28 FLRA NO. 127
Dep't of the Navy and Pensacola Commissary Store Region, Pensacola,
Fla., and AFGE, Local 1960, Case No. 4-CA-70124 (Decided September 15,
1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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.
Granting the General Counsel's motion for summary judgment, the judge
held that the respondent activity only 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 judge ruled that all
arguments raised by the activity against the disclosure of the
information were disposed of by Authority precedent.
Case No. 4-CA-70124
DEPARTMENT OF THE NAVY AND PENSACOLA COMMISSARY STORE REGION,
PENSACOLA, FLORIDA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1960, AFL-CIO
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that the Respondent Pensacola
Commissary Store Region, Pensacola, Florida (the Activity) 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 as to the Respondent Activity and
recommended that the Activity be ordered to take appropriate remedial
action. The Judge also found that the Respondent Department of the Navy
had not engaged in the unfair labor practices alleged in the complaint.
The Respondent Activity 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 made at
the hearing and find that no prejudicial error was committed. The
rulings are affirmed. Upon consideration of the Judge's decision, the
exceptions and the entire record, we adopt the Judge's findings,
conclusions and recommended Order. For the reasons stated by the Judge,
we reject the Respondent Activity's arguments that the release of home
addresses of employees is prohibited by the Privacy Act, that the
information is not relevant or necessary for the Union to carry out its
representational duties, and that the information need not be supplied
because there are alternative means available to the Union to
communicate with unit employees. See Farmers Home Administration
Finance Office, St. Louis, Missouri, 23 FLRA No. 101 (1986), petition
for review filed sub nom. U.S. Department of Agriculture and Farmers
Home Administration Finance Office, St. Louis, Missouri, No. 86-2579
(8th Cir. Dec. 23, 1986).
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute:
A. The Pensacola Commissary Store Region, Pensacola, Florida shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 1960, AFL-CIO, the exclusive representative
of a bargaining unit of its employees, the names and home addresses of
all employees in the unit.
(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 American Federation of Government Employees, Local
1960, AFL-CIO, the exclusive representative of a bargaining unit of its
employees, the names and home addresses of all employees in the unit.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, Local
1960, AFL-CIO are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Director, Pensacola Commissary
Store Region, Pensacola, Florida, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and 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 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.
B. Those portions of the complaint which allege a violation of the
Statute by the Department of the Navy are dismissed.
Issued, Washington, D.C., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, Local 1960, AFL-CIO, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the unit.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 1960, AFL-CIO, the exclusive representative of a bargaining unit
of our employees, the names and home addresses of all employees in the
unit.
(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-70124
DEPARTMENT OF THE NAVY AND PENSACOLA COMMISSARY STORE REGION,
PENSACOLA, FLORIDA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1960, AFL-CIO
Charging Party
Mr. Robert J. Gilson
For the Respondents
Philip T. Roberts, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region IV, Federal Labor Relations Authority,
Atlanta, Georgia, against the Department of the Navy and Pensacola
Commissary Store Region, Pensacola, Florida (Respondents), based on a
charge filed by the American Federation of Government Employees, Local
1690, AFL-CIO, (Charging Party or Union). The complaint alleged, in
substance, that Respondents violated sections 7116(a)(1), (5) and (8) of
the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section
7101 et seq. (the Statute), by refusing to furnish the Union upon
request with the home addresses of all bargaining unit employees
represented by the Union pursuant to section 7114(b)(4) of the Statute.
/*/
Respondents' answer, as amended, admitted the jurisdictional
allegations as to the Respondents, the Union, and the charge; that, on
or about November 10, 1986, the Union, the exclusive representative of a
unit of Respondent Pensacola Commissary Store employees, requested the
home addresses of employees in the Union bargaining unit; and that, on
or about November 14, 1986 and December 10, 1986, agents of Respondents
denied the Union's request for the information. Respondents' answer, as
amended, also admitted that the home addresses are normally maintained
by the Respondent Pensacola Commissary Store Region in the regular
course of business; are reasonably available; and do not constitute
guidance, advice, counsel or training provided for management officials
or supervisors relating to collective bargaining. Respondents' answer,
as amended, also averred that while Agency regulations and guidance
oppose release of the requested information, the decision to release or
not release is a local one to be made by Respondent Pensacola Commissary
Store Region. The General Counsel did not take issue with this
assertion. Accordingly, such matters are found to be established.
Respondents' answer, as amended, denied that the information
requested is necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
Respondent also denied any violation of the Statute.
On or about May 15, 1987, Counsel for the General Counsel moved for
summary judgment and submitted a supporting brief. The Regional
Director transferred the motion to the Chief Administrative Law Judge,
pursuant to section 2423.22(b)(1) of the Regulations, and it was
assigned to the undersigned for disposition pursuant to section
2423.19(k) and section 2423.22(b)(3) of the Regulations. Respondent
served its opposition on June 2, 1987.
Positions of the Parties
Respondents request a hearing in order to introduce evidence on the
sufficiency of the means available to the Union to communicate with
employees in the unit. Respondents also contend that the basis for the
Union's request does not meet the requirement under the Statute that the
information must be "necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of
collective bargaining." Respondents assert that 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 the Farmers Home Administration
Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779 (8th Cir. Dec.
23, 1986) is in error as the Authority failed to give greater
consideration to the potential abuses inherent in the discloser of
employees' home addresses. Respondents contend that such disclosure
constitutes a clearly unwarranted invasion of employees' privacy and
does not properly fall under exception (b)(3) of the Privacy Act, 5
U.S.C. Section 552 (b)(3), as a "routine use."
The General Counsel contends that in light of the Authority's
decision in FHAFO there are no disputed issues of material fact, and it
is entitled to summary judgment as the Respondents' failure and refusal
to provide the employees' home addresses to the Union in this case
constitutes a refusal to comply with section 7114(b)(4) and a violation
of section 7116(a)(1), (5) and (8) of the Statute.
Discussion and Conclusions
In FHAFO the Authority held that "the statutory requirement
concerning sufficiency of a request under section 7114(b)(4) is
satisfied for requests such as that involved here (for names and home
addresses) when a general written request for the information is made.
A precise explication of the reasons for the request involved here is
not necessary." The Authority also emphasized that names and home
addresses of bargaining unit employees should be provided whether or not
alternative means of communication are available. The Authority stated,
"We will not review the adequacy of alternative methods of communication
on a case-by-case bases." In view of the Authority's FHAFO decision it
is concluded that facts as to the purpose of the request and whether or
not alternative means of communication are available between unit
employees and their exclusive representative are not material.
There being no dispute as to any material fact, it is concluded that
the General Counsel is entitled to summary judgment as a matter of law
under the Authority's decision in FHAFO. There the Authority gave full
consideration to the many issues raised by requiring disclosure of names
and home addresses of federal employees. The Authority analyzed the
interplay of the Statute, the Privacy Act, and the Freedom of
Information Act, and concluded that, "the release of names and home
addresses to the Union is not prohibited by law, is necessary for the
Union to fulfill its duties under the Statute, and meets the other
requirements of section 7114(b)(4)."
Inasmuch as the Union's request meets all of the requirements
established by section 7114(b)(4), Respondent Pensacola Commissary Store
Region, having the discretion to release the home addresses to the Union
and failing to do so, violated section 7116(a)(1), (5), and (8) of the
Statute. Since there is no evidence that the Department of the Navy
unconditionally directed its subordinate activity to refuse the data,
Respondent Department of the Navy did not violate the Statute, and it
will be recommended that the complaint, as to it, be dismissed.
Based on the foregoing, the General Counsel's motion for summary
judgment is granted. It is recommended that the Authority issue the
following Order:
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Pensacola Commissary Store Region, Pensacola, Florida
shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American
Federation of Government Employees, Local 1960, AFL-CIO, the
exclusive representative of a bargaining 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 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 AFGE, Local 1960, the exclusive representative of a
bargaining unit of its employees, the names and home addresses of
all employees in the bargaining unit it represents.
(b) Post at its facilities where said bargaining unit employees
are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by a senior official and shall
be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(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.
IT IS FURTHER ORDERED that those portions of the complaint alleging a
violation of the Statute by the Department of the Navy are dismissed.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: June 19, 1987
Washington, D.C.
FOOTNOTES
(*) Section 7114(b)(4) provides:
(b) the duty of an agency and an exclusive representative to
negotiate in good faith . . . 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;
(B) which is reasonably available and necessary for full and
proper discussion understanding, and negotiation of subjects
within the scope of collective bargaining;
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 1960, AFL-CIO, the exclusive
representative of a bargaining 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 the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish AFGE, Local 1960, the exclusive representative of a
bargaining 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.
28 FLRA NO. 126
Ass'n of Civilian Technicians, Columbine Council, and the Adjutant
General, Colorado, Case No. 0-NG-1408 (Decided September 15, 1987)
STATUTE
7105(a)(2)(E)
7106(a); (a)(2)(A) & (B)
SUBJECT MATTER INDEX ENTRIES
ASSIGN WORK, RESERVED MGM'T RIGHT
PERFORMANCE APPRAISAL SYSTEM
COMMITTEES OR SIMILAR ORGANIZATIONAL UNITS, UNION PARTICIPATION
PERFORMANCE RATING, REVIEW OR APPEALS BOARD
DIRECT EMPLOYEES, RESERVED MGM'T RIGHT
PERFORMANCE APPRAISAL SYSTEM
MANAGEMENT RIGHTS: GENERALLY
DELIBERATIVE PROCESS LEADING TO EXERCISE OF RESERVED MGM'T RTS
ASSIGNMENT OF WORK
NATIONAL GUARD TECHNICIANS
ASSIGNMENT OF WORK
PERFORMANCE APPRAISAL SYSTEM
APPEALS OF EMPLOYEE EVALUATIONS (NON-GRIEVANCE/ARBITRATION)
AGENCY APPEALS BOARD
UNION MEMBERSHIP
WAIVER OF RIGHTS
RESERVED MANAGEMENT RIGHTS
AGENCY REGULATIONS
DIGEST NOTES
The Authority considered one proposal in this negotiability appeal.
The proposal, ruled nonnegotiable, would have entitled the union to
appoint one member to a performance-appraisal review board. Citing
precedent, the Authority ruled that the proposal violated the section
7106(a)(2)(A) and (B) rights of the agency to direct employees and to
assign work by appraising the performance of its employees. The
Authority rejected the union's argument for the negotiability of the
proposal on the grounds that an agency regulation provided specifically
that union membership on the board was negotiable. The Authority cited
a court precedent that an agency cannot make negotiable matters excluded
from negotiation by section 7106(a).
Case No. 0-NG-1408
ASSOCIATION OF CIVILIAN TECHNICIANS, COLUMBINE COUNCIL
Union
and
THE ADJUTANT GENERAL, COLORADO
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(B) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeal concerns
the negotiability of a single Union proposal, which we find is outside
the duty to bargain because it conflicts with the Agency's rights to
direct employees and assign work.
II. Union Proposal
A Title 32 employee who is not satisfied with the appraisal may
appeal to the State Impartial Review Board appointed by the
Adjutant General. On this board, which shall consist of three (3)
members, the Union shall be allowed one (1) member. This will
only be allowed when the appeal concerns a bargaining unit member.
This member shall be selected by the Union, approved and
appointed along with the other two (2) members by the Adjutant
General, and shall have the same responsibilities as the other
members. . . . The union official that is sitting on the Board
shall not be the employee's representative. (Only the underscored
language is in dispute.)
III. Positions of the Parties
The Agency argues that the underscored language of this proposal,
which requires that a union representative shall be a member of the
state impartial review board, is substantively identical to the
requirement of Proposal 5 in National Association of Government
Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26
FLRA No. 62 (1987) (SEIU), which we held nonnegotiable as being
inconsistent with section 7106(a)(2) (A) and (B) of the Statute. Based
on SEIU, the Agency also argues that the proposal's requirement is
nonnegotiable regardless of contrary provisions in a National Guard
Bureau regulation.
The Union argues that the proposal is negotiable because (1) it does
not conflict with management's rights under 7106 of the Statute, and (2)
a National Guard Bureau regulation -- Technician Personnel Manual No.
430, part V, section A -- specifically provides that union membership on
the board may be negotiated.
IV. Analysis and Conclusion
This proposal's requirement -- that a union representative shall be a
member of the state review board -- is identical to the requirement of
Proposal 5 in SEIU, 26 FLRA No. 62. As we explained in SEIU, the
requirement is non-negotiable for the following reasons:
The Board reviews appeals by employees concerning their
performance appraisals and recommends to the Adjutant General
whether the appraisal should be upheld. We find that the Board's
function constitutes an integral part of the process by which the
Agency exercises its rights under section 7106(a)(2)(A) and (B)
(of the Statute) to direct employees and assign work by appraising
the performance of its employees. By placing a Union
representative on the Appeals Board, the proposal would allow the
Union to interject itself into the Agency's decisionmaking process
and prevent the management officials on the Board from engaging in
free and open deliberations . . . (which) are an essential part of
management's right to make decisions under section 7106 of the
Statute. . . . Accordingly, we conclude that Proposal 5 would
interfere with the Agency's rights to direct employees and assign
work and is outside the duty to bargain. (Citations omitted.)
Based on this conclusion -- that the negotiation of this proposal's
requirement is barred by section 7106(a) of the Statute -- we find that
the Union's contention that the proposal is rendered negotiable by the
Agency's regulation cannot be sustained. An agency cannot make
negotiable, by regulation or otherwise, matters which are barred from
negotiation by section 7106(a) of the Statute. See Overseas Education
Association v. FLRA, No. 86-1491, slip op. at 9 (D.C. Cir. Aug. 28,
1987).
Accordingly, we conclude that this proposal is outside the duty to
bargain.
V. Order
The petition for review is dismissed.
Issued, Washington, D.C., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 125
Office of Hearings and Appeals, Social Security Admin., and AFGE,
Local 1760 (Irsay, Arbitrator), Case No. 0-AR-1399 (Decided September
15, 1987)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
SUSPENSION
SUSPENSION REDUCED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE LAW
LAW NOT SPECIFIED
CONTRARY TO APPLICABLE RULE OR REGULATION
RULE OR REGULATION NOT SPECIFIED
FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
DISAGREEMENT WITH ARBITRATOR'S INTERPRETATION OF AGREEMENT
DISAGREEMENT WITH ARBITRATOR'S REASONING AND CONCLUSIONS
DISCIPLINE OF EMPLOYEES
JUST CAUSE
SUSPENSION
REDUCED
DIGEST NOTES
An employee was suspended for five days for unacceptable behavior and
insubordination, on the grounds that she had refused to accept a
reprimand notice and another document unless her union representative
was present. She filed a greivance. The arbitrator was of the opinion
that the grievant had been insubordinate, but that she had not been
abusive or disruptive. He concluded that the agency had had just cause
to discipline the grievant, but reduced the suspension from five days to
one.
The union argued in its exceptions that the arbitrator's award was
contrary to law, regulation, or contract; that it failed to draw its
essence from the contract; and that the arbitrator had used an improper
standard in reaching his conclusions.
The Authority denied the union's exceptions, citing cases in which
exceptions had been denied on bases such as attempts to relitigate the
matter.
Case No. 0-AR-1399
OFFICE OF HEARINGS AND APPEALS SOCIAL SECURITY ADMINISTRATION
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1760, AFL-CIO
Union
DECISION
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator Leonard Irsay 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 Social Security
Administration filed an opposition. For the reasons stated below, the
Union's exception is denied.
II. Background and Arbitrator's Award
The grievant is a hearing assistant in the Office of Hearings and
Appeals of the Social Security Administration. She was suspended for 5
days for unacceptable behavior and insubordination after refusing to
accept a reprimand notice and another document without her union
representative present. The Arbitrator framed the issue before him as
whether the grievant's suspension was for just casue and if not, what
should be the remedy.
