, the employer's conduct or statements reasonably tend to
interfere with the exercise of employees' protected rights. Federal
Mediation and Conciliation Service, 9 FLRA 199 (1982). The Judge based
his conclusion on that test. The Judge explained in detail the facts
relied upon to reach his conclusion. These included the events at the
meeting, the matters discussed, and the promises made. The Judge noted
especially the Respondent's statements that employees need not fear
"being shown the gates of Fort Sill" should contracting out occur, and
Ewell's commitment to personally come to Fort Sill, if necessary, to
ensure that communications with employees concerning contracting out
occurred. The Judge also pointed to Schroeder's memorandum, found in
the Department of the Army's files, which Ewell testified was
essentially the same as the information orally supplied to him by
Schroeder in preparation for the meeting. The Teamsters' exception
constitutes nothing more than disagreement with the Judge's evaluation
of the facts of the case.
Finally, many Teamsters' exceptions address matters which are not
relevant to this complaint, or matters which are not necessary to
address in order to decide this case.
The Teamsters raise several exceptions regarding the Judge's failure
to adopt facts found in the General Counsel's decision to dismiss
another unfair labor practice charge against the Department of the Army.
In agreement with the Judge, we find that this case must be decided on
its own record. 5 U.S.C. Section 7118(a)(7). Further, the decision of
the General Counsel on an appeal of a Regional Director's decision not
to issue a complaint is final, and is not subject to review by the
Authority or any other body. See Turgeon v. FLRA, 677 F.2d 937 (D.C.
Circ. 1982).
The Teamsters except to the Judge's failure to find that bargaining
about contracting out is outside the duty to bargain. The Federal
Service Labor-Management Relations Statute, at 5 U.S.C. Section
7106(a)(2)(B), provides among other things that it is a reserved
management right to decide whether to contract out. However, impact and
implementation bargaining concerning contracting out is within the duty
to bargain. See American Federation of Government Employees, AFL-CIO,
Local 1923 and Department of Health and Human Services, Office of the
Secretary, Office of the General Counsel, Baltimore, Maryland, 22 FLRA
No. 106 (1986), enforced sub nom. U.S. Department of Health and Human
Services v. FLRA, 822 F.2d 430 (1987); American Federation of
Government Employees, Local 1904 and Department of the Army, 16 FLRA 358
(1984); and American Federation of Government Employees, AFL-CIO,
National Council of EEOC Locals and Equal Employment Opportunity
Commission, 10 FLRA 3 (1982), enforced sub nom. EEOC v. FLRA, 744 F.2d
842 (D.C. Cir. 1984), cert. dismissed, 106 S. Ct. 1678 (1986) (per
curiam). While the negotiability of contracting out is not a part of
the complaint before us, the Teamsters are raising the nonnegotiability
of contracting out as an affirmative defense. The Teamsters assert that
if a nonnegotiable subject were being discussed, the meeting could not
have been a discussion on conditions of employment. As indicated above,
while the right to make determinations with respect to contracting out
is a reserved management right, aspects of the impact and implementation
of that right are within the duty to bargain. Therefore, a meeting
discussing such impact or implementation of a contracting out decision
constitutes discussion on conditions of employment. Thus, the
Teamsters' exception regarding the negotiability of contracting out
matters is without merit.
Several Teamsters' exceptions involve matters which generally relate
to employees' rights. These matters include, but are not limited to,
freedom of speech under the First Amendment, the right to petition, and
the right to seek information from appropriate sources within the
Government. These issues do not relate to the conduct of the Department
of the Army, which is the subject of this complaint. Since these
exceptions raise issues which are not relevant to the issues in this
case, the exceptions do not provide any support for the Teamsters'
position that the Respondent did not commit the unfair labor practices
alleged.
Other Teamsters' exceptions address the rights of the Teamsters,
including rights associated with their status as an exclusive
representative of another bargaining unit at Fort Sill. Again, the
Teamsters' conduct is not the subject of the complaint in this case, and
the issues which the Teamsters raise in this regard are therefore
irrelevant.
The Teamsters argue that the October 10th meeting was a formal
discussion concerning grievances or general conditions of employment at
which the exclusive representative is to be given the opportunity to be
present, in accord with section 7114(a)(2)(A) of the Statute. There
were four Fort Sill employees present at the meeting. The Teamsters
were the exclusive representative of the bargaining unit in which only
one of the employees was located. The remaining three Fort Sill
employees were in the bargaining unit represented by NFFE. Thus, this
contention does not change the fact that management met and dealt with a
labor organization other than the exclusive representative with respect
to bargaining unit matters, during the pendency of a QCR.
Additional Teamsters' exceptions address the rights of NFFE. The
rights and conduct of NFFE, separate from the rights of the employees it
represents, are not involved in the actions of the Department of the
Army which are the subject of this complaint. Therefore, the Teamsters'
exceptions regarding NFFE's rights are irrelevant.
Lastly, other Teamsters' exceptions regard the "realities of
electioneering" and campaigning between rival labor organizations. Our
answers to these exceptions are contained in our overall findings and
conclusions adjudicating the substances of the complaint before us under
the statutory framework that regulates labor-management relations in the
Federal sector.
Based on the discussion above, we find that the Department of the
Army violated its duty to remain neutral during the pendency of a
question concerning representation at Fort Sill, by meeting and dealing
on conditions of employment of the NFFE bargaining unit with
representatives of the Teamsters at a meeting on October 10, 1985. The
Army knew of the pending election at Fort Sill. The meeting related to
contracting out at Fort Sill, for employees in the bargaining unit then
represented by NFFE, and for which the Teamsters were attempting to gain
recognition. Thus, management was meeting and dealing on matters
involving bargaining unit employees' conditions of employment with a
labor organization other than the exclusive representative of those unit
employees. Furthermore, Army management conducted these discussions
with, among others, three employees from the NFFE bargaining unit. By
this conduct, management's actions, reasonably interpreted, showed a
preference for one of two competing labor organizations during the
course of an election campaign. This conduct interfered with the
bargaining unit employees' exercise of their rights to freely choose
their exclusive representative, and therefore violates section
7116(a)(1) of the Statute.
Seven objections were raised regarding events related to the October
17, 1985 election between NFFE and Teamsters at Fort Sill. It is the
goal of the Authority to maintain conditions which will best ensure that
the employees' choice in selecting an exclusive representative will be
free from outside influence. The same premise exists for conditions for
elections of exclusive representative conducted by the National Labor
Relations Board. While totally perfect conditions may not exist,
efforts must be made to retain as close to optimum conditions as
possible.