The Arbitrator found that the grievant was insubordinate in refusing
to comply with the supervisor's clear and proper order. The Arbitrator
also found, however, that there was no evidence that the grievant was
either abusive or disruptive. After consideration of the evidence and
the arguments, the Arbitrator concluded that the Agency had just cause
to discipline the grievant, but he reduced the suspension from 5 days to
1 day.
III. Discussion
As its exception, the Union contends that the award violates law,
regulation or contract, and that it fails to draw its essence from the
parties' collective bargaining agreement. The Union argues, among other
things, that the Arbitrator used an improper standard in determining
whether to sustain the grievance. The Agency contends that the
exception merely argues with the Arbitrator's reasoning.
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 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, Bureau of Indian Affairs and
National Federation of Federal Employees, Local 243, 25 FLRA No. 74
(1987) (unless a specific standard of proof is required, an arbitrator
may establish whatever standard the arbitrator considers appropriate);
Air Force Space Division, Los Angeles Air Force Station, California and
American Federation of Government Employees, AFL-CIO, Local 2429, 24
FLRA No. 58 (1986) (the exception disagreed with the arbitrator's
formulation of the issues submitted and with the arbitrator's fashioning
of a remedy and provided no basis for finding the award deficient); and
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., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
/s/ FEDERAL LABOR RELATIONS
AUTHORITY
28 FLRA NO. 124
HHS, Social Security Admin., and AFGE, Local 3231 (Joseph,
Arbitrator), Case No. 0-AR-1335 (Decided September 15, 1987)
STATUTE
7106(a)(2)(A) & (B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
DIRECT EMPLOYEES
7106(a)(2)(B)
ARB AWARDS, REMEDIES ORDERED BY ARBS
PERFORMANCE APPRAISALS
RATINGS CHANGED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
EXCEEDED HIS AUTHORITY
SUBSTITUTED HIS JUDGMENT FOR THAT OF MANAGEMENT
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
7106(a)(2)(B)
PERFORMANCE APPRAISAL SYSTEM
ARBITRATION AWARDS AFFECTING PERFORMANCE APPRAISALS
PERFORMANCE APPRAISAL REVISED
DIGEST NOTES
An employee filed a grievance, challenging ratings in her performance
appraisal for several generic job tasks, and the summary appraisal. The
arbitrator, observing that the supervisor had not explained certain
ratings reasonably and had not documented them, determined that the
elements and standards for four of the six ratings grieved had not been
applied by management in the manner required by the parties' agreement.
The arbitrator determined that the grievant was entitled to a specific,
numerical rating for these four tasks; and he concluded that, under
Authority precedent, he was entitled to direct that these ratings be
given. The arbitrator therefore directed the agency to enter the
specific, numerical rating for the four job tasks, and to upgrade the
grievant's summary appraisal accordingly. The arbitrator stated
explicitly that he was not substituting his judgment for that of
management in so ordering.
In its exceptions, the agency argued that, contrary to his assertion,
the arbitrator had substituted his judgment for that of management, in
violation of section 7106(a)(2)(A) and (B).
The Authority agreed with the agency, and modified the award.
Quoting the test it has applied in similar cases, the Authority held
that the circumstances of the instant case were not such that would
permit the arbitrator to determine, "in an objective, nondiscretionary,
and essentially mechanistic manner," and without an independent
evaluation, that the grievant was entitled to different ratings.
Concluding, therefore, that the arbitrator had substituted his judgment
for that of management, the Authority modified the award, directing the
agency to re-evaluate the grievant's performance for the four job tasks.
(majority opinion)
Case No. 0-AR-1335
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231
Union
DECISION /1/
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Myron L. Joseph 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 discussed below, we find that the award is deficient
because the Arbitrator improperly substituted his judgment for that of
management as to the grievant's performance appraisal. Consequently, we
modify the award.
II. Background and Arbitrator's Award
The parties submitted to arbitration the issue of whether the
grievant's October 1985 performance ratings for generic job tasks (GJT)
1, 20, 40, 71, 72, and 111 and her summary appraisal violated the
national agreement. The Arbitrator found that the grievant's ratings
for GTR 1 and 71 were not in violation of the agreement. However, as to
GTR 20, 40, 72, and 111, the Arbitrator found that the elements and
standards established by management had not been applied as required by
the agreement.
As to GTR 20, the Arbitrator ruled that the grievant's supervisor had
not provided a reasonable explanation and had not documented his "2"
rating (fully met the standard). To the Arbitrator the grievant's
performance as described by her supervisor in the appraisal and in
progress reviews during the year was at level "3" (exceeded the
standard). As to GTR 40, the Arbitrator likewise ruled that the
supervisor had not provided a reasonable explanation and had not
documented the "2" rating as required. The Arbitrator concluded that
there was not an appropriate basis for reducing the grievant's
performance rating from the level "3" she had received every year since
1982 and determined that the record indicated that the grievant's
performance was at level "3." As to GTR 72, the Arbitrator again ruled
that the "2" rating had not been documented or explained. He determined
that the record supported that the grievant's performance as described
by her supervisor in the appraisal and progress reviews was at level
"3." As to GTR 111, the Arbitrator noted that in 1982 and 1983 the
grievant had been rated at level "3" and in 1984 she had been rated at
level "4" (substantially exceeded the standard). The Arbitrator
concluded that no valid reason was presented for reducing the grievant's
rating from "3" to "2" and determined that the grievant's performance as
described by her supervisor in the appraisal and progress reviews was at
level "3."
On this basis the Arbitrator concluded that the grievant was entitled
to a "3" rating for these generic job tasks and that under the decisions
of the Authority, he could properly direct that her work product be
granted these ratings. He stated that in reaching the conclusion that
the grievant was entitled to these ratings, he had not independently
evaluated the grievant's performance, and he had not substituted his
judgment for that of management as to what the grievant's evaluation and
rating should be. He explained that there was no independent evaluation
or substitution of judgment because after certain invalid,
inappropriate, and irrelevant criticisms and observations by the
grievant's supervisor were eliminated from the grievant's appraisal, the
supervisor's assessment of her performance for each of these generic job
tasks was best described by the performance standards established by
management for level "3." Accordingly, the Arbitrator awarded as
follows:
On the basis of the record as a whole and for the reasons
discussed above, it is found that the rating received by the
grievant in generic job tasks 20, 40, 72, and 111 and the summary
appraisal on October 29, 1985, were in violation of the National
Agreement. The ratings received for generic job tasks 1 and 71
were not in violation of the Agreement.
The Grievant was entitled to ratings of "3" for generic job
tasks 20, 40, 72, and 111, and the Employer is directed to adjust
her ratings for the October 1, 1984 to September 30, 1985, period
accordingly. In addition, the Employer is directed to change her
Summary Appraisal to "Excellent."
III. Exceptions
A. Contentions
As one of its exceptions, the Agency contends that the award is
contrary to section 7106(a)(2)(A) and (B) of the Statute. The Agency
argues that despite the Arbitrator's statements to the contrary, the
award is deficient to the extent it orders ratings changed because the
Arbitrator substituted his own judgment for that of management as to
what the grievant's performance ratings on these generic job tasks
should be. The Agency maintains that the performance standards for each
of these generic job tasks establishes non-numeric expectations of job
performance and required the supervisor to judge whether the grievant's
performance had fully met the standard (a "2" rating) or had exceeded
the standard (a "3" rating). The supervisor's judgment was that the
grievant's performance of these generic job tasks had met the standard.
The Arbitrator in his award has done nothing more than substitute his
judgment for that of the grievant's supervisor.
In opposition, the Union contends that the Arbitrator has not
substituted his judgment for that of management. The Union claims that
the Arbitrator did not determine that the grievant was entitled to level
"3" ratings by rejecting the supervisor's evaluation. Instead, the
Arbitrator compared the supervisor's documented evaluation of the
grievant's performance with the established standards and correctly
determined that the appropriate rating was "3."
B. Analysis and Conclusions
We conclude that the award is contrary to section 7106(a)(2)(A) and
(B) of the Statute to the extent that it has ordered the grievant's
performance ratings changed. Contrary to the statement of the
Arbitrator and the contention of the Union, we find in agreement with
the Agency that the Arbitrator independently evaluated the grievant's
performance under the elements and standards established by management
and substituted his judgment for that of management as to what the
grievant's evaluations and ratings should be.
In many decisions we have discussed in detail the role of an
arbitrator in resolving disputes pertaining to performance appraisal
matters. For example, Warner Robins Air Logistics Center, Robins Air
Force Base, Georgia and American Federation of Government Employees,
AFL-CIO, Local 987, 28 FLRA No. 83 (1987) (Member McKee, concurring in
the result). We found that an arbitrator may resolve a grievance over
whether an employee was adversely affected in his or her performance
appraisal by management's application of the established performance
standards. The arbitrator may sustain the grievance on finding that
management had not properly applied to the grievant the standards which
it has established. In sustaining the grievance, the arbitrator may
direct when appropriate that the grievant's work product or performance
be granted the rating to which entitled under the established elements
and standards. As to when such a direction would be appropriate, we
have indicated that the disputed appraisal and elements and standards
should be of the type that permits the arbitrator "in an objective,
nondiscretionary, and essentially mechanistic manner to determine
without an independent evaluation that the aggrieved employee was
entitled to a different rating under the established standards." Warner
Robins Air Logistics Center, slip op. at 3 (quoting General Services
Administration, Region 10 and American Federation of Government
Employees, Council 236, 22 FLRA No. 8 (1986) and Social Security
Administration, Office of Hearings and Appeals, Region II and American
Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986)).
We find that the appraisal and the generic job tasks and standards in
dispute in this case did not permit the Arbitrator in an objective,
nondiscretionary, and essentially mechanistic manner to determine
without an independent evaluation that the grievant was entitled to
ratings of "exceeded the standard" for GTR 20, 40, 72, and 111. In our
view, by determining that after certain invalid, inappropriate, and
irrelevant criticisms and observations of the grievant's supervisor were
eliminated from the grievant's appraisal, the supervisor's assessment of
the grievant's performance for each of these non-numeric, generic job
tasks was best described as exceeding the standard, the Arbitrator
independently evaluated the grievant's performance under the established
elements and standards and substituted his judgment for that of
management as to what the grievant's evaluation and rating should be.
IV. Decision
For these reasons, the award is deficient and must be modified. /2/
The following paragraph is substituted for paragraph 2 of the award.
Management shall reevaluate in accordance with the National
Agreement the grievant's performance under generic job tasks 20,
40, 72, and 111 for the period ending September 30, 1985, and
shall apply those ratings in determining her summary appraisal for
the disputed appraisal period.
Issued, Washington, D.C., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee dissenting:
I disagree with the decision of the majority in this case. As I
indicated in my separate opinion in Warner Robins Air Logistics Center,
Robins Air Force Base, Georgia and American Federation of Government
Employees, AFL-CIO, Local 987, 28 FLRA No. 83 (1987), I believe that an
arbitrator has the discretion to determine and award an employee the
appropriate rating under any performance standard when the arbitrator
determines that management improperly applied the standard in the
employee's performance appraisal. As I further stated in Warner Robins,
it is my opinion that as in review of performance-based actions under 5
U.S.C. Section 4303 by arbitrators or the Merit Systems Protection
Board, an agency should be expected to support a performance rating by
substantial evidence. In my view, therefore, if an arbitrator in a
performance appraisal grievance determines that the agency fails to
substantiate its rating of an employee, the arbitrator has the
discretion to direct the agency to cancel the disputed rating and to
grant the employee the rating to which he or she is entitled based on
the evidence.
In this case, the Arbitrator found that the Agency did not provide a
reasonable explanation, valid reason or documentation for rating the
employee's performance as only having met the standards for the tasks
numbered 20, 40, 72, and 111. Moreover, based on the evidence before
him of the employee's actual performance of those tasks as described by
her supervisor in the disputed appraisal and in progress reviews during
the rating period, the Arbitrator found that the employee's performance
exceeded the standards and that she should have been rated accordingly.
Thus, the Arbitrator clearly determined that the Agency had failed to
substantiate its ratings of the employee's performance and that the
evidence supported higher ratings under the established standards.
In these circumstances, I find, based on my opinion in Warner-Robins,
that the Arbitrator's award directing the Agency to grant the employee
the ratings and summary appraisal to which she was entitled is not
deficient under the Statute. In my view, therefore, the Agency's
exceptions should be denied.
Issued, Washington, D.C., September 15, 1987.
/s/ Jean McKee, Member
FOOTNOTES
(1) Member McKee's dissenting opinion follows this decision.
(2) In view of this decision, it is unnecessary to address the
'agency's other exception to the award.
28 FLRA NO. 123
AFGE, Local 85, and VA Medical Center, Leavenworth, Kan.
(Wasserstrom, Arbitrator), Case No. 0-AR-1382 (Decided September 15,
1987
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION
AUTHORITY OF ARBITRATOR
DISCRETION TO FASHION APPROPRIATE REMEDIES
INTERPRETATION AND APPLICATION OF PARTIES' AGREEMENT
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
EXCEEDED HIS AUTHORITY
DECIDED AN ISSUE NOT BEFORE HIM
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
DISAGREEMENT WITH ARBITRATOR'S REASONING AND CONCLUSIONS
DIGEST NOTES
Three grievances were consolidated for arbitration. The union
presented to the arbitrator no arguments on the merits, but alleged that
the agency had made several procedural errors in its handling of the
grievances. The arbitrator determined that the agency had missed the
deadline in the parties' agreement for notifying the union of its
decision on one of the grievances by one day, but that this lack of
timeliness constituted harmless error. He concluded that it would be
unreasonable in the circumstances to impose any penalty for the lack of
timeliness, and denied the grievances.
In its exceptions, the Union argued that the arbitrator had exceeded
his authority by reading into the agreement something that was not
there, and that he had ignored the relevant provisions of the agreement.
The Authority denied the union's exceptions, ruling that the union's
arguments were nothing more than disagreement with the arbitrator's
findings and conclusions.
Case No. 0-AR-1382
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 85
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS
Agency
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Solbert M. Wasserstrom 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.
II. Background and Arbitrator's Award
The Agency rejected three grievances filed by the Union. The Union
requested arbitration and the grievances were consolidated. Before the
Arbitrator, the Union made no arguments on the merits of the grievances.
The Union alleged only that the Agency committed several procedural
errors, including exceeding in each of the three grievances the time
limit set by the parties' agreement within which the Agency's third-step
grievance decision was to be rendered. The Agency raised, among other
matters, an issue as to the number of representatives to which the Union
was entitled at the arbitration hearing.
As to the timeliness of the Agency's decisions, the Arbitrator found
that in two of the grievances the Union received a copy of the decision
in due time; in the third case the Union and the grievant received a
copy of the decision 1 day late; and in each case notice of the
decision was received in ample time to pursue the last remaining remedy
in arbitration. The Arbitrator further concluded that the Agency made a
good faith effort to comply with the requirements of the agreement, that
the late delivery was not purposeful, and that no prejudice had been
shown because of the late delivery.
The Arbitrator noted that under Article 13, Section 9 of the parties'
agreement, if management fails to comply with the time limits for
rendering a decision at step 3, the grievant is to prevail provided
that, among other things, the remedy requested by the grievant is legal
and reasonable under the circumstances of the grievance. The Arbitrator
held that under Article 13, Section 9, the imposition of the penalty in
this case would not be reasonable because the slight delay of delivery
was, at most, harmless error.
As his award, the Arbitrator denied the grievances and awarded two
employees compensation for the time that they were present at the
hearing as Union representatives.
III. Exceptions
The Union contends that the Arbitrator exceeded his authority by
adding to the parties' agreement something that was not intended, and
that the award fails to draw its essence from the parties' collective
bargaining agreement because the Arbitrator ignored the clear and
specific language in the agreement. The Union asserts that the award
grants the Agency additional time to respond to a grievance even though
the parties specifically established time limits for the responses.