The Judge recommended dismissal of six of the seven objections to
conduct alleged to have improperly affected the results of the election.
We find, in agreement with the Judge, that six of the seven objections
should be dismissed. The Judge recommended that the remaining
objection, Objection No. 5, be sustained. However, in accordance with
the Authority's Rules and Regulations, the Judge made no recommendation
as to any remedial action to be taken concerning that objection.
Objection No. 5 relates to the October 10th meeting which was the
subject of a Teamster campaign flyer entitled "When we talk for you, the
White House listens," and which was distributed less than 24 hours
before the polls opened on October 17, 1985. The events surrounding the
October 10th meeting have been discussed in detail in connection with
Case No. 6-CA-60105 above, and need not be recounted here. We find, in
agreement with the Judge, that Objection 5 should be sustained. In our
view, the matters set forth in Objection 5 demonstrate impermissible
interference with the conduct of a fair election.
We have reviewed the entire record in this case, and conclude that
Objection No. 5 to the election should be sustained. We therefore find
that the runoff election conducted on October 17, 1985, must be set
aside and we will direct that a third election be held.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Department of the Army,
Washington, D.C. and the Department of the Army, Headquarters, U.S. Army
Field Artillery Center and Fort Sill, Fort Sill, Oklahoma shall:
1. Cease and desist from:
(a) Conducting or participating in meetings requested by the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or arranged by White House staff, with employees in
a unit represented by the National Federation of Federal Employees, or
any other labor organization, during which terms and conditions of
employment and matters of concern to employees are discussed, while a
question concerning representation involving the unit is pending before
the Authority.
(b) In any like or related manner, expressing a preference as to
which labor organization should prevail in a representation election.
(c) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at the Department of the Army, Office of the Secretary, in
Washington, D.C. and at all facilities of the Department of the Army,
Fort Sill, Oklahoma, 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 Secretary of the Army, and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such notices are not altered, defaced, or covered
by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply.
An election by secret ballot shall be conducted among the employees
in the unit set forth in the Agreement for Consent or Directed Election
in Case No. 6-RO-40005 approved September 26, 1985, as soon as feasible,
but not earlier than sixty (60) days from the date of posting of the
attached Notice To All Employees. The Regional Director, Region VI,
Federal Labor Relations Authority shall supervise or conduct, as
appropriate, the election subject to the Authority's Rules and
Regulations. Eligible to vote are those in the unit who were employed
during the payroll period immediately preceding the date below,
including employees who did not work during the period because they were
out ill, or on vacation or on furlough, including those in the military
service who appear in person at the polls. Ineligible to vote are
employees who quit or were discharged for cause since the designated
payroll period and who have not been rehired or reinstated before the
election date. Those eligible to vote shall vote whether they desire to
be represented for the purpose of exclusive recognition by the National
Federation of Federal Employees, Local 273, or by the General Drivers,
Chauffeurs and Helpers Local Union 886, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
Issued, Washington, D.C., October 23, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
WE WILL NOT conduct or participate in meetings requested by the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or arrange by White House staff, with employees in a
unit represented by the National Federation of Federal Employees, or any
other labor organization, and during which terms and conditions of
employment and matters of concern to such employees are discussed, while
a question concerning representation for the unit is pending before the
Federal Labor Relations Authority.
WE WILL NOT in any like or related manner, express a preference as to
which labor organization should prevail in a representation election.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
. . . (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, Region VI, Federal Labor Relations Authority, whose address
is: 525 Griffin Street, Suite 926, Dallas, Texas 75202 and whose
telephone number is: (214) 767-4996.
Case No. 6-CA-60105
6-RO-40005
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY,
WASHINGTON, D.C.
Respondent
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Charging Party
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY,
HEADQUARTERS, U.S. ARMY FIELD ARTILLERY CENTER AND FORT SILL, FORT SILL,
OKLAHOMA
Agency
GENERAL DRIVERS, CHAUFFEURS AND HELPERS LOCAL UNION NO. 886,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Petitioner/Intervenor
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 273
Incumbent Labor Organization
Sam Horn, Esq.
Russell D. Bennett
For the Respondent and Agency
James W. Mast, Esq.
Christopher J. Ivits, Esq.
For the General Counsel, FLRA
L. N. D. Wells, Esq.
For Petitioner/Intervenor Local 866, IBT
David Dingee
For the Charging Party/Incumbent Labor Organization NFFE, and NFFE
Local 273
Before: Samuel A. Chaitovitz
Administrative Law Judge
This is a proceeding arising 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 2400 et seq.,
hereinafter called the FLRA's Rules and Regulations.
A Notice of Hearing on Objections in Case No. 6-RO-40005 was issued
on November 6, 1985 by the Director of Region VI of the FLRA stating
that a hearing would be held based on timely objections filed by
National Federation of Federal Employees, /6/ Local 273 (hereinafter
called NFFE Local 273) with respect to a runoff election conducted on
October 17, 1985.
On November 18, 1985 a charge was filed by NFFE alleging that
Department of Defense, Department of the Army, Fort Sill, had violated
the Statute. On January 31, 1986 a First Amended Charge was filed by
NFFE alleging that Department of Defense, Department of the Army,
Washington, D.C./Department of the Army, U.S. Army Field Artillery
Center, Ft. Sill, Oklahoma violated the Statute. On February 12, 1986 a
Second Amended Charge was filed by NFFE alleging that Department of
Defense, Department of the Army, Washington, D.C., hereinafter called
Army, violated the Statute.
On Feburary 19, 1986, the Director of Region 6 of the FLRA issued a
Complaint and Notice of Hearing in Case No. 6-CA-60105 alleging that
Army violated Section 7116(a)(1) of the Statute on or about October 10,
1985, by breaching the requirement of neutrality during the pendency of
a question concerning representation of its Fort Sill, Oklahoma facility
by conducting a meeting with representatives of the General Drivers,
Chauffeurs and Helpers Local Union No. 886, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, /7/ and employees of the bargaining unit which was
represented by NFFE, Local 273, during which matters concerning
conditions of employment were discussed. In the alternative, the
complaint alleged that Army violated Section 7116(a)(1) of the Statute
on or about October 10, 1985, by breaching the requirement of neutrality
during the pendency of a question concerning representation at its Fort
Sill, Oklahoma facility by conducting a meeting with representatives of
the Teamsters Local 886, Teamsters International, and employees of the
bargaining unit which was represented by NFFE, Local 273, during which
matters concerning conditions of employment were discussed when Army
either knew or should have known that there was a pending question
concerning representation and/or that the employees at the meeting were
employees of the bargaining unit represented by NFFE, Local 273. On
February 19, 1986, an order consolidating Case No. 6-RO-40005 and Case
No. 6-CA-60105 issued. Army filed a timely answer denying it had
violated the Statute.
A hearing was conducted before the undersigned in Fort Sill,
Oklahoma. All parties 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 and reply briefs have been
filed and fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and my observation of the record, I make
the following:
No. 6-RO-40005
On April 20, 1984, IBT Local 886 filed a petition in Case No.
6-RO-40005 for election in a bargaining unit /8/ which was represented
by NFFE Local 273 and consisted of:
All nonsupervisory, nonprofessional appropriated fund employees
stationed at Fort Sill, Oklahoma, for whom the Commanding General,
U.S. Army Field Artillery Center and Fort Sill, Fort Sill,
Oklahoma; or the Commander, U.S. Army Medical Department
Activity, Fort Sill; or the Commander, U.S. Army Dental Activity,
Fort Sill; or the Director, U.S. Army Communications Command
Agency, Fort Sill, or the Commissary Officer, Fort Sill
Commissary, Midwest Region, U.S. Army Troop Support Agency, Fort
Sill, has delegated appointing authority, excepting those units
already covered by exclusive recognition as excluded below,
and excluded:
All nonprofessional, nonsupervisory, GS and WG employees
assigned to the Directorate of Facilities engineering under
Exclusive to the Teamsters Local 886, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America; also
excluded are employees assigned to the U.S. Army Field Artillery
Board and employees of any other organization that are or may be
assigned to Fort Sill for which the Commanding General, U.S. Army
Field Artillery Center and Fort Sill; or the Commander, U.S. Army
Medical Department Activity, Fort Sill; or the Commander, U.S.
Army Dental Activity, Fort Sill; or the Director, U.S. Army
Communications Command Agency, Fort Sill; or the Commissary
Officer, Fort Sill Commissary, Midwest Region, U.S. Army Troop
Support Agency, Fort Sill, does not have delegated appointing
authority; management officials, professional employees,
employees engaged in Federal personnel work in other than a purely
clerical capacity, and supervisors as defined in Executive Order
1141, as amended, and all personnel whose duty station in other
than Fort Sill, Oklahoma.
On December 19, 1984, the Regional Director for the Sixth Region
issued a decision and direction of election in Case No. 6-RO-40005.
NFFE filed an application for review of the Regional Director's decision
and direction of election, which was denied by the Authority on April
15, 1985. Pursuant to the decision and direction of election, the
parties to the election, U.S. Department of Defense, Department of the
Army, Headquarters, U.S. Army Field Artillery Center, Fort Sill, NFFE
Local 273, and Teamsters Local 886, reached an agreement for consent or
directed election which was approved by the Regional Director for the
Sixth Region on May 30, 1985.
On June 20, 1985, an election was conducted in the unit described
above at the Fort Sill, Oklahoma facility. The results of the election
were inconclusive, however, as neither NFFE Local 273 nor Teamsters
Local 886 received a majority of valid votes cast in the election. NFFE
Local 273 received 493 votes; Teamsters Local 886 received 240 votes.
On September 26, 1985, the Regional Director for the Sixth Region
approved a second agreement for consent or directed election, which
provided for a runoff election between the Teamsters Local 886 and NFFE
Local 273 in Case No. 6-RO-40005. The runoff election was conducted on
October 17, 1985, at Fort Sill. IBT Local 886 received a majority of
valid votes cast in the election.
Following the election on October 22, 1985, NFFE filed objections /9/
to the election, which were consolidated with the unfair labor practice
charge in this case.
October 10, 1985 "White House" Meeting
Prior to the first election on June 20, 1985, Jackie Presser, General
President of IBT, on May 17, 1985, wrote a letter to Edward J. Rollins,
Assistant to the President for Political and Governmental Affairs,
requesting a meeting to discuss contracting out at Fort Sill. Presser's
letter is as follows:
Teamsters Local Union No. 886 presently represents the
employees of the Department of Engineering and Housing, Motor
Pool, and other auxiliary workers at Fort Sill, Oklahoma.
Teamsters are currently involved in an election campaign for 2,400
additional Ft. Sill workers, many of whom are affected by the
issue raised in this letter.
Our members, led by officers of Local 886, are fighting an
attempt to contract out several functions at Ft. Sill. Management
at Ft. Sill has dreamed up a proposed contract that will cost the
federal government untold dollars, destabilize the local economy
and decrease the level of employee efficiency. If the proposed
contract becomes a reality, it will surely wipe out the pension
plans and jobs of workers who have given years of dedicated
services.
The process of devising this phony contract violated most every
regulation that is supposed to be followed. Management did not
consult nor give Local 886 the opportunity to challenge the data
offered in support of management's claim that contracting out
would be cheaper. As you know, in a recent federal decision, an
arbitrator ordered a contract cancelled and the employees
reinstated with back pay because of violations just like those
occurring at Ft. Sill.
We believe our members deserve better. The Government will not
be any better off if this work is contract out. We urgently
request a meeting to discuss with you the union side of this
issue. I look forward to hearing from you and any assistance you
might render.
By letter dated May 28, 1985, Rollins responded, as follows:
Dear Jackie:
I am in receipt of your letter regarding Teamsters Local 886
and Ft. Sill.
Jackie, as you know, contracting out is a complicated process
that must be judged on a case by case basis. The Secretary of
Defense has made a series of recommendations to the House Armed
Services Committee on contracting out government work, and we
expect new legislation in the near future.
I would be glad to meet with you and/or the representatives of
Teamsters Local 886 to go over the particulars of the Ft. Sill
situation. We understand that your insistence that your members
be treated fairly, and I want to assure you that we have intention
of protecting the workers in the federal government. I hope that
we can resolve the situation at Ft. Sill in a way that everyone
will find acceptable and fair.
Best personal regards.