The Agency asserts in its opposition to the exceptions that the
Arbitrator correctly applied the agreement.
IV. Analysis and Conclusions
We find that the Union's exceptions fail to establish that the award
is contrary to the Statute. The Union's exceptions constitute nothing
more than disagreement with the Arbitrator's finding and conclusion that
the penalty provided by Article 13, Section 9 should not be imposed
because it would be unreasonable under the circumstances of the case.
Questions as to whether the parties have complied with the procedural
requirements of a negotiated grievance procedure are questions for
resolution by an arbitrator. United States Environmental Protection
Agency, Region IV, Atlanta, Georgia and National Federation of Federal
Employees, Local 1907, 5 FLRA 277 (1981). Disagreement with an
arbitrator's determination with respect to the procedural arbitrability
of a grievance, including his determination that the penalty established
by the agreement for procedural noncompliance should not be imposed
under the circumstances, is not a ground for finding the award
deficient. See Department of the Army, Fort Drum, New York and National
Association of Government Employees, Local R2-61, 10 FLRA 22 (1982).
See also Headquarters, Fort Sam Houston, Department of the Army and
Local 2154, American Federation of Government Employees, AFL-CIO, 15
FLRA 974 (1984); Pearl Harbor Naval Shipyard and Hawaii Federal
Employees Metal Trades Council, 10 FLRA 24 (1982).
V. Decision
The Union's exceptions are denied.
Issued, Washington, D.C., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 122
Social Security Admin., Mid-America Program Service Center, Kansas
City, Mo., and AFGE, Local 1336, Case No. 0-AR-1378 (Decided September
15, 1987)
STATUTE
7121(f)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
SUSPENSION
REIMBURSE EMPLOYEE FOR ALL LOSSES
SUSPENSION RESCINDED
DISCIPLINE OF EMPLOYEES
JUST CAUSE
DISCIPLINE NOT FOR JUST CAUSE
SUSPENSION
RESCINDED
PROCEDURE
FORUMS
AUTHORITY LACKS JURISDICTION
REVIEW OF ARBITRATION AWARDS (5 U.S.C. 7512)
SUSPENSIONS OF MORE THAN FOURTEEN DAYS
UNITED STATES CODE
5 U.S.C. 7512
DIGEST NOTES
The Authority dismissed a union's exceptions to an arbitrator's
award, on grounds that it lacked jurisdiction to review the exceptions.
The arbitrator had found that the grievant's twenty-day suspension had
not been for just cause. He had ordered that the suspension be
rescinded, all references to the suspension expunged, and the employee
reimbursed for all benefits and salary lost due to the suspension. The
arbitrator, however, apparently had denied the grievance insofar as it
pertained to official time, overtime, and compensatory time for certain
other employees. Because the arbitration award involved a suspension of
more than fourteen days, an adverse action covered by 5 U.S.C. 7512, as
described in section 7121(f), the Authority was without jurisdiction
under section 7122(a) to review the union's exceptions.
Case No. 0-AR-1378
SOCIAL SECURITY ADMINISTRATION MID-AMERICA PROGRAM SERVICE CENTER
KANSAS CITY, MISSOURI
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1336
Union
ORDER DISMISSING EXCEPTIONS
I. Statement of the Case
This matter is before us on exceptions to the award of Arbitrator
Preston J. Moore 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.
II. Background and Arbitrator's Award
By an award dated November 12, 1984, the Arbitrator dismissed a
grievance on the basis that it had been filed untimely and in an
improper manner. The grievance alleged that several employees,
including Reginald T. Huey, the Executive Vice-President of the Union,
had been improperly denied official time and overtime, and that the
denial of overtime to Huey resulted in a suspension of 20 workdays. The
Arbitrator dismissed the grievance on grounds of untimeliness. Huey
then appealed the Arbitrator's decision to the U.S. Court of Appeals for
the Federal Circuit. The court determined that Arbitrator erred in
finding that the grievance was untimely, and reversed his decision and
remanded the case to him for a hearing on the merits. Huey v.
Department of Health and Human Services, 782 F.2d 1575 (Fed. Cir. 1986).
On May 14, 1987, the Arbitrator issued his award to which the Union
has filed its exceptions. The Arbitrator stated that the issue before
him was whether Huey's suspension of 20 workdays was for just cause. He
found that Huey was not suspended for just cause. As his award, the
Arbitrator directed the Activity to restore to Huey all benefits and
money lost because of the 20-workday suspension and to remove any
reference to the suspension from the files. The Arbitrator noted that
the Union had also requested that certain other employees be granted
official time, overtime, or compensatory time. The Arbitrator stated
that he was "not going to enter into that forum with the issue being an
ancillary matter in this case(,)" and that the evidence presented was
insufficient for him to rule on those issues. Award at 7-8.
III. Analysis and Conclusions
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).
As relevant to this case, the matters described in section 7121(f) of
the Statute include adverse actions under 5 U.S.C. Section 7512, such as
suspensions for more than 14 days.
The Arbitrator's award in this case relates to a matter covered by
section 7512, namely, the 20-workday suspension of Huey. Under section
7122(a) of the Statute, exceptions to the 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 No. 79 (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); American
Federation of Government Employees, Local 1857 and Sacramento Air
Logistics Center, McClellan Air Force Base, 21 FLRA No. 41 (1986).
Consequently, we are without jurisdiction to review the exceptions.
IV. Order
The Union's exceptions are dismissed.
Issued, Washington, D.C., September 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 121
U.S. Army Missile Command and AFGE, Local 1858, Case No. 0-AR-1287
(Decided September 14, 1987)
STATUTE
7121(f)
7122(a)
SUBJECT MATTER INDEX ENTRIES
PROCEDURE
RECONSIDERATION OF DECISIONS
GROUNDS ALLEGED
AUTHORITY MISINTERPRETED THE FSLMR STATUTE
7121(f)
7122(a)
NO BASIS FOR GRANTING RECONSIDERATION
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
DIGEST NOTES
The Authority denied an agency's motion for reconsideration of an
Authority decision dismissing the agency's and the union's exceptions to
an arbitrator's award. The Authority ruled that the agency's argument
that the Authority had misinterpreted section 7122(a) by finding that
the award concerned a matter covered by section 7121(f) did not
constitute "extraordinary circumstances" justifying reconsideration.
Case No. 0-AR-1287 (28 FLRA No. 3)
U.S. ARMY MISSILE COMMAND
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1858
Union
ORDER DENYING REQUEST FOR RECONSIDERATION
This matter is before the Authority on a request filed by the Agency,
seeking reconsideration of our decision of July 16, 1987, dismissing the
Agency's and Union's exceptions to the Arbitrator's award. The Agency
also filed a request for a stay of our decision.
In our decision, we determined that both the Agency's and the Union's
exceptions to the award may not be filed with the Authority under
section 7122(a) of the Federal Service Labor-Management Relations
Statute (the Statute) since the award in the case related to the
grievant's removal for unacceptable performance.
In support of its request for reconsideration, the Agency argues that
we misapplied the restrictions of section 7122(a) of the Statute in this
case. It contends that the grievance in this case concerns only the
grievant's unsatisfactory performance appraisal and not his removal.
Consequently, the Agency maintains that the award does not concern a
matter described in section 7121(f) of the Statute.
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 Agency has not
established "extraordinary circumstances" within the meaning of section
2429.17. Instead, the arguments presented by the Agency in support of
its request essentially constitute nothing more than disagreement with
the merits of our decision.
Accordingly, the Agency's request for reconsideration is denied. The
Agency's request for a stay is likewise denied.
Issued, Washington, D.C., September 14, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 120
Dep't of the Air Force, 92D Combat Support Group, Fairchild Air Force
Base, Washington, and NFFE, Local 11, Case No. 9-CA-70918 (Decided
September 14, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 9-CA-70198
DEPARTMENT OF THE AIR FORCE, 92D COMBAT SUPPORT GROUP, FAIRCHILD AIR
FORCE BASE, WASHINGTON
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 11, INDEPENDENT
Charging Party
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority under section 2429.1(a) of our
Regulations based on the parties' stipulation of facts. The complaint
alleges that the Respondent violated section 7116(a)(1), (5), and (8) of
the Federal Service Labor-Management Relations Statute (the Statute) by
refusing to provide the Union with the names and home addresses of
bargaining unit employees. The Respondent and General Counsel filed
briefs. For the reasons stated below, we find that the Respondent has
committed the unfair labor practices as alleged.
II. Facts
The Union represents a unit of employees paid from appropriated funds
and serviced by the Fairchild Air Force Base Civilian Personnel Office.
The unit has approximately 417 employees. By letter dated January 21,
1987, the Union requested the names and home addresses of all employees
in the exclusive unit. By letter dated January 23, 1987, the Respondent
refused to provide the information to the Union.
The parties have stipulated that the information is maintained in the
Respondent's appropriated fund payroll files and may be obtained from
there. However, the payroll records do not identify employees by
bargaining unit status. That information is contained in the
Respondent's personnel records. Furthermore, there is no automated
record at the Respondent's facility with the names, home addresses and
unit status of appropriated fund civilian employees. The parties
further stipulate that the information does not constitute guidance,
counsel, advice, or training provided for management officials or
supervisors relating to collective bargaining.
III. Positions of the Parties
A. The Respondent
The Respondent concedes that our decision on remand 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), is dispositive of several issues, but urges us to reverse that
decision. The Respondent argues that release of the names and home
addresses of employees is contrary to the Privacy Act, and also that
availability of alternate methods of communication with employees in
some situations would be sufficient to preclude the requirement of
release of names and home addresses.
In addition, the Respondent argues that certain requirements of
section 7114(b)(4) of the Statute are not met here. Specifically, it
argues that the records are not normally maintained in the regular
course of business as required by section 7114(b)(4)(A) because (1)
names and home addresses are in payroll records which are not identified
by bargaining unit status; and (2) there is no automated record at the
Respondent's facility which contains the names, home addresses and
bargaining unit status of appropriated fund civilian employees. The
Respondent concedes that a list could be created manually by going
through the records of the employees. Because such a list would have to
be created, the Respondent also argues that the data are not "reasonably
available" as required by section 7114(b)(4)(B).
B. The General Counsel
The General Counsel argues that our decision in Farmers Home and
subsequent cases relying on it are controlling in this case. The
General Counsel submits that the Respondent's refusal to provide the
names and home addresses of bargaining unit employees violates section
7114(b)(4) of the Statute and constitutes the unfair labor practices
alleged in the complaint.
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of the names and home addresses of bargaining unit employees to
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 of section 7114(b)(4). Our decision in Farmers Home
analyzed the two exceptions to the Privacy Act's bar to disclosure of
personal information pertinent to the release of employees' names and
home addresses: exception (b)(2), concerning the Freedom of Information
Act, and exception (b)(3), relating to "routine use" of information. We
found that both exceptions to the Privacy Act's bar applied so as to
authorize release of the information under the Privacy Act, and the
Respondent has conceded that under Farmers Home, the requirements of the
Privacy Act have been met. We also found in Farmers Home that the
release of the information is generally required without regard to
whether alternative means of communication are available.
Although the Respondent argues that the information sought by the
Union is not normally maintained or reasonably available, the
stipulation clearly shows that the names and home addresses of employees
are maintained and that identification of employees as to unit status
also is maintained. Consequently, we find that the requirement of
section 7114(b)(4)(A) has been met and that the information is
reasonably available within the meaning of section 7114(b)(4)(B). See
Department of the Navy, Naval Submarine Base, New London (New London,
Connecticut), 27 FLRA No. 85 (1987). Consistent with our decision in
Farmers Home, we therefore find that the Respondent was required to
furnish the Union with the nmaes and home addresses of the employees in
the bargaining unit. Its refusal to do so violated section 7116(a)(1),
(5), and (8) of the Statute.
V. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Department of the Air Force, 92d
Combat Support Group, Fairchild Air Force Base, Washington, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of
Federal Employees, Local 11, Independent, the exclusive representative
of a unit of its employees, the names and home addresses of all
bargaining unit employees it represents located at Fairchild Air Force
Base, Washington.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the National Federation of Federal Employees, Local 11,
Independent, the exclusive representative of a unit of its employees,
with the names and home addresses of all bargaining unit employees it
represents located at Fairchild Air Force Base, Washington.
(b) Post at all its facilities at Fairchild Air Force Base, where
bargaining unit employees represented by the National Federation of
Federal Employees, Local 11, Independent, 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, 92d Combat Support Group, Fairchild Air Force Base,
Washington, 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 IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what step have been taken to comply.
Issued, Washington, D.C., September 14, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish upon request of the National Federation
of Federal Employees, Local 11, Independent, the exclusive
representative of a unit of our employees, the names and home addresses
of all bargaining unit employees it represents located at Fairchild Air
Force Base, Washington.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Federation of Federal Employees, Local
11, Independent, the exclusive representative of a unit of our
employees, with the names and home addresses of all bargaining unit
employees it represents located at Fairchild Air Force Base, Washington.
(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 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.
28 FLRA NO. 119
Overseas Education Ass'n and DOD Dependents Schools, Case No.
0-NG-1225 (Decided September 10, 1987)
STATUTE
7103(a)(12)
7105(a)(2)(E)
7106(a)(2)(A) & (B); 7106(b)(2) & (3)
7114(a)(1)
SUBJECT MATTER INDEX ENTRIES
APPROPRIATE ARRANGEMENTS (7106(b)(3))
ADVERSE-IMPACT TEST
ASSIGN WORK, RESERVED MGM'T RIGHT
ELEMENTS OF THE RIGHT TO ASSIGN
DUTIES AND WORK TO BE ASSIGNED
TIMING OF WORK ASSIGNMENTS
EMPLOYEES OR POSITIONS TO BE ASSIGNED
PERFORMANCE APPRAISAL SYSTEM
COMPENSATION SYSTEM
AUTHORITIES GOVERNING PAYMENT TO FEDERAL EMPLOYEES
20 U.S.C. 901 et. seq. (DOD OVERSEAS TEACHERS PAY ACT)
WAGES/SALARY RATES/FRINGE BENEFITS
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
EDUCATIONAL PERSONNEL (20 U.S.C. 241(a))
DIRECT EMPLOYEES, RESERVED MGM'T RIGHT
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE EVALUATION
EXCLUDING CERTAIN DUTIES FROM APPRAISAL
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING (7106(b)(2))
ACTING-AT-ALL STANDARD
DELAY
PROPOSALS DELAYING BUT NOT PREVENTING EXERCISE OF MGM'T RTS
UNITED STATES CODE
20 U.S.C. 901(1) (OVERSEAS TEACHERS PAY ACT)
DIGEST NOTES
The Authority considered four proposals dealing with the agency's new
regulation pertaining to "student activity funds" (the "SAF regulation")
in this negotiability appeal.
The Authority determined preliminarily that the proposals were not
appropriate arrangements, rejecting the union's argument that the
proposals were necessary to mitigate adverse effects upon employees
required to perform additional duties by the SAF regulation. The
Authority, citing precedent, ruled that the establishment of job
requirements does not in itself affect employees adversely. The
Authority then addressed the proposals individually.