Sincerely,
Edward J. Rollins
Assistant to the President
for Political and
Governmental Affairs
During the election campaign, preceding the June 20 election,
Teamsters Local 886 distributed a handbill displaying both Presser's
letter to Rollins and Rollins' response. The handbill also contained
the following:
Teamsters have gone to the top for you and we're not done yet.
On June 20th, the biggest question is representation. And that's
why the biggest union in the free world is the only answer. On
June 20th, vote for the Public Employee Division of Local 886
Teamsters. Local 886 Headquarters, 2202 Fort Sill Blvd., Lawton,
OK 73501.
Rollins sent the following letter to NFFE President James M. Peirce:
Mr. James M. Peirce
President
National Federation of Federal Employees
2020 K Street, N.W., Suite 220
Washington, D.C. 20006
Dear Mr. Peirce:
I am in receipt of your letter regarding the union
representation election at Fort Sill involving the National
Federation of Federal Employees Local 273. I want to state
clearly that the White House takes no sides in the election at
Fort Sill or in any other Union elections. Furthermore, it should
be clear to all that the President gives fair consideration to the
legitimate concerns of all citizens and their organizations. In
this respect NFFE's access to the White House is equal to that of
any other organization.
I trust this will eliminate any confusion that may exist at
Fort Sill.
Sincerely,
Edward J. Rollins
During the runoff election campaign NFFE circulated a handbill which
reproduced this letter. There is no evidence NFFE attempted to set up
any such meeting.
When Barry Feinstein, Director of the Public Employee Trade Division
for IBT was notified of the Rollins' May 28, 1985 response, he requested
a meeting be set up as soon as possible. The meeting was arranged for
October 10, 1985. The details of the meeting were worked out by IBT,
who later called Feinstein and informed him of the date the meeting
would take place and how many people would be able to attend. IBT also
asked Feinstein to provide the names and identification of those people
who would be in attendance. Feinstein called Charlie Thompson,
President of IBT Local 886, and asked him to select the people who would
be "appropriate" to attend the October 10, 1985 meeting. Feinstein
later provided the IBT with the names and identification of those who
would be present.
Three or four months prior to the October 10, 1985 meeting, IBT
organizers approached two employees including in the NFFE bargaining
unit, Marge Duncan and Carl Stein, and informed them of a possible
meeting in Washington.
Two days prior to the October 10, 1985 meeting, Duncan and Stein, and
a third member of the NFFE bargaining unit, Kenneth Fox, were approached
by Paul Plumlee, Teamsters' Business Agent, and were invited to attend
the meeting. Fox secured leave to attend the trip through his
supervisor, Williams, and his foreman, Quoyah. He informed them he was
going to attend a meeting in Washington with the Teamsters.
A week prior to the October 10, 1985 meeting Michael Owen, Principal
Deputy Assistant Secretary for Installations and Logistics, was informed
of the "White House" meeting with the Teamsters. He was given a
memorandum dated October 7, 1985, which indicated there would be a
meeting on October 10 from 3:00-3:30 p.m. with the Director of
Governmental Affairs, the Teamsters, members of (Teamsters) Public
Employee Trade Division, and an Oklahoma Bargaining Unit. The
memorandum listed the purpose of the meeting as "To discuss contracting
out problems at OK Army Base."
Valcris Ewell, Deputy Assistant Director of the Army for Programs and
Logistics, was also sent a copy of the October 7, 1985 memorandum,
setting up the "White House" meeting with the Teamsters. Upon seeing
the memorandum, Ewell called Colonel James Schroeder, a staff member on
the Department of the Army staff in the Comptroller of the Army's
office, to find out "what the meeting was about, who, et cetera." As a
result of this request, Colonel Schroeder prepared a one-page briefing
paper for the meeting. The memo which is addressed to Ewell and signed
by James M. Schroeder, Colonel, GS, Chief, OERP Division, is as follows:
DACA-PME
MEMORANDUM FOR MR. EWELL
SUBJECT: Meeting at OEOB on Fort Sill Commercial Activities
1. Following is information available on the situation at Fort
Sill for your meeting tomorrow.
- The Teamsters Union represents the 600 DEH employees, the
only Teamster local in the Army. The National Federation of
Federal Employees (NFFE) represents the other 2500 employees on
Fort Sill.
- The Teamsters are trying to take over representation of the
2500 other employees. The election will be on 17 Oct.
- The NFFE has been advertising that the Teamsters don't care
what happens in the CA studies (listed attached). The Teamsters
will represent the winner, contract or in-house decision. The
NFFE represents only government workers.
- Jackie Presser will reportedly be present to claim that the
union is working to get a good review. But they have problems
with the CA program.
2. Your meeting is a show the flag meeting to impress Fort
Sill's workers that the Teamsters can do more for them than the
NFFE.
JAMES M. SCHROEDER
Colonel, GS
Chief, OERP Division
The attachment to the memo reads as follows:
NOTE: The management study has been completed for all but the last
entry.
While Ewell did not remember seeing the Schroeder memo, Schroeder did
provide the "substance" of his memo to Ewell orally. /10/
On October 10, 1985, Andrew Card, Special Assistant to the U.S.
President for Intergovernmental Affairs, attended a regular political
and intergovernmental affairs meeting in Mitch Daniel's office. Mitch
Daniels was the Assistant to the U.S. President for Political and
Intergovernmental Affairs. /11/
After the meeting, Card was approached by C. C. Cole McInturff,
Special Assistant to the U.S. President for Political and
Intergovernmental Affairs, and was asked to attend a meeting which
neither she nor Daniels could attend. McInturff told Card that the
Department of the Army was aware of the meeting and the issues that
would be raised. She also told Card the Teamsters and officials from
the Department of the Army would be present and the subject of the
meeting would be contracting out. Card, agreed to attend.
On October 10, 1985, five employees from Fort Sill's two bargaining
units left Lawton, Oklahoma for the "White House" meeting in Washington,
D.C. Three employees who were in the NFFE bargaining unit went to the
meeting; they were: Kenneth Fox, Wire Communications Cable Splicer;
USAISC; Marge Duncan, Supply Clerk; and Carl Stein, Equipment
Repairer, Directorate of Logistics (DOL), which was formerly known as
the Director of Industrial Operations (DIO). Two employees in the
Teamsters bargaining unit who also attended were Aubrey Parks, Welder,
DEH, and Charlie Thompson, President of the Teamsters Local 886. Both
Fox and Parks brought with them papers which they had written concerning
contracting out.