A nonnegotiable proposal would have made participation in the SAF
councils voluntary, and would have provided that such participation
normally be within regular working hours. The Authority ruled the
proposal inconsistent with management's section 7106(a)(2)(B) right to
assign work, but stressed that the assignment of employees "in the
absence of qualified volunteers." (proposal 1)
A nonnegotiable proposal would have excluded participation in
assignments mandated by the SAF regulation from consideration in
performance appraisals. The Authority ruled the proposal inconsistent
with management's rights to assign work and to direct employees, because
it would have limited management's ability to review and evaluate an
employee's performance of assigned duties. (proposal 3)
A negotiable proposal would entitle employees to time-and-a-half
compensation for SAF-regulation work done outside normal duty hours. In
agreement with the union, the Authority ruled that the proposal
concerned a matter within the negotiable, administrative discretion of
the agency, under the Overseas Teachers Pay Act (20 U.S.C. 901 et.
seq.). (majority opinion, proposal 2)
A negotiable proposal would forestall implementation of the SAF
regulation until the completion of negotiations on its impact and
implementation. The Authority held that the proposal constituted a
negotiable procedure, as it would delay but not prevent management from
exercising its rights. (majority opinion, with concurrence in result,
proposal 4)
Case No. 0-NG-1225
OVERSEAS EDUCATION ASSOCIATION
Union
and
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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). It concerns the
negotiability of four proposals pertaining to a new Agency regulation
entitled "Department of Defense Dependents Schools Administration of
Student Activity Funds" (the SAF regulation).
II. The Proposals are Not Appropriate Arrangements
The Union argues generally that even if the proposals in this case
are held to directly interfere with management's rights under section
7106 of the Statute they all are nevertheless negotiable as appropriate
arrangements for employees adversely affected by the exercise of those
rights within the meaning of section 7106(b)(3). The threshold question
is whether each proposal is an "arrangement" for adversely affected
employees. See National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). The Union
states that the purpose of the proposals is to mitigate the adverse
effects on certain unit employees of being required to perform
additional duties prescribed in the SAF regulation.
Assuming, for the purpose of this decision, that the SAF regulation
prescribes additional job requirements as the Union claims, in our view
it follows that the proposals concern the effects of management's
establishing job requirements. The establishment of job requirements
does not, by itself, adversely affect employees. See 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),
(employees are not adversely affected because their job requirements are
changed -- adverse effect comes when action is taken against them based
upon application of those job requirements). Accord Alford v.
Department of Health, Education and Welfare, 1 MSPB 305 (1980)
(employees may not appeal from the Agency's development of performance
standards for their positions but only from actions taken against them
on the basis of those standards). Therefore, none of these proposals
concerns an "arrangement" for adversely affected employees.
Consequently, we need not reach the question whether the proposals are
"appropriate" arrangements, since they do not qualify for consideration
under section 7106(b)(3). See Patent Office Professional Association
and Patent and Trademark Office, 25 FLRA No. 29 (1987) (Proposal 3K)
appeal filed sub nom. Patent Office Professional Association v. FLRA,
No. 87-1135 (D.C. Cir. March 26, 1987).
III. Proposal 1
Participation by unit employees on the SAF Councils shall be
voluntary and shall normally be done during said employees' duty
day.
A. Positions of the Parties
The Agency contends that the proposal conflicts with the right to
assign work under section 7106(a)(2)(B). It argues that the proposal:
(1) precludes assigning unit employees to participate on the Student
Activity Fund (SAF) Councils against their wishes; (2) prescribes when
a particular assignment of work would be performed; and (3) prevents
assigning work occurring outside of the normal duty day. In support of
its position, the Agency cites, among other decisions, Fort Knox
Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878
(1985).
The Union contends that the Agency's assigning teachers the
additional duty of serving on SAF Councils is inconsisent with the
Defense Department Overseas Teachers Pay and Personnel Practices Act
(Overseas Teachers Pay Act or the Act), 20 U.S.C. Sections 901-907. It
argues that 20 U.S.C. Section 901(1) "circumscribes" the duties which
can be assigned to teachers. Union Response at 2.
B. Analysis and Conclusion
1. The Assignment of Work Does Not Violate the Overseas
TEACHERS PAY ACT.
To support its argument that the Agency's assigning teachers to serve
on SAF Councils conflicts with the Overseas Teachers Pay Act, the Union
relies on 20 U.S.C. Section 901(1) which defines the phrase "teaching
position" for purposes of coverage by the Act. The section defines the
phrase to mean simply those duties and responsibilities which "involve"
certain enumerated professional educational activities. We assume,
without deciding, for purposes of analysis that serving on SAF Councils
exclusively involves duties which are outside the scope of those
enumerated in section 901(1). We nevertheless cannot find in the plain
language of section 901(1) any indication or even implication that
Congress intended to prevent management from assigning other kinds of
duties to a teaching position, in addition to those enumerated.
Furthermore, the Union has not referred to any portion of the
legislative history of the Overseas Teachers Pay Act, or to any judicial
interpretation, which would lead us to reach a different conclusion.
Consequently, we find that the Union has not supported its claim that
the work assigned to the Agency through means of its regulation is in
conflict with the Act.
2. The Proposal is Inconsistent with Management's Right to
Assign Work
It is well-settled that a proposal may not prohibit assigning duties
to bargaining unit employees and that management's right to assign work
is not limited to work occurring during normal duty hours. Fort Knox
Teachers 19 FLRA 878 (Proposal 4) (Agency's requiring teachers to attend
afterhour Parent Teacher Association meetings held to be an assignment
of work). This proposal is similar to Proposal 4 in Fort Knox Teachers
inasmuch as it would deprive the Agency of its right to require
employees to serve on SAF Councils by making participation only
voluntary and also insofar as the SAF Councils frequently meet after
normal duty hours. Union Response at 2. Accordingly, for the reasons
set forth in Fort Knox Teachers, we find that this proposal violates
management's rights to assign work.
Although the proposal violates management's right to assign work, it
is clear to us that in view of the nature of the Student Activity Fund
Councils, the Agency could profit from discussions with the Union
concerning the procedures by which assignments will be made. In
particular, the Councils are concerned with the administration of
nonappropriated funds primarily for the benefit of the students
involved. While the Councils concern the "work" of the Agency, that
work is not as integrally related to the mission of the Agency as were
the meetings involved in Fort Knox Teachers, in our view. In other
contexts, proposals relating to the use of volunteers for certain work
assignments have been held to be negotiable. American Federation of
Government Employees, AFL-CIO, Local 1631 and Veterans Administration
Medical Center, Chillichothe, Ohio, 25 FLRA No. 26 (1987) (Provision 2);
National Treasury Employees Union, Chapter 153 and Department of the
Treasury, U.S. Customs Service, 21 FLRA No. 128 (1986) (Proposal 2). It
is our view that if Proposal 1 were reworded to provide that "in the
absence of qualified volunteers the Agency could assign the work to an
employee," it would be negotiable. Although we find the proposal
nonnegotiable as written we urge the parties to engage in discussions to
resolve the defect and mutually work toward the objectives of the
Agency's administration of the SAF Regulation.
3. Conclusion
The proposal is outside the duty to bargain.
IV. Proposal 2
The FLRA Members have reached differing conclusions concerning
Proposal 2. The decision and order on Proposal 2 and Chairman Calhoun's
separate opinion immediately follow this decision.
V. Proposal 3
Participation by unit employees in the SAF Councils, Fund
Custodian and Bookkeeper positions shall not be used against said
employee's annual performance appraisal rating.
A. Positions of the Parties
The Agency contends that the proposal would prevent management from
evaluating an employee's performance of certain duties.
The Union argues that service on SAF Councils is not a teaching duty
found in the critical and noncritical elements of overseas teachers, and
therefore it should not be used as a factor in an employee's performance
evaluation. It also argues that performing these duties should not
affect teachers' performance appraisals because if such work is done
without pay and after the workday it does not constitute the job for
which they were hired.
B. Analysis and Conclusion
Proposal 3 is outside the duty to bargain. It conflicts with
management's rights to assign work and to direct employees by imposing a
substantive limitation on the agency's ability to review and evaluate an
employee's performance of assigned duties.
Management's rights under the Statute, to assign work and to direct
employees encompass the ability to review and evaluate an employee's
performance of assigned duties. National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775
(1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691
F.2d 553 (D.C. Cir. 1982).
As we explained in connection with Proposal 1, all work assigned to a
teacher, including work which is not of a type enumerated in 20 U.S.C.
Section 901(1) as well as work which occurs beyond the normal school
day, falls within the scope of management's right to assign work. Fort
Knox Teachers 19 FLRA 878 (Proposal 4).
Like the proposal in Fort Knox Teachers, Proposal 3 concerns assigned
work -- participation on a SAF Council or related assignments. Proposal
3 would preclude management from evaluating an employee's performance of
that work. Thus, the proposal would directly interfere with the
Agency's ability to review and evaluate an employee's performance of
work assigned by management pursuant to its reserved right.
VI. Proposal 4
The FLRA Members have reached the same conclusion concerning Proposal
4 but with different reasoning. The decision and order on Proposal 4
and Chairman Calhoun's separate opinion immediately follow this
decision.
VII. Order
The petition for review as to proposals 1 and 3 is dismissed.
Issued, Washington, D.C., September 10, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 2 AND 4
I. Proposal 2
Each participating unit employee shall receive extra
compensation at a rate equal to 1 1/2 of their regular rate of
pay, for each hour or portion thereof spent fulfilling the
requirements of the SAF Councils, beyond the duty pay.
A. Positions of the Parties
The Agency contends that the negotiation of wages and money-related
fringe benefits was not intended to be subject to negotiations unless
subject to the savings provision contained in section 704 of the Civil
Service Reform Act of 1978. Agency's Statement of Position at 9. The
Agency argues that overseas teachers are not prevailing rate employees
and as such are not covered by section 704 of the Civil Service Reform
Act. Finally, the Agency also argues that it does not have discretion
under the Overseas Teachers Pay Act to negotiate wages.
The Union contends that the proposal is negotiable under the Overseas
Teachers Pay Act.
B. Analysis and Conclusion
Proposal 2 is within the duty to bargain. In Overseas Education
Association and U.S. Department of Defense Dependents Schools, 28 FLRA
No. 88 (1987), (Chairman Calhoun dissenting), we held that Proposal 1
requiring additional compensation for duties performed by teachers
beyond the normal workday was within the duty to bargain. The present
proposal, involving the same parties, is to the same effect.
Accordingly, for the reasons set forth in Overseas Education
Association, 28 FLRA No. 88 we find that (1) the present proposal
concerns a matter within the negotiable administrative discretion of the
Agency under the Overseas Teachers Pay Act; and (2) the provisions of
law applicable to prevailing rate employees cited by the Agency have no
relevance to the negotiability of pay matters relating to these
employees.
II. Proposal 4
This regulation shall not be implemented until an agreement is
reached between the parties on the implementation procedures,
proposals and impact proposals submitted by OEA.
A. Positions of the Parties
The Agency contends that the proposal is outside the duty to bargain
in the circumstances of this case because the regulation has only a de
minimis impact on the conditions of the employment of bargaining unit
employees. It contends that the parties have reached the point of
impasse in their negotiations and, therefore, the Agency can implement
the regulation. Finally, the Agency contends that the proposal directly
interferes with management's right to assign work.
The Union contends that the filing of a negotiability appeal is not
an indication of an impasse.
B. Procedural Issues
In addition to claiming that the Union's proposal is nonnegotiable
because it is inconsistent with the Agency's right to assign work, the
Agency contends that it has no duty to bargain concerning this proposal
in the circumstances of this case because (1) no change has been made by
the regulation sufficient to give rise to a duty to bargain; and (2) it
has negotiated to impasse and is entitled to implement the regulation.
Since these claims do not raise issues as to whether the proposal is
inconsistent with applicable law, rule or regulation, they do not meet
the conditions for review of a negotiability issue under section 2424.1
of our Regulations. American Federation of Government Employees, Local
12, AFL-CIO and Department of Labor, 26 FLRA No. 89 (1987).
Where, as here, the conditions for review of a negotiability issue
have otherwise 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 such additional issues. See, for example,
American Federation of Government Employees, AFL-CIO, Local 2736 and
Department of the Air Force, Headquarters 379th Combat Support Group
(SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).
Accordingly, the claimed existence of threshold duty to bargain
questions does not preclude us from determining the negotiability of the
proposal in this case since it is otherwise properly before us.
C. The Proposal is a Negotiable Procedure
This proposal reflects the Union's desire to "hold implementation of
the regulation in abeyance until impact and implementation negotiations
are completed." Union Response at 5. It is well-settled, of course,
that the obligation to bargain under the Statute extends only to
conditions of employment within the bargaining unit. See section
7103(a)(12) and 7114(a)(1). Although the language of the proposal is
silent on this point, it does not appear from the record that the Union
intends the proposal to be interpreted in a manner which would be
inconsistent with this principle. Hence, we interpret this proposal as
requiring the Agency to bargain to hold implementation of the regulation
in abeyance only as to employees in the bargaining unit.
The proposal imposes no substantive criteria on management's exercise
of its right to assign work, nor does it purport to prevent the Agency
from assigning work. Rather, the Agency retains its full discretion
under the proposal to implement the work assignments contained in its
regulation, once it completes negotiations over the impact and
implementation of the regulation. Therefore, this proposal is
negotiable under established Authority precedent as a procedure which
delays but does not prevent management from acting at all to exercise
its statutory rights. See, for example, American Federation of
Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA
No. 83 (1987) (Proposal 4 -- right to make determinations with respect
to contracting out) (Chairman Calhoun dissenting); National Treasury
Employees Union and Department of Energy, 24 FLRA No. 52 (1986) (rights
to select and to hire); 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 (1984) (Proposal 3); National Treasury Employees Union and U.S.
Customs Service, Region VIII, San Francisco, California, 2 FLRA 255,
261-62 (1979), and cases cited therein.
III. Order
The Agency must bargain, upon request or as otherwise agreed to by
the parties, concerning Proposals 2 and 4. /*/
Issued, Washington,D.C., September 10, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
SEPARATE OPINION OF CHAIRMAN CALHOUN
I agree with my colleagues that the issues concerning the
negotiability of Proposal 2 are essentially the same as those concerning
Proposal 1 in Overseas Education Association and Department of Defense
Dependents Schools, 28 FLRA No. 88 (1987). Therefore, for the reasons
set forth in my separate opinion in that case, I do not join my
colleagues here.
As to Proposal 4, I agree with my colleagues that Proposal 4 is
negotiable. However, I reach this conclusion for different reasons. In
my view, the proposal is essentially a restatement of the Agency's
obligation under the Statute to meet its bargaining obligations
concerning changes in conditions of employment before implementing those
changes. An agency may implement such changes only if (1) the parties
have reached agreement, (2) the parties have reached impasse after
good-faith bargaining and there has been no timely invocation of the
services of the Federal Service Impasses Panel (unless implementation is
consistent with the necessary functioning of the agency), or (3) the
union has waived its bargaining rights. See, for example, Department of
Justice, United States Immigration and Naturalization Service, El Paso
District Office, 25 FLRA No. 3 (1987), petition for review filed sub
nom. U.S. Immigration and Naturalization Service v. FLRA, No. 87-4149
(D.C. Cir. March 6, 1987).
I find nothing in the proposal or the Union's statement of intent
which indicates that the Union is seeking anything more than that to
which it is entitled under the Statute. In addition, I agree with my
colleagues that the proposal applies to implementation concerning
bargaining unit employees only. For these reasons I concur with my
colleagues finding Proposal 4 to be negotiable. I do not agree,
however, that American Federation of Government Employees, Local No. 12
and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal No. 4) is
appropriately or necessarily applied to support the result here. In
that case my colleagues determined that the agency may be required
unconditionally to suspend contracting out certain functions for a
1-year period. I dissented in that case and here reassert my opinion
that such a bar would substantively and excessively infringe on
management's right to contract out because it precludes management from
determining when it must contract out in order to be able to function in
an effective and efficient manner. That issue is not present here.
Issued, Washington, D.C., September 10, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In finding Proposals 2 and 4 to be within the duty to bargain, we
make no judgment as to their merits.