The five employees from Fort Sill arrived in Washington, D.C. about
1:00 p.m. on October 10, 1985, and immediately proceeded to the IBT
Headquarters. At the Teamsters' Headquarters, the employees were met by
Feinstein, Joe McDermott, Feinstein's assistant, and John Ring, a
Teamsters representative from the Public Affairs Office. The five
employees and three Teamsters representatives met for a 20-45 minute
briefing. During the briefing, the employees generally discussed the
"White House" meeting.
Following this briefing, employees Fox, Duncan, Stein, Thompson and
Parks, and Teamsters representatives Feinstein, McDermott, and Ring went
to the Old Executive Building. Upon arriving at the Old Executive
Building, the employees were checked in through Security. The Security
Office checked for their names on a roster and checked on the employees'
identity through a computer. After Security checked the employees'
names and identity, the employees and Teamster representatives were
taken to an unused office in the Old Executive Building. There they
were met by Card and Owen, who introduced themselves to the employees
and Teamsters representatives. /12/
About 10-15 minutes after the meeting started, Ewell arrived. /13/
Upon Ewell's arrival, Ewell introduced himself to the group and Fox
introduced himself as "Kenneth Fox, I work at USAISC, Fort Sill,
Oklahoma"; Duncan introduced herself as "Marge Duncan, Supply Clerk,
Fort Sill, Oklahoma"; and Stein introduced himself as "Carl Stein,
Equipment Repairer, Fort Sill, Oklahoma."
The general subject of the meeting was contracting out and its
implications. Fox spoke about the fringe benefits factor and his belief
that fringe benefits do not exist when Federal wages are 18 and 36
percent below the private sector. Ewell disagreed with this statement
and Feinstein supported Fox's assertion. Fox also complained about
contracting out in his own particular directorate, USAISC. /14/ Fox
complained that the contract date for his organization had been
repeatedly changed.
There was discussion concerning contracting out and CA studies in
DOL. /15/ Stein spoke about contracting out and the lack of
communications with respect to all the procedures of the Office of
Management and Budget Circular A-76. Stein discussed how contracting
out affected employee morale. Stein and Ewell discussed contracting out
in DIO. Ewell stated that people seemed to be misinformed, he was going
to find out why, and if it took him coming to Fort Sill to talk to the
people, he would do it. Duncan, also discussed contracting out. Parks
brought a paper to the meeting, which he presented to Ewell. Parks'
discussion centered around the amount of money spent on cost surveys,
contracting out, mobilization, and the fact Fort Sill was a model
institution.
With regard to communications issues, Ewell was asked if employees at
Fort Sill had the right to make input to the commercial activities
process. Ewell indicated they did and promised that "if they could not
get anybody else to communicate with them, I would personally come to
Fort Sill and communicate with them and let them know what their rights
and responsibilities were under the process."
Parks mentioned "the type of contracting, the A-76, some of the
things that he felt were unfair and wanting knowledge about that
subject." Fox spoke about cost plus contracting and things in the OMB
Circular A-76 that he felt were ridiculous.
Ewell did most of the speaking at the meeting. He went into cost
plus contracts and addressed the various concerns of the employees.
Ewell stated that he would check on people's concerns out there at Fort
Sill, and he would get with the Commanding General, if necessary, or we
would come out to Fort Sill to find out what was going on. Also Stein
indicated people were under the impression they were going "out the
gate." Ewell replied "nobody would go out the gate." There was also
discussion that contracting out affected employee morale.
After the meeting, while the employees were taking pictures,
Feinstein made a comment that NFFE, who represented Fort Sill employees
for years, had not done in that several years period of time what the
Teamsters had done in a short period of time in attempting to meet with
officials of the government. Feinstein pointed out that the workers at
Fort Sill certainly would understand the difference between a union that
is actively engaged in supporting their goals and aspirations and a
union that had represented them for years and hadn't done anything
affecting the most serious problem that existed for them.
Upon their return to Fort Sill, the NFFE bargaining unit employees
who had attended the October 10, 1985 meeting, Fox, Duncan, and Stein,
actively began campaigning for the Teamsters. On October 11, 1985,
Duncan attended a pizza-dinner-at-lunch party where she met with a group
of employees. The lunch was held in the employee break room in building
2243. Management had prior notice of the lunch. About 35-50 employees
were in attendance. These employees were in the NFFE bargaining unit.
Aside from Duncan, several IBT organizers were present. During this
meeting, Duncan told the NFFE bargaining unit employees that she had
been to a meeting in Washington and met with some high ranking
government officials, namely, an Assistant to the President and the
Secretary of the Army. Duncan told the employees that the individuals
in Washington had said they had never heard of NFFE and didn't know who
NFFE was. Further, Duncan said that the individuals had stated that
they were not even aware that NFFE did any lobbying in Washington.
Duncan also informed the employees that the Washington meeting concerned
contracting out, wage surveys, and DIO.
After Fox's return to Fort Sill from the October 10, 1985 "White
House" meeting, Fox met with a number of his co-workers employed in
USAISC. Fox told them that he had gone with the Teamsters to a meeting
at the White House where they had met with the Assistant Secretary and a
Special Assistant to the President. He told the employees he had voiced
his concerns about contracting out and said that the Army's
representative, Mr. Ewell, had stated that he would come to Fort Sill if
necessary to assure that Fort Sill was following OMB Circular A-76
procedures.
Two days after the October 10, 1985 meeting, Stein accompanied by
Duncan, addressed a group of Fort Sill employees at "open general
meeting" sponsored by the Teamsters. Ten to twenty people from both the
Teamsters Local and Fort Sill attended. Both Duncan and Stein spoke in
front of the employees and told them of the "White House" meeting. They
informed the employees they had met with Ewell and Owen. They explained
who Ewell was and his position with the Army told them informed and they
said that the people at Fort Sill weren't informed, and that Ewell said
he would come down personally to inform the people if it was necessary.
After informing the employees about the meeting, Stein made a special
point of thanking Teamsters representatives Plumlee and Thompson for
allowing him the privilege to attend.
Following the meeting, the following memorandum was prepared by the
Teamsters and distributed at Fort Sill prior to the October 17, 1985
election.
When we talk for you, the White House listens.
The White House listened. The Public Employee Division of
Local 866 Teamsters wanted a meeting at the White House with
Department of the Army officials to frankly talk about contracting
out.
We got the meeting. And who did we meet with at the White
House for nearly two hours? We met with Andrew H. Card, Jr.,
Special Assistant to the President; Michael W. Owen, Principal
Deputy Assistant Secretary of the Army; and Valcris O. Ewell,
Deputy Assistant Secretary of the Army, the man who decides who
and what gets contracted out. And what did Ewell say to us?
Ewell said: "There is no reason why any worker should be shown
the gates of Fort Sill." And that's not all Ewell said to Local
886 Secretary-Treasurer, Charlie Thompson; Wire Communications
Cable Splicer, Ken Fox; Electronic Integrated Systems Mechanic,
Carl Stein; Supply Clerk, Marge Duncan and Welder, Aubrey Parks.
Ewell said that he would discuss the cost factors of
contracting out with you. And we agreed. Ewell said that Fort
Sill had failed to follow procedures ordered by the Department of
the Army. Ewell said they were supposed to talk with you. They
didn't . . . and NFFE couldn't get them to. But Ewell, after
talking to the Teamsters, said he will listen to you and that we
don't have to write. We just have to call. This is the first
time Fort Sill workers have been listened to.
On October 17th, keep them listening to you in Washington and
at Fort Sill. Vote Teamsters. The Public Employee Division of
Local 886 Teamsters.
LOCAL 886 HEADQUARTERS -- 2202 FORT SILL BLVD. - LAWTON, OK
Owen and Ewell became aware of this flyer prior to the election and
took no action.
A series of documents from the Army's files establish that prior to
the October 10, 1985 meeting the Army was aware of the pending
representation election and of the contracting out that was taking place
at Fort Sill.
On September 27, 1985, at 3:15 p.m., Commissary Officer Boggs
allowed Teamster representative Marge Duncan to enter the
Commissary work areas to campaign among the employees on work
time, thus affording the Teamsters unfair advantage.
There was no credible evidence supporting this objection.
On October 9, 1985, at approximately 9:30 a.m., Mrs. Hood, /17/
Acting Supervisor of Administrative Management Office, permitted
Teamster representatives to talk to three employees on work time
in their respective work areas.
Fort Sill, NFFE and IBT Local 886 agreed that electioneering,
solicitation, and campaigning would take place during break times.
Heine was working at her desk at 9:30 a.m. on October 9, 1985 and no
supervisors were in the work area. There were no set break periods,
rather employees in this work area take their breaks at the discretion
of the individual employee. There were no supervisors in the area. At
9:30 a.m. on October 9, 1985 two IBT supporters, one being Carl Stein,
inquired from Marshall if there were particular break times. Marshall
advised Stein that there were no set break times and that employees took
their breaks when they wished. They asked Marshall if it was okay to
leave IBT literature at the empty desks and Marshall consented. The IBT
supporters proceeded to distribute the literature at the empty desks.
Stein offered Heine a piece IBT literature. Heine stated that she was
for the other union and Stein stated he would just leave it and walked
away. This encounter took about 1/2 minute. The IBT supporters talked
to two or three employees and remained in this area 5 to 10 minutes.
Then they left.
On October 9, 1985, at approximately 11:15 a.m., Teamster
representatives (one identified as Ms. Gibble and an unidentified
food service employee), were allowed to talk to employees of the
Surgical Clinic at the Reynolds Army Community Hospital reception
desk for approximately 30 minutes.
On October 9, 1985 employee Wanda Selig observed three IBT
supporters, including two employees, /18/ talking to the receptionist of
the Surgical Clinic at Reynolds Army Hospital at about 11:30 a.m. The
IBT supporters were at the receptionist's desk because the receptionist
Archie Davis had asked them telephonically, to come to his station at
lunch hour so he could speak to them. The three IBT supporters asked
and received permission from the Sergeant of the Clinic to speak to
Davis. Davis invited the three IBT supporters to a disco dance he was
going to give at a hotel in the town. /19/ Davis wanted as many people
as possible to come and told the three to invite others, including Wanda
Selig. A Fort Sill representative asked the people at the
receptionist's desk what they were talking about. When told it was
about the disco party, the official left. The three IBT supporters went
to Selig's supervisor, asked Selig to go to the brown bag area to talk.
When they arrived at that brown bag area, the three IBT supporters told
Selig what they had talked to Davis about and invited her to go to the
disco dance also.
On October 17, 1985, the polling area within Building 4705
(polling site 7) was moved during the election. The ad-hoc
polling area was inappropriate to the conduct of the election.
Non-voters circulated throughout the area during the voting. In
addition, Teamster supporters wearing campaign paraphenalia were
allowed to campaign in the polling area and were allowed to escort
voters to the observer desk.
A voting site was set up in the open area of Building 4705 (the
Library building). After about one and one-half hours /20/ the polling
place was moved, at the request of Fort Sill, into the library area of
Building 4705 to permit construction work to be performed in the open
area.
The polling place was set up in the library, near the library
entrance, relatively near where it had originally been set up. The
record establishes that the new polling place was set up so that there
was a table for the election observers; the voting booth was near the
table, but the secrecy of the voting booth was maintained and secure;
and the ballot box was in the plain view of the observers and the
secrecy of the ballot process was intact. There were some number of
employees using the library during the balloting period, but there was
no showing this interfered with the voting process or compromised the
secrecy of the ballot. The record does not establish that any employee
was discouraged from voting or that circumstances were such as to
discourage voting.
One person wearing Teamster insignia escorted a deaf, and apparently
mute, employee to the observers' table. The Teamster supporter then
promptly left.
Three or four employees wearing Teamsters' insignias /21/ were in the
area of the observers table making noise. NFFE Observer Selig
complained to the FLRA agent concerning the presence of the three or
four employees wearing the Teamsters insignia in the voting area. The
FLRA agent approached those employees and were advised they were there
to install a telephone in a nearby office. They then left when asked by
the FLRA Agent. They had been in the polling area a total of about 10
minutes.
There were representatives of both unions outside the building, in a
picnic area more than 200 feet from the voting area. Some such
employees wearing IBT insignia took some pictures.
On or about October 10, 1985, two representatives of the
employer, Michael Owen, Principal Deputy Assistant of the Army and
Valcris Ewell, Deputy Assistant Secretary of the Army, met with
Charlie Thompson, Secretary-Treasurer of the Teamsters Local 886,
(the petitioner), and four Fort Sill employees (three of whom are
members of a bargaining unit which is represented by NFFE Local
273) and discussed matters affecting working conditions at Fort
Sill.