23 FLRA NO. 118
Fort Bragg Ass'n of Educators, NEA, Fort Bragg, N.C., and Fort Bragg
Defense Dependents Schools, Fort Bragg, N.C., Case No. 4-CO-60004
(Decided September 4, 1987)
STATUTE
7114(a)(1); (a)(2)(B)
7116(b)(1)
SUBJECT MATTER INDEX ENTRIES
REPRESENTATION OF EMPLOYEE BY UNION
STANDARDS: BREACH OF DUTY
7114(a)(1) DUTY NOT TO DISCRIMINATE AGAINST NON-MEMBERS
UNION MUST ADHERE WHEN ACTS AS EXCLUSIVE REPRESENTATIVE
UNION NEED NOT ADHERE WHEN NOT ACTING AS EXCLUSIVE REP
UNION ULP (ALLEGED) (7116(b)(1))
DISPARATE REPRESENTATION BASED ON UNION MEMBERSHIP
DIGEST NOTES
In this unfair labor practice case, the Authority ruled that the
union had not violated its duty of fair representation when it had
informed the bargaining unit that dues-paying members of the unit would
receive preferential treatment in a lawsuit brought by another union.
In so holding, the Authority reversed the administrative law judge's
determination.
In its exceptions to the administrative law judge's decision, the
union had cited a decision of the United States Court of Appeals for the
District of Columbia Circuit, issued just after the ALJ issued his
decision. The District of Columbia Circuit held that Congress had
established for government-employee unions the private-sector duty of
fair representation. The Authority adopted the view of the District of
Columbia Circuit, and pronounced the standard to be adhered to
henceforth in such cases. When a union acts as the exclusive
representative of its unit members, it must act without discrimination,
and without regard to union membership, under section 7114(a)(1). When
a union is not acting as the exclusive representative, it will not be
held to the section 7114(a)(1) standard.
Applying the standard to the instant case, the Authority determined
that there was nothing in the record to indicate that the union's
representation of the employees in the lawsuit was grounded in the
union's role as exclusive representative. The Authority therefore
dismissed the complaint against the union.
Case No. 4-CO-60004
FORT BRAGG ASSOCIATION OF EDUCATORS, NATIONAL EDUCATION ASSOCIATION,
FORT BRAGG, NORTH CAROLINA
Respondent
and
FORT BRAGG DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, FORT BRAGG,
NORTH CAROLINA
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent (Union) to the attached decision of the
Administrative Law Judge. The General Counsel filed an opposition to
the exceptions. At the request of the Authority, supplemental
submissions were filed by the General Counsel, the Respondent, and the
Charging Party.
The complaint alleges that the Respondent violated section 7116(b)(1)
of the Federal Service Labor-Management Relations Statute (the Statute)
when it interfered with, restrained, and coerced employees in the
exercise of their rights under section 7102. The bases of the complaint
are the Respondent's alleged indications to members of the bargaining
unit it represents that dues-paying members would receive preferential
treatment in a lawsuit brought by another labor organization, the
Overseas Education Association (OEA).
For the reasons stated below, we find that the Respondent did not
violate the Statute, and we will order that the complaint be dismissed.
II. Background
A. Facts as Found by the Administrative Law Judge
Following is a summary of the facts, which are detailed in the
Administrative Law Judge's Decision.
Prior to September 1985, the Overseas Education Association decided
to file a lawsuit concerning the status as Federal employees of teachers
in the Department of the Army's Section 6 school system, including those
represented by the Respondent. The purpose of the lawsuit was to have
all Section 6 personnel who were employed by the Department of the Army
declared Federal employees, thereby guaranteeing them Federal
retirement, tenure, grievance, and reduction-in-force benefits.
In September 1985, Ronald Austin, the Executive Director and General
Counsel of OEA, addressed a general meeting of teachers at Fort Bragg.
Mr. Austin informed approximately 60 to 70 teachers present at the
meeting that OEA's plan was to include Respondent's dues-paying members
in the lawsuit on a "non-fee" basis; if there were nonmembers who
wanted to join the suit, "some financial arrangement would have to be
made where they would have to pay some kind of pro-rated or share of the
cost." ALJ Decision at 4.
In October 1985, the Respondent distributed a newsletter to all
bargaining unit employees. In the portion of the newsletter entitled
"Message from the President," the following was stated, in pertinent
part (ALJ Decision at 4-5):
In accordance with our fee for service arrangement, OEA will
list all our Dues-Paying Members as plaintiffs so that if the
court decision is in our favor, the decision will be retroactive
to the date all named members were employed. For those people who
are not Dues-Paying Members, they will be federal employees only
from the date of the court decision. These Non-Paying Members of
the Union would have to hire their own attorney to file suit to
have their federal employment declared retroactive to the date
they began working. Thus, people who have been Non-Dues Paying
Members, unless they hire their own attorney and file suit could
stand to lose all time in grade presently applied to retirement.
It is definitely in your best interest to be a Dues-Paying Member
of FBAE (Fort Bragg Association of Educators). There is still
time to join, you have until December 15, 1985 . . . . (Emphasis
in newsletter.)
On November 4, 1985, the Union's President conducted a general
membership meeting which was attended by approximately 30 employees.
The employees were informed by the President that nonmembers who desired
to be included in the lawsuit would be required to pay a fee for their
inclusion. The President told the employees that they should contact
Mr. Nguyen, attorney with OEA, to determine the amount of the fee. The
President was later informed that the fee for inclusion of each
nonmember would be $500.
The unfair labor practice complaint is based on the information
contained in the Union's newsletter and the information conveyed at the
November 4 meeting.
B. The Lawsuit and Its Disposition
Although the Administrative Law Judge's decision references the fact
that a lawsuit was filed by OEA, the record did not contain a copy of
the complaint which was actually filed. The record also did not contain
any reference to the disposition of the lawsuit. Accordingly, the
Authority requested the parties to file supplemental submissions
containing a copy of the complaint filed in the District Court, and to
advise the Authority of the status of the lawsuit and any effect of the
status on the parties' positions in this unfair labor practice case.
The supplemental submissions reveal the following:
The lawsuit was filed on December 9, 1985, in the United States
District Court for the Southern District of New York. Hess v. Marsh, 85
Civ. 9608 (MGC). The complaint requested declaratory and injunctive
relief and included a petition for a Writ of Mandamus. It was brought
by six named individuals: three civilian teachers employed by the
Department of the Army at the West Point Elementary School and three
civilian teachers employed by the Department of the Army at elementary
schools at Fort Stewart.
The complaint states that the action also was brought by OEA, which
was "suing in its representational and associational capacity on behalf
of itself and the interests of approximately two hundred of its members
who are employed as educators by the United States Department of the
Army at the West Point Elementary School and at the Department of the
Army Schools at Fort Stewart, Georgia." Complaint, paragraph 11. The
complaint requested, among other things, that (1) the defendants be
enjoined from "requiring the named individual plaintiffs and the other
OEA members who teach at the West Point and Fort Stewart" schools to
execute personal service contracts as conditions of their employment and
(2) defendants be ordered to "issue to each named individual plaintiff
and the other OEA members who teach at the West Point and Fort Stewart"
schools a Standard Form 50 bearing the original date of their employment
with the Department of the Army. Complaint, Request for Relief,
paragraphs 2 and 3.
A Stipulation of Settlement and Dismissal was filed by the parties in
Hess v. Marsh with the U.S. District Court for the Southern District of
New York on January 16, 1987. The stipulation provides, among other
things, that the plaintiffs agreed to "dismiss the complaint with
prejudice . . . ," and that the defendants agreed to "appoint each of
the named individual plaintiffs as a federal employee" and to issue to
each individual so appointed a Standard Form 50 with appropriate
notations "for purposes of establishing title to a civil service annuity
and computing the annuity . . . ." Stipulation, paragraphs 1 and 3.
Subsequently, on March 16, 1987, the Chief, U.S. Army Civilian Personnel
Center issued a memorandum entitled "Settlement Agreement - Hess v.
Marsh" to various officials, including the Commander of the U.S. Army
Airborne Corps and Fort Bragg. That memorandum detailed the procedures
for completing the Standard Form 50, stating that certain information
"must be noted on all SF-50s issued for currently employed Section 6
personnel . . . ."
The parties' arguments concerning the effect of the status of the
lawsuit on their positions in this case are discussed in section IV of
this decision.
III. The Administrative Law Judge's Decision
The Judge found that when the Respondent informed bargaining unit
employees in its newsletter that only dues-paying members would be
represented, it "plainly violated" its obligation under section
7114(a)(1) of the Statute to represent "the interests of all employees
in the unit it represents without discrimination and without regard to
labor organization membership." ALJ Decision at 11. The Judge reasoned
that the lawsuit "obviously related to the fruits of collective
bargaining and the Union may not provide such a benefit exclusively for
Union members." ALJ Decision at 11. The Judge also found that by
informing employees at the November 4 meeting that nonmembers would be
required to pay a fee to be included in the lawsuit, the Respondent
unlawfully discriminated between members and nonmembers. In finding
that the Union violated the Statute, the Judge relied on National
Treasury Employees Union, 10 FLRA 519 (1982), enf'd, 721 F.2d 1402 (D.C.
Cir. 1983); American Federation of Government Employees, AFL-CIO, 17
FLRA 446 (1985), petition for review filed sub nom. AFGE v. FLRA, No.
85-1333 (D.C. Cir. June 5, 1985); and American Federation of Government
Employees, AFL-CIO, Local 916, 18 FLRA 5 (1985), rev'd sub nom. AFGE,
Local 916 v. FLRA, 812 F.2d 1326 (10th Cir. 1987).
The Judge rejected the Respondent's argument that it did not violate
the Statute because the conditions for non-member participation in the
lawsuit were set by OEA, an organization with which it is not affiliated
and with which it has no fee arrangement. He stated that while there
was no "direct affiliation between the Union and OEA in the sense of
membership, there was, most definitely a relationship in the sense of
services." ALJ Decision at 8. As a remedy, the Judge recommended that
the Authority direct the Respondent to cease and desist from
"(a)ffording different standards of employee representation . . . solely
on the basis of whether such employees are members" of the Union. He
also recommended that the Respondent be directed to represent all
employees in its bargaining unit "without discrimination and without
regard to (Union) membership . . . ."
IV. Positions of the Parties
The Respondent filed exceptions to the Judge's decision, contending
that the Judge erred in defining the duty of fair representation
broadly. The Respondent relies on the decision of the District of
Columbia Circuit in National Treasury Employees Union v. FLRA, 800 F.2d
1165 (D.C. Cir. 1986), which issued several days after the
Administrative Law Judge's decision now before us. According to the
Respondent, the court fully analyzed the scope of a union's duty of fair
representation under the Statute and concluded that the scope of this
duty is confined to the scope of the union's authority as exclusive
representative. The Respondent asserts that the narrower standard
should be applied in this case, and that under this standard, it was not
obligated to represent non-member employees in the lawsuit involved in
this case. Accordingly, the Respondent contends that its conduct did
not constitute an unfair labor practice.
The General Counsel opposes the Respondent's exceptions. The General
Counsel contends that the decision of the District of Columbia Circuit
is in error, and that previous Authority and court decisions are
controlling. On the basis of those decisions, the General Counsel
maintains that a union has a duty to represent unit members fairly and
without discrimination on the basis of union membership when it
undertakes representation on any matter affecting conditions of
employment. The General Counsel therefore contends that the
Administrative Law Judge properly found that the Respondent's conduct
constituted an unfair labor practice.
As noted above, the General Counsel, the Respondent and the Charging
Party filed supplemental submissions at the Authority's request. The
Respondent maintains that the unfair labor practice charge should be
dismissed because the settlement of the lawsuit benefits "all Army
Section Six personnel, whether or not a named plaintiff in that action,
and regardless of union membership." Union Supplemental Submission at 2.
The General Counsel and the Charging Party assert that the current
status of the lawsuit is irrelevant to the disposition of the case.
V. Relevant Case Law
In resolving the unfair labor practice complaint in this case, it is
helpful to review relevant case law of the Authority and the courts
concerning the scope of a union's duty of fair representation under
section 7114(a)(1) of the Staute.
A. Authority Decisions
As stated above, the Judge relied on three Authority decisions. In
the first, National Treasury Employees Union, 10 FLRA 519 (1982), enf'd,
721 F.2d 1402 (D.C. Cir. 1983) (hereinafter "NTEU I"), the Authority
found that the union failed to meet its obligation under section
7114(a)(1) of the Statute when it (1) posted at various locations copies
of a memorandum stating that it would not furnish attorneys to represent
nonmembers although it would provide attorney representation to members;
and (2) implemented that policy by denying attorney representation to
nonmembers. The union's policy did not distinguish between
representation in matters within its authority as exclusive
representative and matters which were not within that authority, and the
Authority's decision referenced no such distinction.
The second Authority case relied on by the Judge is American
Federation of Government Employees, AFL-CIO, 17 FLRA 446 (1985),
petition for review filed sub nom. AFGE v. FLRA, No. 85-1333 (D.C. Cir.
June 5, 1985) (hereinafter "AFGE"). In that case, the complaint alleged
that the union breached its duty of fair representation when it charged
non-member employees disparate fees to participate in a class action
lawsuit under the Back Pay Act. The Administrative Law Judge
recommended that the complaint be dismissed, stating that the duty of
fair representation attaches only in "those proceedings that are in the
sole control of the union by virtue of its certification . . . ." Id. at
459. The Authority disagreed, stating that when a union represents unit
employees in "any matter which affects their conditions of employment,"
it has the duty to represent them fairly and without regard to union
membership. Id. at 447. The Authority cited its previous decision in
NTEU I and described the holding of that decision to be that the
furnishing of attorney representation "on a non-discriminatory basis in
removal actions, both within the agency procedures as well as before the
Merit Systems Protection Board" (MSPB) is encompassed within a union's
duty under section 7114(a)(1) of the Statute. Id.
The Judge also relied on the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 916, 18 FLRA 5
(1985), rev'd sub nom. AFGE, Local 916 v. FLRA, 812 F.2d 1326 (10th Cir.
1987) (hereinafter "AFGE, Local 916"), where the Authority found that
the union's "policy of refusing to provide representation for nonmembers
in proceedings before the (MSPB) while providing such representation for
members" violated the Statute. Id. The Authority cited both the NTEU I
and the AFGE decisions as support for its conclusion. The court's
decision in this case is discussed in the next section of this analysis.
Although the Judge did not rely on the Authority's decision in
National Treasury Employees Union and National Treasury Employees Union
Chapter 121, 16 FLRA 717 (1984), rev'd sub nom. NTEU v. FLRA, 800 F.2d
1165 (D.C. Cir. 1986) (hereinafter "NTEU II"), it is also relevant to
this discussion. The Authority stated that the facts and positions of
the parties in NTEU II were "substantially identical" to those in the
earlier NTEU I decision. 16 FLRA at 718. The Authority found that the
union's policy of posting and implementing a policy of denying attorney
representation to non-member employees while providing such
representation to members involved in removal actions at the MSPB
violated the Statute. The court's decision in NTEU II is also discussed
in the next section of the analysis.
The parties' exceptions to the Judge's decision in the case now
before us center on the court's decision in NTEU II.
B. Court Decisions
The Authority's decision in NTEU I was affirmed by the District of
Columbia Circuit. NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983). The
court held that the duty of fair representation applied "whenever a
union is representing bargaining unit employees either in contract
negotiations or in enforcement of the resulting collective bargaining
agreement." Id. at 1406. The court also characterized the attorney
representation at issue in that case as pertaining "directly to
enforcement of the fruits of collective bargaining." Id. at 1407.
The Authority's decision in NTEU II was reversed by the District of
Columbia Circuit. NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986). First,
the court noted that the Administrative Law Judge had "assumed without
deciding that the NTEU had no duty to represent any employee before the
MSPB, but held that if the NTEU provided representation to union
members, it must provide equal representation to nonmembers." Id. at
1167. Secondly, the court reviewed the history of the doctrine of the
duty of fair representation in the private sector. It stated that the
doctrine was first formulated in Steele v. Louisville & Nashville R.R.,
323 U.S. 192 (1944), where the Supreme Court "repeatedly rooted that
duty in the powers conferred upon the union by statute, the powers
belonging to the union as exclusive representative." 800 F.2d at 1169.