The above-referenced meeting was the subject of a Teamster
campaign flyer entitled "When we talk for you, the White House
listens," which was distributed less than twenty-four hours prior
to the opening of the polls on October 17, 1985.
The facts relating to this object are set forth in the initial
findings of fact dealing with the alleged unfair labor practice.
On October 9 and 16, 1985, Teamster representatives Mr.
Peterson and Charley Moore distributed literature, caps and
tee-shirts in Building 2243 Supply Branch, Defense Industrial
Organization during duty hours.
On October 17, 1985, Teamster Representatives Mr. Peterson and
Marge Duncan were in Building 2243, Supply Branch, Defense
Industrial Organization distributing literature and talking to
employees during duty time.
On October 9 and 16, 1985 Teamster supporters remained in Building
2243 after the morning break time talking to employees. /22/ The record
does not establish what was said. The Teamster supporters remained in
the work area about 10 minutes after morning break time ended on each
day. /23/
On October 17, 1985 two Teamster supporters were in Building 2243 a
little after 9:00 a.m. urging employees to go vote and distributing
Teamster literature, T-shirts, hats, etc. Again employee Hoover went to
report this to her supervisor and, when Hoover returned, the two IBT
supporters were leaving.
Teamster representatives were given access to work areas
through-out Reynolds Army Community after offices were locked. On
or about September 23, 1985, Teamster representatives were allowed
to "desk drop" literature after working hours. On September 24,
1985, at the beginning of the work day, Teamster literature was
discovered on employees' desks.
On September 24, 1985, when the first employee arrived in the morning
and opened Room 7A of the Reynolds Hospital, she found two pieces of
literature on each of the desks of the five employees who work in Room
7A. The record does not establish who distributed the literature or how
it got on the employee desks.
The General Counsel for the FLRA alleges that Army violated Section
7116(a)(1) /24/ of the Statute by breaching the requirement of
neutrality during the pendency of a question concerning representation
at its Fort Sill facility by conducting a meeting on October 10, 1985 in
the Old Executive Building with representatives of the Teamsters Local
886, IBT, and employees in the Fort Sill bargaining unit which was
represented by NFFE Local 273, during which matters concerning
conditions of employment were discussed and alternatively that Army
violated Section 7116(a)(1) of the Statute by engaging in the above
described conduct when Army either know or should have known that there
was a pending question concerning representation and/or that the
employees at the meeting were employees in the Fort Sill bargaining unit
represented by NFFE Local 273. /25/
Section 7102 of the Statute provides:
"Each employee shall have the right to form, join or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. . . ."
The FLRA held in Department of the Air Force, Air Force Plant
Representative Office, Detachment 27, Forth Worth, Texas, 5 FLRA 492
(1981), herein called the AFPRO Case, "that management's breach of
neutrality during an election campaign . . . interfere with the . . .
rights of employees under the Statute and therefore violates Section
7116(a)(1) under the Statute. . . ." AFPRO Case, Supra at 500. The
AFPRO Case, supra, dealt of a representation petition. A newsletter was
published by the activity about two days before the scheduled election.
The newsletter was signed by the Activity's chief management official
and was posted on bulletin boards and distributed to employees. The
FLRA concluded that the contents of the newsletter could be interpreted
by unit employees as implying that they did not need and would not
benefit from union representation and would be unable to rid themselves
of the union for years to come if they voted in favor of the union in
the forthcoming election. After rejecting the argument that this was
merely an exercise of free speech protected by Section 7116(e) of the
Statute the FLRA stated that employees should be free to choose or
reject union representation while management maintains a posture of
neutrality and that the breach of neutrality during an election campaign
interfered with employees' protected rights under Section 7102 of the
Statute to "form, join or assist any labor organization or to refrain
from any such activity" and therefore violated Section 7116(a)(1) of the
Statute. In reaching this conclusion the FLRA relied upon and cited
cases that arose under Executive Order 11491, as amended. /26/
The FLRA has held that in evaluating conduct to determine whether it
interferes with, restrains or coerces employees in the exercise of their
protected organizational rights an objective standard should be used.
That is a determination must be made whether the conduct would
reasonably tend to interfere with, restrain or coerce employees. See,
Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). Thus it
was held that neither the subjective perceptions of the employees nor
the intent of the employer was the standard for judging conduct, but
rather the test is whether, under the circumstances of the case, the
employer's conduct or statements may reasonably tend to interfere with
the exercise of employees' protected rights.
I conclude that the October 10, 1985 meeting in the Old Executive
Office Building was conduct by the Army which, objectively would
reasonably be interpreted by employees as an expression, by the Army,
that it favored the Teamsters in the pending representation election.
Thus Army violated the principle of neutrality and thereby violated
Section 7116(a)(1) of the Statute. This interpretation of the
impression to be drawn from the meeting was clearly expressed in the
Schroeder memo.
The October 10, 1985 meeting was held some seven days before a
run-off election was to be held. The Teamsters were challenging the
status of the incumbent union, NFFE Local 273, the collective bargaining
representative for the subject unit of employees. During the pendency
of the question concerning representation (QCR) the incumbent union,
NFFE Local 273, was still the collective bargaining representative of
the employees and remains so until the QCR is resolved. See Department
of Justice, Immigration and Naturalization Service, 9 FLRA 253 (1982).
Thus, although during the pendency of a QCR an agency must remain
impartial, if matters arise that necessitate bargaining and
negotiations, the agency must meet and bargain with the incumbent union.
/27/ Under no circumstances when such a QCR is in existence would it be
appropriate for the agency to bargain and negotiate, or appear to
bargain and negotiate, with the challenging union. Such conduct, it is
concluded, would reasonably send a message to the employees that the
agency is favoring the challenging union. To the extent, during a QCR,
the agency is required to and does bargain over conditions of employment
with the incumbent union, the agency is merely fulfilling its statutory
obligation. However, when it meets and negotiates, or appears to do so,
concerning conditions of employment with the challenging union the
agency appears to be expressing a preference with respect to whom it
wished to prevail in the QCR. Such conduct or expression of preference
is the very violation of the principal of neutrality which the FLRA
recognized as constituting a violation of Section 7116(a)(1) of the
Statute.