The court stated that the MSPB procedures involved in the case before it
were not controlled by the union and that the affected employee had
"actively pursued his statutory appeal rights and won." Id. at 1170.
The court concluded that "(i)f this were a private sector case, it would
seem clear that the union has not violated its duty of fair
representation because the rationale that gives rise to that duty does
not apply here." Id.
The court rejected the Authority's argument that the Statute enforces
a duty of nondiscrimination which is broader than that of private sector
fair representation, a duty that extends to all matters affecting
conditions of employment. The court stated that "Congress adopted for
government employee unions the private sector duty of fair
representation." Id. at 1171. Finally, the court considered and
rejected the Authority's argument that the court's previous decision in
NTEU I was dispositive of the case. The court stated that its NTEU I
decision "clearly proceeds on a rationale that supports the position
here of the NTEU, not that of the FLRA." Id. at 1172. It emphasized
that the NTEU I decision concerned representation in contract
negotiations or the enforcement of a collective bargaining agreement.
The Authority's decision in AFGE, Local 916 was reversed by the U.S.
Court of Appeals for the Tenth Circuit. 812 F.2d 1326 (10th Cir. 1987).
Citing the result and reasoning of the court's decision in NTEU II, the
court stated that "'fair representation' means that when a union uses a
power which it alone can wield, it must do so for the benefit of all
employees within its bargaining unit." Id. at 1328. It noted that if an
employee pursues a statutory appeal procedure, the employee is entitled
to choose a representative, and that a union has no power to "preclude
that right or to insist upon appearing for the employee if the employee
elects to pursue a statutory appeal procedure." Id. The court found
that if "the union does not have an exclusive power that can be used
contrary to the interests of the employee, there is no basis for
requiring the union to furnish its services." Id. Accordingly, the
court concluded that in this context, "the fundamental reason for
applying the doctrine of fair representation does not exist." Id.
VI. Analysis and Conclusions
A. Analytical Framework in This and Future Cases
We have reexamined the scope of the duty of fair representation under
the Statute. We now conclude, in agreement with the court in NTEU II,
that "Congress adopted for government employee unions the private sector
duty of fair representation." 800 F.2d at 1171. In our view, the manner
in which the duty is expressed in section 7114(a)(1) closely parallels
the judicial formulation of the duty in the private sector. Similarly,
the function and significance of the duty in the labor-management
relations system created by the Statute parallels that of the duty in
private sector labor-management relations. Moreover, there is no
indication in the legislative history of the Statute that Congress
intended the scope of the duty under section 7114(a)(1) to differ from
that in the private sector. Compare, for example, the situation
involving employee rights to representation under section 7114(a)(2)(B),
where Congress "specifically intend(ed) that future court decisions
interpreting the right in the private sector will not necessarily be
determinative for the Federal sector." H.R. Rep. No. 1717, 95th Cong. 2d
Sess. 156 (1978), reprinted in Committee on Post Office and Civil
Service, House of Representatives, 96th 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 824 (1979). Accordingly, we agree with the court in AFGE, Local 916
that "the roots of the duty of fair representation should coincide for
both public and private labor unions." 812 F.2d at 1327. It is
necessary, therefore, to discuss the origins of the duty in the private
sector.
In Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202
(1944), the Court held that under section 2 of the Railway Labor Act, 45
U.S.C. Section 142, a bargaining representative "has the duty to
exercise fairly the power conferred upon it in behalf of all those for
whom it acts, without hostile discrimination against them." That section
of the Railway Labor Act provides in pertinent part that "(t)he majority
of any craft or class of employees shall have the right to determine who
shall be the representative of the craft or class . . . ." The Court
noted that unit members "cannot bargain on behalf of themselves as to
matters which are properly the subject of collective bargaining . . . ,"
and concluded that "so long as a labor union assumes to act as the
statutory representative of a craft, it cannot rightly refuse to perform
the duty, which is inseparable from the power of representation
conferred upon it, to represent the entire membership of the craft." Id.
at 200, 204.
Subsequently, the Court held that the same duty which was implicit in
the Railway Labor Act was required under the National Labor Relations
Act (NLRA). Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Syres v.
Oil Workers International Union, Local 23, 350 U.S. 892 (1956),
reversing and remanding per curiam 223 F.2d 739 (5th Cir. 1955). In
discussing the basis for the duty under the National Labor Relations
Act, the Court has stated that the "undoubted broad authority of the
union as exclusive bargaining agent in the negotiation and
administration of a collective bargaining contract is accompanied by a
responsibility of equal scope, the responsibility and duty of fair
representation." Humphrey v. Moore, 375 U.S. 335, 342 (1964).
The linkage between a union's rights to act as exclusive
representative and its duty of fair representation has been emphasized
by the Court. In Vaca v. Sipes, 386 U.S. 171, 182 (1967), the Court
stated the following:
The collective bargaining system as encouraged by Congress and
administered by the NLRB of necessity subordinates the interests
of an individual employee to the collective interests of all
employees in a bargaining unit. This Court recognized in Steele
that the congressional grant of power to a union to act as
exclusive collective bargaining representative, with its
corresponding reduction in the individual rights of the employees
so represented, would raise grave constitutional problems if
unions were free to exercise this power to further racial
discrimination. Since that landmark decision, the duty of fair
representation has stood as a bulwark to prevent arbitrary union
conduct against individuals stripped of traditional forms of
redress by the provisions of federal labor law. (Citations
omitted.)
It is clear, therefore, that the duty of fair representation in the
private sector is an obligation which stems from a labor union's
statutory rights as an exclusive representative of bargaining unit
employees.
As stated above, we conclude that section 7114(a)(1) is intended by
Congress to incorporate the private sector duty. As a result, we will
analyze a union's responsibilities under section 7114(a)(1) in this and
future cases in the context of whether or not the union's
representational activities on behalf of employees are grounded in the
union's authority to act as exclusive representative. Where the union
is acting as the exclusive representative of its unit members, we will
continue to require that its activities be undertaken without
discrimination and without regard to union membership under section
7114(a)(1). We will not, however, extend those statutory obligations to
stiuations where the union is not acting as the exclusive
representative, nor will we continue to decide these cases based on
whether or not the union's activities relate to conditions of employment
of unit employees. Previous Authority decisions to the contrary will no
longer be followed.
B. Application of the Standard in This Case
The information provided by the Respondent to its unit members, which
forms the basis for the complaint in this case, related to the
conditions under which members and nonmembers would be represented by
OEA in a lawsuit concerning their status as Federal employees. There is
no indication in the record that the representation of these employees
was grouned in any way in the Respondent's role as exclusive
representative. Indeed, like the situation addressed by the court in
NTEU II, where the affected employee hired private counsel and
ultimately prevailed in his appeal to the MSPB, nonmembers in this case
could undoubtedly have retained counsel and filed a similar lawsuit.
Further, nothing in the record indicates that the parties' collective
bargaining agreement addressed or defined the employees' status as
Federal employees. In this regard, we reject as unsubstantiated the
Administrative Law Judge's conclusion that the lawsuit related to
"enforcement of the fruits of collective bargaining . . . ." ALJ
Decision at 11.
In these circumstances, we conclude that the Respondent did not
violate the Statute when it communicated to unit members that
representation in the lawsuit would differ depending upon union
membership. We do not decide whether the nature of the communications,
specifically their accuracy, could be the bases for violations of the
Statute. That matter was not decided by the Judge and was not raised in
exceptions.
ORDER
The complaint in this case is dismissed.
Issued, Washington, D.C., September 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 4-CO-60004
FORT BRAGG ASSOCIATION OF EDUCATORS, NATIONAL EDUCATION ASSOCIATION,
FORT BRAGG, NORTH CAROLINA
Respondent
and
FORT BRAGG DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, FORT BRAGG,
NORTH CAROLINA
Charging Party
Hung T. Nguyen, Esquire
For the Respondent
Mr. Dale Glendening
For the Charging Party
Regina Kane, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether Fort
Bragg Association of Educators, National Education Association
(hereinafter referred to as "Union") by its newsletter and/or at a
general membership meeting, open to all members of the bargaining unit,
indicated that dues-paying members of the Union would received
preferential treatment in a lawsuit brought by the Overseas Education
Assocation, (hereinafter referred to as OEA), another labor
organization, in violation of Section 16(b)(1) of the Statute. This
matter was initiated by a charge filed on November 12, 1985 (G.C. Exh.
1(a)) which alleged violation of Sections 16(b)(1) and (8) of the
Statute. The Complaint and Notice of Hearing issued on January 31, 1986
(G.C. Exh. 1(c)); alleged violation of Section 16(a)(1) only; and set
the hearing for February 25, 1986. By Order dated February 3, 1986
(G.C. Exh. 1(g)), the hearing was rescheduled for April 9, 1986,
pursuant to which a hearing was duly held on April 9, 1986, at Fort
Bragg, North Carolina, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
presented, to examine and cross-examine witnesses, and were afforded the
opportunity to present oral argument. At the conclusion of the hearing
May 9, 1986, was fixed as the date for mailing post-hearing briefs,
which time was subsequently extended, upon timely motion of the General
Counsel, with which the other parties joined, for good cause shown, to
June 9, 1986. General Counsel and the Union each timely filed a brief,
received on, or before, June 9, 1986, which have been carefully
considered. Upon the basis of the entire record, /2/ including my
observation of the witnesses and their demeanor, I make the following
findings and conclusions:
Findings
1. The Union is the exclusive bargaining representative for a unit
which includes certain employees of eight schools of the Fort Bragg
Department of Defense Dependents Schools, located at Fort Bragg, North
Carolina (Albritton Middle School and Elementary, Holbrook, Browley,
Murray, Pope, Butner, Irwin and McNair (Tr. 16) (G.C. Exh. 1(a), Par. 4,
1(d), Par. 4; (Tr. 16)). There are 275 teachers in the bargaining unit
of whom 186 are members of the Union (Tr. 18). The Union is a paper
affiliate of the North Carolina Association of Educators (NCAE) and
Union members' dues are paid directly to NCAE (Tr. 35). The National
Education Association (NEA) is an umbrella organization composed of
numerous affiliates, such as NCAE and the Overseas Education Association
(OEA) (Tr. 70). There is no contractual arrangement or formal
affiliation between the Union and OEA (Tr. 72), and, although a meeting
of OEA, NCAE, and the Union was held regarding a fee for service
arrangement (G.C. Exh. 3; Tr. 78), no fee for service arrangement had
been finalized (Tr. 21, 78, 80).
2. Mr. Ronald R. Austin, Executive Director and General Counsel of
OEA since November, 1978 (Tr. 69), testified that when the West Point
Dependent Schools became members of OEA it was discovered that while
they, like the Fort Bragg Schools, were Section 6 schools fully funded
by the federal government and the teachers are federal employees,
because Section 6 teachers are hired on a yearly basis with personal
service contracts they do have RIF rights, that retirement rights,
provided for by Army regulations, would not be honored by OPM, etc., and
accordingly, that OEA, prior to the summer of 1985, had decided to seek
relief in the United States District Court.
3. In September, 1985, Mr. Austin was invited by Ms. Elizabeth Kay
Stuertz, President of the Union, to address a general meeting of
teachers at Fort Bragg (Tr. 75). Mr. Austin testified that there were
60 or 70 people present at the meeting held on September 9, 1985 (Tr.
63), and that he,
" . . . outlined to them in general terms the fact that we were
proceeding with the suit and that at this particular time, we are
-- our plan at that time was to have named Plaintiffs in the suit;
/3/ and I told them that we would be willing to bring into this
suit any union members that we found in Section 6 schools on a
non-fee basis, that we would, since we were going in anyway that
we would do that and that if there were any non-members who wanted
to join the suit, some financial arrangement would have to be made
where they would have to pay some kind of pro-rated or share of
the cost.
"Q. At the September meeting, did you, do you recall having
ever said that non-union members would not be allowed to join the
lawsuit?
"A. No. Non-union members would not be allowed to join
without paying a fee. It was a question of who would get it for
free and the, if the person were a NEA member then we were willing
to assume the costs . . . ." (Tr. 76).
4. In October, 1985, the Union's newsletter, entitled "bragg
happenings" (G.C. Exh. 3), was distributed to all bargaining unit
employees via the individual employees' school mailboxes (Tr. 19-21).
This newsletter was co-authored by Ms. Stuertz and by Ms. Barbara Jones,
Union Vice President/President Elect (Tr. 20, 88) and stated in the
portion entitled, "Message From the President", in part, as follows:
" - Meeting held with OEA/NCAE and FBAE regarding fee for
service arrangement. We will continue with our present
arrangement receiving legal services from OEA with a retroactive
payment pending a final decision, following discussions with NEA.
" - OEA is filing suit to have all Section 6 personnel under
the Department of the Army declared federal employees. This will
guarantee Tenure, Grievance and RIF, as well as benefits such as
retirement. In accordance with our fee for service arrangement,
OEA will list all our Dues-Paying Members as plaintiffs so that if
the court decision is in our favor, the decision will be
retroactive to the date all named members were employed. For
those people who are not Dues-Paying Members, they will be federal
employees only from the date of the court decision. These
Non-Paying Members of the union would have to hire their own
attorney to file suit to have their federal employment declared
retroactive to the date they began working. Thus, people who have
been Non-Dues Paying Members, unless they hire their own attorney
and file suit could stand to lose all previous time in grade
presently applied to retirement. It is definitely in your best
interest to be a Dues-Paying Member of FBAE. There is still time
to join, you have until December 15, 1985. For those who say they
can't afford it - the truth is you can not afford not to join.
Payroll deductions make it easy on the budget. (G.C. Exh. 3)
(Emphasis in original).
5. Ms. Jones testified that she had obtained the information for the
newsletter from OEA, although Mr. Austin testified that he had, "nothing
to do with the document" (Tr. 77). Nevertheless, the newsletter
accurately reflected what Mr. Austin stated at the meeting with one
exception: /4/ the newsletter failed to state that he said, "Non-union
members would not be allowed to join without paying a fee." Mr. Austin
conceded that he said, " . . . the Army prospectively would probably
change the rule for everyone . . . (but) there was some risk that they
may have to get their own attorney if they are not a named plaintiff to
correct that period of time from the time that the Court ruled favorably
to us back to the time that they were first hired . . . ." (Tr. 79).
6. Ms. Mary Blanton, a teacher at Albritton Middle School (Tr. 40),
testified that she joined the Union in November, 1985, after reading the
October, 1985, "bragg happenings." (Tr. 40, 41). Ms. Blanton testified
that she joined the Union because the newsletter articles on the lawsuit
gave the impression that by virtue of the arrangement between the Union
and OEA she was far better off joining the Union for $180.00 in dues as
opposed to hiring her own attorney or losing the retroactive benefits of
the lawsuit (Tr. 42-43). Ms. Judith Osborne, a teacher at Holbrook
School (Tr. 44) and Ms. Faye Byrd, a teacher at Albritton Middle School
(Tr. 49), each testified that they read the article concerning the
lawsuit in the October, 1985, "bragg happenings", which they discerned
as an attempt to coerce them to join the Union (Tr. 46, 51). Ms.
Osborne testified that, " . . . my impression was that it was an
attempt, first of all, to treat dues paying members differently than
those of us who were non-dues-paying members and also that it was an
attempt to coerce those of us who were not union members into joining
the union." (Tr. 46). Ms. Byrd testified, "I was very concerned; I was
upset about it. I felt, I was initially concerned by what it said about
my retirement; I had 19 years in the system; and I felt very angry
because of the paragraph; and I thought that it was very intimidating;
I thought that it was an effort to get people to join the Association."