In the subject case the meeting of October 10, 1985 constituted a
clear expression by the Army to unit employees that the Teamsters would
be a more effective representative than NFFE and that the Army preferred
the Teamsters be chosen as the collective bargaining representative by
the employees in the October 17 election. Thus top officials of the
Army /28/ met with Teamster officials and Fort Sill employees, three of
whom were members of the NFFE bargaining unit. /29/ During the meeting
the participants primarily discussed sub-contracting at Fort Sill. With
respect to the subcontracting they discussed whether and how Fort Sill
was to comply with the OMB subcontracting regulations (OMB Circular
A-76), the poor communications between Fort Sill management and
employees, how employees should participate in the contracting out
decision making process, the effect of subcontracting out on the morale
of the employees and whether any employees would be layed off or RIFed
/30/ because of subcontracting out. These matters were raised and
discussed, among others, by the employees who were in the NFFE
collective bargaining unit and they were discussed with respect to how
they affected and concerned the activity organizations within the NFFE
collective bargaining unit. /31/ Finally, Ewell, the Army's spokesman
agreed, (1) that compliance with OMB Circular A-76 and Army regulations
would be enforced at Fort Sill, (2) that Fort Sill would better
communicate with employees concerning contracting out, (3) that employee
participation in the contracting out process would be assured and (4)
that no one would go out the gate. Finally Ewell agreed that, if
necessary, he would come to Fort Sill to make sure all of this was
complied with. All of this would reasonably appear to employees as to
constitute bargaining /32/ by the Army with the Teamsters, on behalf of
employees in the NFFE bargaining unit, concerning contracting out at
Fort Sill and the impact and implementation of such contracting out.
This appearance of bargaining to employees is especially true when the
formality of the meeting, including the rank or level of the Army
negotiators and the location of the meeting, is taken into
consideration.
The argument that it could not have been negotiations because
contracting out can not be negotiated /33/ since it is a management
right, is rejected. Thus although contracting out may constitute a
management right, Army representatives could and did, engage in
bargaining about it, even if at some later point Army could unilaterally
have withdrawn from any agreement. In fact Army expressed no such
reservations and limitations to the employees present and did appear to
be bargaining. In fact to engage in such bargaining about a management
right with the Teamsters appears clearly to express the Army's
preference for the Teamsters. Further many aspects of contracting out
and its impact and implementation have been held by the FLRA to be
negotiable. /34/
The most persuasive argument for the proposition that the October 10
meeting did not violate the neutrality requirement is that in the July
1, 1985 letter to NFFE the White House indicated it would meet with NFFE
to hear its concerns. Thus it appears the invitations are equal and
neutrality was maintained. Surely, it could be argued the Teamsters did
not destroy this neutrality, by utilizing this management offer, which
was made to both sides. As appealing as this argument is, at first
blush, it must be rejected. The instant situation, as described above,
was one in which there was an incumbent union. In such a situation
management was not permitted or privileged to bargain with the
contesting union until the incumbent lost its position, and it is an
important distinction, that the subject case does not involve two "out"
unions competing to represent unrepresented employees. Rather this is a
situation where the employees were represented by NFFE, and IBT was
trying to oust NFFE. Until such time as the QCR was determined, NFFE
continued to represent the employees in the disputed unit. Accordingly
Army could not choose to meet and bargain with both unions. Rather, to
the extent there was to be any bargaining, it necessarily had to be with
the incumbent, NFFE. Thus by meeting and appearing to bargain with the
Teamsters over the conditions of employment in the NFFE collective
bargaining unit, Army breached the requirement of neutrality, and this
was not cured by the outstanding offer to meet with NFFE. Further even
if it were two "out" unions, a meeting with employees by the Agency
under the auspices of one of the unions, would constitute a clear
statement of preference by the agency, /35/ even if there was an
invitation to the other union to sponsor such a meeting.
In the subject case Army held only a meeting sponsored by the
Teamsters to discuss working conditions in the NFFE unit, which was the
subject of a QCR. Army held a meeting sponsored by only one of the
rival labor organizations and thus, in the eyes of the employees this
was a clear expression that Army preferred that the Teamsters prevail in
the QCR.
There are some contentions that the Army did not know about the
election, the parties involved or that contracting out was an issue at
Fort Sill. First in deciding whether conduct violates Section
7116(a)(1) of the Statute by meeting the objective test, knowledge is
irrelevant. Once management engages in conduct which reasonably would
interfere with employee rights, the violation occurs. Management need
not have intended it, nor know it would have that affect. We are here
trying to protect the employees from interference in the exercise of
their rights. There is no logical reason that management need intend
such interference or even know all the facts. However, to the extent
that knowledge is necessary I conclude and find that Army knew about the
election, the parties involved and that contracting out was an issue.
From the very beginning, when the meeting was set up, it was known and
communicated that it was about Fort Sill and a contracting out problem.
Schroeder's memo made it quite clear that the Army knew about the
election, who was involved and the nature of the QCR. Although all of
this information might not have been communicated to Ewell, it must be
imputed to him and his colleagues. To hold otherwise would make it
virtually impossible to establish precisely which management officials
actually had which information.
Army contends that Ewell was merely explaining the contracting out
procedures to employees, in accordance with Presidential and
Governmental policy. This contention is without merit. The situation
was not merely a meeting of employees in which the Army explained the
contracting out procedures; rather, it was a meeting sponsored by the
Teamsters during which the Army engaged in a give and take with
employees in the NFFE unit concerning the contracting out at Fort Sill
and the procedures to be followed to meet, to some extent, the
employees' concerns and complaints. It was, in the circumstances of a
QCR, an expression by the Army that the Teamsters would be more
effective representative for the employees than NFFE; in effect an
expression of preference for the Teamsters. A result clearly foreseen
in the Schroeder memo to Ewell.
Further because the meeting involved employees in the NFFE bargaining
unit it was foreseeable that the substance of the meeting would be, and
was, communicated to the employees in the NFFE bargaining unit.
In light of all of the foregoing, therefore, it is concluded that by
holding the October 10, 1985 meeting, Army violated the requirement of
neutrality and thereby violated section 7116(a)(1) of the Statute.
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ANNOUNCED SCHEDULED
FUNCTION CIV MIL COMPLETION DATE
INDUSTRIAL OPERATIONS 583 73 860131
FIRING TABLE MFG PLANT 7 860831
AUDIOVISUAL SERVICES 34 13 870228
FACILITY ENGINEER 513 6 860531
INSTALLATION SERVICES 28 860930