(Tr. 51). /5/
7. On November 4, 1985, Ms. Stuertz conducted the next general
membership meeting following the issuance of the October, 1985 "bragg
happenings" (Tr. 23). This meeting was held at Albritton Middle School
and about 30 employees attended (Tr. 23-24). Ms. Stuertz said she
thought some "non-dues paying members" were present (Tr. 24). At this
meeting there was a discussion concerning the OEA lawsuit and the
October, 1985, "bragg happenings". Ms. Stuertz testified that, at this
time, she explained that non-members of the Union who desired inclusion
in the suit would be required to pay a fee and that they should contact
Mr. Nguyen to ascertain how much OEA would charge them (Tr. 24-25). Ms.
Stuertz did not mention the amount of the fee as she " . . . didn't know
the amount" (Tr. 25). Ms. Stuertz testified that she was later told by
Mr. Nguyen that the fee for inclusion of each non-union employee would
be $500.00 (Tr. 31).
Conclusions
There is no dispute that in September, 1985, the Union invited Mr.
Austin, Executive Director and General Counsel of OEA, to address a
general meeting of teachers at Fort Bragg; that Mr. Austin did address
some 60 to 70 people present at the September 9, 1985, meeting called by
the Union; and that Mr. Austin stated at the meeting that OEA would
represent as named plaintiffs all members of the Union without a fee,
but any non-member would have to pay a fee, later determined to be
$500.00 for each non-Union employee. Nor is there any dispute that the
Union in its October, 1985, newsletter, "bragg happenings", informed all
unit employees that if they were, or became dues-paying members of the
Union by December 15, 1985, a favorable decision in the OEA lawsuit
concerning tenure, grievance, RIF, and retirement rights would be
retroactive to their first date of employment; but, if they were not
dues-paying members, they would be federal employees only from the date
of the court decision and would have to hire their own attorney to file
suit to have their federal employment declared retroactive to the date
they began working. Significantly, the newsletter did not offer
non-Union members of the bargaining unit the option of joining the
lawsuit if they paid a fee to OEA, but conditioned participation in the
OEA lawsuit on Union membership. Since less than a third of the members
of the bargaining unit had been present at the meeting addressed by Mr.
Austin, but the newsletter had been deposited in the individual mail box
of each bargaining unit employee, the Union's newsletter constituted the
only direct knowledge the overwhelming majority of bargaining unit
employees had of their right to join in the OEA lawsuit which, as the
Union had made plain, was dependent on Union membership, i.e., that
non-Union members could not be represented in OEA's lawsuit. Had the
Union filed the lawsuit, or had the Union engaged the services of an
attorney to file the lawsuit, there would be no doubt whatever that it
violated its duty under Section 14(a)(1) of the Statute, to represent "
. . . the interests of all employees in the unit it represents without
discrimination and without regard to labor organization membership",
either by the exclusion of all non-Union members of the bargaining unit
from the lawsuit, as it stated in its October, 1985, newsletter, or by
charging non-Union members disparate fees if they joined the lawsuit, as
it asserted it informed employees in November, 1985. National Treasury
Employees Union, 10 FLRA No. 91, 10 FLRA 519 (1982), aff'd 721 F.2d 1402
(D.C. Cir. 1983); American Federation of Government Employees, AFL-CIO,
17 FLRA No. 72, 17 FLRA 446 (1985); American Federation of Government
Employees, AFL-CIO, Local 916, 18 FLRA No. 2, 18 FLRA 5 (1985).
The Union asserts, in essence, that because OEA, an organization with
which it had no affiliation and no fee for services arrangement, had
exclusive control over the lawsuit and that OEA, not it, fixed the
conditions for participation in its, OEA's lawsuit, it, the Union,
committed no violation of the Statute by "reporting information offered
by . . . OEA . . . ." (Union's Brief pp. 3, 6). I do not agree. First,
while it is true that there was no direct affiliation between the Union
and OEA in the sense of membership, there was, most definitely, a
relationship, in the sense of services. Thus, Ms. Barbara H. Jones,
Vice President/President Elect, whose testimony I fully credit,
testified that,
" . . . We (the Union) are affiliated with the North Carolina
Association of Educators. (Sic) because the State of North
Carolina does not have collective bargaining, NCAE cannot give us
any money for services, they are prohibited by law in terms of any
dealing with collective bargaining. Therefore, NEA, the National
Education Association of which both NCAE and OEA are members; you
know, NEA is the parent organization; NEA gave a grant to OEA for
us to receive services, you know, regarding legal kinds of
services.
"However, NCAE came in and said that this is not enough for the
services that we needed . . . and so we were trying to work out an
arrangement where part of our dues would be paid to OEA, and NCAE
would have what we call 'governing rights'; we would remain
members of NCAE but part of our dues would go to OEA for legal
services . . . ." (Tr. 101).
While a fee for services, over and above the grant by NEA, may not
have been consummated, OEA had received a grant of money to perform
services for the Union so that its "offer", to represent members of the
Union without cost in the lawsuit, was not wholly gratuitous even
assuming that the OEA grant for services did not specifically include
the lawsuit. Indeed this was implicit in Mr. Austin's testimony that, "
. . . if the person were a NEA member than we were willing to assume the
costs . . . ." (Tr. 76).
Second, even though Mr. Austin testified that no fee for services
arrangement had been consummated, whereby a portion of the Union's dues
would be paid to OEA, the record is clear that such arrangement had been
discussed and that payment by the Union to OEA through NCAE for services
was clearly contemplated by all parties, i.e., the Union, NCAE, NEA and
OEA; but whether there was, or was not a fee for service arrangement,
/6/ the Union in its October, 1985, newsletter represented that there
was and that dues-paying members would be made plaintiffs pursuant to
its fee for service arrangement with OEA. Thus, the newsletter stated,
"In accordance with our fee for service arrangement, OEA will
list all our Dues-Paying Members as plaintiffs so that if the
court decision is in our favor, the decision will be retroactive
to the date all named members were employed.
Neither OEA nor the Union ever made any statement to employees which
disclaimed, withdrew, or recanted this representation (See, Union Exh.
1, February, 1986 ("bragg happenings").
Third, the Union did not passively "report information". Quite to
the contrary, the Union not only was the moving force in inviting Mr.
Austin, in September, and Mr. Nguyen, in November, to address employees,
and a willing participant in the joint venture, but the Union informed
all employees by its October, 1985, newsletter that all dues-paying
members would be named as plaintiffs by OEA in its lawsuit," in
accordance with our fee for service arrangement." It was the Union which
informed all employees in the same October, 1985, newsletter that
non-members of the Union could not be represented in the OEA lawsuit,
stating: "These Non-Paying Members of the union would have to hire
their own attorney to file suit to have their federal employment
declared retroactive . . . "; that " . . . poeple who have been
Non-Dues Paying Members, unless they hire their own attorney and file
suit could stand to lose all previous time in grade presently applied to
retirement." And it was Union President Stuertz who, at the meeting of
November 4, 1985, reiterated that dues-paying members would be included
in the lawsuit without fee, by clear inference pursuant to the prior
representation, "In accordance with our fee for service arrangement,"
/7/ but, recanting the Union's statement in its October, 1985,
newsletter that non-Union members could not participate under any
circumstances in the OEA lawsuit, and now stating that non-dues-paying
members could participate in the OEA lawsuit by paying a fee. Although
the Union did not know the amount of the fee on November 4, 1985, Ms.
Stuertz said she explained that non-members would have to contact Mr.
Nguyen to ascertain how much OEA would charge (Tr. 24-25), when the
Union learned that the fee for non-members was grossly disparate
($500.00), the Union did nothing to disavow or disassociate itself from
its joint venture with OEA.
Accordingly, I conclude that the Union violated Section 16(a)(1) of
the Statute when, by its October, 1985, newsletter, it informed all
bargaining unit employees that only dues-paying members would be
represented, "In accordance with our fee for service arrangement (with
OEA)", in a lawsuit to be brought by OEA which " . . . would guarantee
Tenure, Grievance, and RIF, as well as benefits such as retirement".
Because the Union denied participation, or representation of the rights,
of non-Union members in the lawsuit in which it stated it was
participating with OEA pursuant to "our fee for service arrangement",
the Union plainly violated its obligation under Section 14(a)(1) of the
Statute to represent, " . . . the interests of all employees in the unit
it represents without discrimination and without regard to labor
organization membership." A suit which sought to "guarantee Tenure,
Grievance and RIF, as well as benefits such as retirement" /8/ obviously
related to enforcement of the fruits of collective bargaining and the
Union may not provide such a benefit exclusively for Union members. As
the Court of Appeals for the District of Columbia Circuit stated in
NTEU, supra,
"Attorney representation here pertains directly to enforcement
of the fruits of collective bargaining. Therefore, as exclusive
bargaining agent, the Union may not provide such a benefit
exclusively for Union members." (721 F.2d at 1406-1407).
See, also, American Federation of Government Employees, AFL-CIO,
Local 916, supra.
I further find that the Union violated Section 16(b)(1) of the
Statute when, on November 4, 1985, and thereafter, it advised employees
that, pursuant to the arrangement between it and OEA, dues-paying
members of the Union would be included in the OEA suit without fee, but
that non-Union members of the bargaining unit would be required to pay a
fee which, as subsequently determined and employees were then advised,
would be $500.00 per employee. As the Authority stated in American
Federation of Government Employees, AFL-CIO,
" . . . by discriminating between members and non-members in
assessing attorney's fees for unit employees participating in a
class action lawsuit . . . (Respondent) failed to meet its
obligations under section 7114(a)(1) of the Statute and thereby
violated section 7116(b)(1) and (8) of the Statute." (17 FLRA at
448).
Having found that the Union violated Section 16(b)(1) of the Statute,
I recommend that the Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section
2423.29, the Authority hereby orders that Fort Bragg Association of
Educators, National Education Association, Fort Bragg, North Carolina,
shall:
1. Cease and desist from:
(a) Affording different standards of employee representation to
employees in the unit of exclusive representation solely on the
basis of whether such employees are members of the Fort Bragg
Association of Educators, National Education Association.
(b) Interfering with, restraining, or coercing unit employees
in the exercise of their right to refrain from joining, freely and
without fear of penalty or reprisal, the Fort Bragg Association of
Educators, National Education Association, or another labor
organization.
(c) In any like or related manner interfering with,
restraining, or coercing unit 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) Represent all employees in its unit of exclusive
recognition without discrimination and without regard to
membership in the Fort Bragg Association of Educators, National
Education Association.
(b) Post at its business office, at its normal meeting places,
and at each of the Fort Bragg Schools where notices to employees
are customarily posted, 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 President of
the Fort Bragg Association of Educators, National Education
Association, and they shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
places where notices to members and to other bargaining unit
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) Submit appropriate signed copies of such Notices to the
Superintendent of Schools, Fort Bragg Schools, Fort Bragg, North
Carolina, for posting and/or distribution /9/ to members of the
bargaining unit, as the Superintendent may elect. If posted by
the Superintendent, they shall be posted in conspicuous places
where unit employees are located and shall be maintained for a
period of 60 consecutive days from the date of posting. If
distributed to members of the bargaining unit, the Superintendent
shall make a single distribution to the individual school mail
boxes of all members of the bargaining unit and the Notice must
not be accompanied by any comment or letter of transmittal.
(d) 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, withint 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: August 29, 1986
Washington, D.C.
FOOTNOTES
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(b)(1) will be referred to,
simply, as "Section 16(b)(1)."
(2) General Counsel filed a Motion to Correct Transcript, to which no
opposition was filed, and the motion is granted and the transcript is
hereby corrected as set forth in the Appendix.
(3) Mr. Austin testified that when suit was actually filed, on
December 3, 1985, in the Southern District of New York, for very
practical reasons there were only six teachers, three from West Point
and three from Fort Stewart, and OEA, itself, as named Plaintiffs (Tr.
82).
(4) Mr. Austin quibbled about "In accordance with our fee for service
arrangement" asserting that no such service arrangement had been
consummated (Tr. 85); nevertheless, he acknowledged the statement, "we
will continue with our present arrangement receiving legal services from
OEA with a retroactive payment pending a final decision, following
discussions with NEA" and made no assertion that such discussions had
not taken place or that this was not accurate (Tr. 80) but only that no
such service arrangement had been consummated (Tr. 85); but he asserted
that the fee for service had nothing to do with the lawsuit (Tr. 80;
see, also, Tr. 101).
(5) The October, 1985, "bragg happenings" also contained the
following message:
"Note: ATTENTION UNIT MEMBERS
This is your LAST COMPLIMENTARY NEWSLETTER. Newsletters are a
fringe benefit for members who pay dues." (G.C. Exh. 3).
Even though Ms. Stuertz testified that this policy never took effect
(Tr. 22, 23), neither Ms. Osborne nor Ms. Byrd recalled receiving
another newsletter until February, 1986 (Tr. 46, 52, 53).
(6) General Counsel asserts that, "The facts are undisputed that no
such fee for service arrangement existed at the time of the newsletter's
publication, and that the co-authors of the newsletter knew this to be
the case. (footnote omitted). One might conclude from this apparently
deliberate or at least irresponsible misstatement of facts that
Respondent (Union) was attempting to heighten the anxiety level of
teachers regarding the lawsuit . . . ." (General Counsel's Brief, p. 9,
and n. 8, citing Vacca v. Sipes, 386 U.S. 171, 177 (1967). I agree that
a union's misrepresentation to bargaining unit employees may, in
appropriate circumstances, constitute a breach of its duty of fair
representation, but in this case, it is the representation of the Union
to employees which forms the basis of the unfair labor practice
allegation, not the misrepresentation.
(7) At the hearing, counsel for Respondent amended its answer to
admit that portion of Paragraph 5(b) of the Complaint which reads, " . .
. but that employees who were not dues-paying members would be required
to pay a fee for inclusion in the lawsuit" (Tr. 11). However, contrary
to the assertion of General Counsel (General Counsel's Brief, p. 10, n.
9), Respondent did not admit that portion of Paragraph 5(b) of the
Complaint which states, in part, " . . . pursuant to the arrangement
between Respondent and OEA."
(8) The Union's assertion that because retirement is excluded from
the grievance procedure (G.C. Exh. 2, Art. 16, Section 4b), " . . . the
retirement issued is not grievable and thus, not an issue involving the
maintenance of the collective bargaining agreement" (Union's Brief, p.
4) is without merit. While it is true that retirement is excluded as a
grievable matter under the parties Agreement, the lawsuit, as Mr. Austin
stated, concerned a quite different issue as concerned retirement,
namely whether, because of their employment under personal service
contracts, Section 6 schools employees' retirement rights, provided for
by Army regulations, would be honored by OPM.
(9) The Union's initial discriminatory notice was through its
newsletter which was distributed to each individual employee's mailbox.
The option for distribution of a copy of the Notice in the same manner
is deemed appropriate in order to permit notification of the Notice in
the same manner.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT afford differing standards of employee representation to
employees in our unit of exclusive recognition solely on the basis of
whether such employees are members of the Fort Bragg Association of
Educators, National Education Association.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the Fort Bragg Association of Educators,
National Education Association, or any other labor organization.
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 represent all employees in our unit of exclusive recognition
without discrimination and without regard to membership in the Fort
Bragg Association of Educators, National Education Association.
. . . (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: Suite 736, 1371 Peachtree Street, N.E., Atlanta,
Georgia 30367, and whose telephone number is: (404) 347-2324.
28 FLRA NO. 117
DOD, Dep't of the Air Force, and Dep't of the Air Force, Carswell Air
Force Base, Tex., and AFGE, Local 1364, Case No. 6-CA-70108 (Decided
September 4, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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 Carswell Air Force Base 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 judge ruled
that all arguments raised by the base against the disclosure of the
information were disposed of by Authority precedent.
Case No. 6-CA-70108
UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE CARSWELL AIR FORCE BASE, TEXAS
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 1364
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that Respondent Department of the Air
Force, Carswell Air Force Base had engaged in certain 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. He recommended that Respondent Department of the Air Force,
Carswell Air Force Base, be ordered to cease and desist from the unfair
labor practices and take appropriate remedial action. The Judge found
further that Respondent United States Department of Defense, Department
of the Air Force had not engaged in other unfair labor practices alleged
in the complaint, and recommended that portion of the complaint be
dismissed. The Respondents filed exceptions to the Judge's Decision and
the General Counsel filed a brief opposing the exceptions and urging
that the Judge's Decision be adopted in its entirety.
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, the exceptions, and the entire record, we adopt the Judge's
findings, conclusions, and recommended Order.
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 the Air Force, Carswell Air
Force Base, Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American Federation of
Government Employees, AFL-CIO, Local 1364, 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 1364, the exclusive representative 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 American Federation of Government Employees, AFL-CIO,
Local 1364 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, United
States Department of the Air Force, Carswell Air Force Base, Texas, and
shall be posted in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted, and
shall be maintained for 60 consecutive days thereafter. Reasonable
steps shall be taken to ensure that 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 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.
It is FURTHER ORDERED that the Complaint, to the extent that it joins
United States Department of Defense, Department of the Air Force as a
party respondent, be, and it hereby is dismissed.
Issued, Washington, D.C., September 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, Local 1364, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 1364, the exclusive representative 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 VI, Federal Labor Relations Authority, whose address
is: 525 Griffin Street, Suite 926, Dallas, TX 75202 and whose telephone
number is: (214) 767-4996.
Case No.: 6-CA-70108
UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE AND
DEPARTMENT OF THE AIR FORCE CARSWELL AIR FORCE BASE, TEXAS
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1364
Charging Party
Christopher J. Ivits, Esquire
For the General Counsel
James A. Harper, Esquire
For the Respondent
Mr. Carl W. Holt
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on December 29, 1986, by
Local 1364, American Federation of Government Employees, (hereinafter
called the Union or Local 1364), an Amended Complaint and Notice of
Hearing was issued on March 4, 1987, by the Regional Director for Region
VI, Federal Labor Relations Authority, Dallas, Texas. The Amended
Complaint alleges that the United States Department of Defense
Department of the Air Force, (hereinafter called Respondent Air Force),
and Department of the Air Force Carswell Air Force Base, Texas,
(hereinafter called Respondent Carswell), violated Section 7116(a)(1),
(5) and (8) of the Federal Service Labor-Management Relations Statute
(hereinafter called the Statute), by refusing to provide the Union with
the names and home addresses of bargaining unit employees. /1/
A hearing was held in the captioned matter on April 29, 1987, in
Dallas, Texas. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. /2/ The General Counsel and the
Respondent submitted post-hearing briefs which have been duly
considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
The Union is the exclusive representative of a bargaining unit
composed of "all non-supervisory, non-professional appropriated fund Air
Force employees serviced by the Central Civilian Personnel Office,
Carswell Air Force Base, Texas . . . "
The parties stipulated as follows:
(1) Marlys Karsh is the labor relations officer for Carswell
Air Force Base and as such is a representative of Carswell Air
Force Base.
(2) On or about November 12, 1986, the American Federation of
Government Employees, Local 1364, requested from Carswell Air
Force Base the names and home addresses of bargaining unit
employees.
(3) Carswell Air Force Base denied this request on or about
November 12, 1986.
(4) Carswell Air Force Base does not maintain a list of home
addresses for bargaining unit employees. A list could be created
by merging two computer systems. It would take about eight hours
of computer time to merge the lists.
(5) The finance officer does not mail leave -- earnings and
leave statements to employees' home addresses. The computer
system of the finance office would have to be merged with the
personnel computer to create such a list.
(5) The list does not constitute guidance, advice, counsel or
training for management officials or supervisors related to
collective bargaining.
Sometime in February 1987, Mr. Carl Holt, a National Representative
for the AFGE and Mr. Larry Johnson, President of Local 1364, met with
Marlys Karsh, a Labor Relations Specialist, and Colonel Charles A.
Jones, Commander, Carswell Air Force Base, for purposes of discussing
labor relations. During the course of the meeting Holt raised the
matter of the Union's request for the names and home addresses of
bargaining unit members and was informed by Karsh that "the Union was
not going to get the names because the -- on instructions from the Air
Force." When Holt asked why they had not been informed at an earlier
date of Respondent Carswell's position, Commander Jones told Karsh that
the Union was entitled to a response and that a formal response should
be prepared forthwith. Thereafter, by letter dated February 27, 1987,
and bearing the letterhead "Department of the Air Force, Headquarters
7th Combat Support Group (SAC), Carswell Air Force Base, Texas", the
Union was informed that Mr. James Harper of HQ USAF/CLLO is handling the
unfair labor practice involving the refusal of the Respondent to make
the names and home addresses of the unit employees available and that he
was the proper person to contact. /3/
According to Mr. Johnson, the President of Local 1364, who was also
present at the February 1987 labor relations meeting, in reply to Mr.
Holt's inquiry as to when the Union was going to receive the requested
names and home addresses of the bargaining unit employees, Marlys Karsh
stated that "they had received word from Air Force not supply the
information." Although Mr. Johnson "assumed" that they mean't
Headquarters Air Force in Washington, D.C., the record is barred of any
evidence, other than what is cited above, to support such an assumption.
Discussion and Conclusions
The General Counsel relying on the Authority's decision in Farmers
Home Administration, supra, takes the position that Respondent Carswell
violated Sections 7116(a)(1), (5) and (8) of the Statute when it failed
and refused to make the names and home addresses of bargaining unit
employees available to the Union. Alternatively, General Counsel,
relying on the Authority's decision in U.S. Department of the Treasury,
IRS and IRS, Austin District and IRS, Houston District, 23 FLRA No. 100,
contends that the record supports the conclusion that Respondent Air
Force violated Sections 7116(a)(1) and (5) of the Statute when it
interfered with the bargaining relationship between the Union and
Respondent Carswell and directed Carswell not give the Union the names
and home addresses of the bargaining unit employees. Inasmuch as
Respondent Air Force was responsible for the actions of its subordinate
Carswell is not making the names available, the General Counsel would
further find that Respondent Air Force violated Sections 7116(a)(1), (5)
and (8) of the Statute.
Respondent's Counsel, who acknowledges the Authority's findings to
the contrary, contends that the disclosure of the home addresses of the
bargaining unit employees would violate the Privacy Act. Although not
argued in his post-hearing brief, it appears that Counsel for the
Respondent also challenges the necessity for the names since he
attempted to prove at the hearing that there were other alternative
means of communication available to the Union.
In agreement with the General Counsel I find that the Authority's
decision in Farmers Home Administration, Finance Office, St. Louis,
Missouri, supra, is dispositive of all Respondent's contentions and/or
defenses. Thus, the Authority held that release of the names and home
addresses of unit employees is not prohibited by the Privacy Act, that
regardless of the extence of alternative means of communication the
names and home addresses of unit employees should be supplied to the
Union on request, and, finally, that the exclusive representative need
not offer any explanation as to the reasons it seeks such information
since the Union's need "is so apparent and essentially related to the
nature of exclusive representation itself . . . ". /4/
Accordingly, based primarily on the Authority's decision in Farmers
Home Administration, Finance Office, St. Louis, Missouri, supra, I find
that Respondent Carswell's refusal to furnish the Union with the names
and home addresses of bargaining unit employees constituted a violation
of Sections 7116(a)(1), (5) and (8) of the Statute.
To the extent that the Complaint, alternatively, alleges that
Carswell's action in refusing to make the home addresses available was
at the direction of Respondent Air Force, I find that the record
evidence fall short of establishing such a fact. Thus, all that the
record shows is that when Carswell representatives were questioned as to
the reasons for the refusal of Carswell to make the requested
information available, they were told that "on instructions from the Air
Force" they did not make the home addresses available. Such
non-specific testimony, standing alone, is insufficient to establish
that Respondent Air Force in Washington, D.C. was responsible for
Carswell's action. This is particularly true in view of the fact that
the record indicates that there are many bases, etc; which carry the
designation "headquarter's U.S. Air Force". Thus, among others, there
is one at Carswell and another at Randolph Air Force Base, Texas.
Accordingly, it is hereby recommended that the Authority dismiss the
Complaint in its entirety to the extent that it names the United States
Department of Defense Department of the Air Force as a respondent and
charges such entity with a violation of Sections 7116(a)(1), (5) and (8)
of the Statute.
Having found that Respondent Carswell violated the Statute by
refusing to supply the Union with the names and home addresses of the
bargaining unit employees, it is hereby recommended that the Federal
Labor Relations Authority adopt the following order designed to
effectuate the purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, 5 U.S.C., Section 7118, it
is ordered that Department of the Air Force Carswell Air Force Base,
Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, Local 1364, the
exclusive representative of a unit of its 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 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 Federal Service Labor-Management Relations
Statute:
(a) Furnish the American Federation of Government Employees,
AFL-CIO, Local 1364, the exclusive representative of a unit of its
employees, the names and home addresses of all employees in the
bargaining unit.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees,
AFL-CIO, Local 1364, are located, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer of Carswell Air Force Base, Texas, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal
Labor Relations Authority, 525 Griffin Street, Suite 926, Dallas,
TX 75202, in writing, within 30 days from the date of this Order,
as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the Complaint, to the extent that it joins
United States Department of the Defense Department of the Air Force as a
party respondent, should be, and hereby is dismissed in its entirely.
/s/ BURTON S. STERNBURG
Administrative Law Judge
Dated: July 15, 1987
Washington, D.C.
FOOTNOTES
(1) According to the Amended Complaint Respondent Carswell allegedly
refused to make the requested information available to the Union
pursuant to instructions from Respondent Air Force.
(2) Based on the Federal Labor Relations Authority's decision in
Farmers Home Administration, Finance Office, St. Louis, Missouri, 23
FLRA No. 101, Respondent was denied the opportunity to put on evidence
which would allegedly establish that the Union had alternative means of
communication with the unit employees.
(3) The record indicates that the initials following Mr. Harper's
name stand for Department of the Air Force, Headquarters United States
Air Force Central Labor Law Office, Randolph Air Force Base, Texas.
(4) Although not specifically raised as a defense by Counsel for the
Respondent, I find the requested material to be "normally maintained"
and "reasonably available" despite the fact that compilation of same
necessitates the merger of two separate computer systems. See, Defense
Mapping Agency, Aerospace Center, St. Louis, Missouri, 24 FLRA No. 5,
wherein the Authority adopted the Administrative Law Judge's conclusion
that the utilization of 40-man hours to compile the home addresses of
bargaining unit employees did not negate a finding that the material was
"readily available".
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
We 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 by the American
Federation of Government Employees, AFL-CIO, Local 1364, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the bargaining unit.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of their rights guaranteed by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 1364, the exclusive representative of a bargaining unit
of our employees, the names and home addresses of all employees in the
bargaining unit.
. . . (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 VI,
whose address is: 525 Griffin Street, Suite 926, Dallas, TX 75202, and
whose telephone number is: (214) 767-4996.
28 FLRA NO. 116
Dep't of the Air Force, Columbus Air Force Base, Columbus Air Force
Base, Miss., and Fed. Firefighters Ass'n, Local 57, and NFFE, Local
1296, Case No. 4-RO-70019 (Decided September 4, 1987)
STATUTE
7112
SUBJECT MATTER INDEX ENTRIES
APPROPRIATE UNITS (7112)
SEVERANCE FROM ESTABLISHED UNIT
REPRESENTATION PROVIDED BY INCUMBENT UNION
"UNUSUAL CIRCUMSTANCES" STANDARD
REPRESENTATION PROCEDURE
NO BASIS FOR GRANTING REVIEW OF REGIONAL DIRECTOR'S DECISION
DISAGREEMENT WITH AUTHORITY POLICY
DIGEST NOTES
The Authority denied a union's application for review of an FLRA
Regional Director's Decision and Order denying the union's petition for
certification of representative. The petitioning union had sought to
represent a unit of employees at the activity. The group of employees
was part of a base-wide unit represented by the intervenor. In
dismissing the petitioning union's application, the Regional Director
had determined that the base-wide bargaining unit remained appropriate,
and that there were no unusual circumstances justifying severance of the
group of employees from the established bargaining unit.
In alleging compelling reasons why the Authority should grant its
application for review, the petitioning union claimed that the Regional
Director's decision had not followed Authority precedent, and that his
finding that the incumbent union had represented the targeted group of
employees adequately and fairly was clearly erroneous. The petitioning
union asked lastly that the Authority reconsider the "unusual
circumstances" standard.
The Authority declined to reconsider the "unusual circumstances"
standard, and ruled that none of the petitioning union's arguments
constituted "compelling reasons" for granting review.
Case No. 4-RO-70019
DEPARTMENT OF THE AIR FORCE, COLUMBUS AIR FORCE BASE, COLUMBUS AIR
FORCE BASE, MISSISSIPPI
Activity
and
FEDERAL FIREFIGHTERS ASSOCIATION, INDEPENDENT, LOCAL 57
Petitioner
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1296
Intervenor
ORDER DENYING APPLICATION FOR REVIEW
I. Statement of the Case
This case is before the Authority on a timely application for review
filed by the Federal Firefighters Association, Independent, Local 57
(FFA) pursuant to section 2422.17(a) of the Authority's Rules and
Regulations. The application seeks review of the Regional Director's
Decision and Order on FFA's petition for certification of
representative. The Activity filed an opposition to FFA's application
for review.
II. Facts
A. Regional Director's Decision
The FFA sought to represent a unit of all nonprofessional General
Schedule employees of the Columbus Air Force Base, Mississippi, Fire
Department, including Fire Captains and supervisory firefighters, GS-6.
Since 1971, these employees have been part of a base-wide unit
represented by the National Federation of Federal Employees, Local 1296
(NFFE).
The Regional Director dismissed FFA's petition. She found that the
established base-wide bargaining unit remained appropriate and that no
unusual circumstances were present to justify the severance of the
petitioned-for employees from the established bargaining unit. In
support of her determination, the Regional Director cited Authority
precedent, including the Authority's decision in Library of Congress, 16
FLRA 429 (1984).
B. Application for Review
In its application, FFA contends that compelling reasons exist within
the meaning of section 2422.17(c) of the Authority's Rules and
Regulations for granting its application. First, the FFA contends that
the Regional Director's decision represents a departure from Authority
precedent. In support of its position, FFA cites the Authority's
decision in Department of the Navy, Naval Station, Norfolk, Virginia, 14
FLRA 702 (1984) and Panama Canal Commission, 5 FLRA 104 (1981). Second,
FFA contends that the Regional Director's decision rests on the
unsubstantiated and erroneous factual conclusion that NFFE fairly and
adequately represents the petitioned-for employees. Finally, FFA
essentially contends that the Authority should reconsider its policy
requiring "unusual circumstances" to justify separating a unit. It
argues that such an approach substantially interferes with the
employees' right to determine how they will be most effectively
represented and with the congressional intent that the desires of
employees should be determinative where the appropriateness of a larger
unit and that of a smaller unit are equal. In support of its position,
FFA cites the Authority decision in Department of Defense, Department of
the Army, 193rd Infantry Brigade (Panama), 7 FLRA 471 (1981).
III. Analysis and Conclusions
We conclude that no compelling reasons exist within the meaning of
section 2422.17(c) for granting FFA's application for review. In a
recent decision, Department of the Navy, Naval Air Station, Point Mugu,
California, 26 FLRA No. 77 (1987), we denied a similar application for
review which involved a virtually identical factual situation and
decision by the Regional Director and in which the petitioner raised the
same contentions and arguments as raised here. Thus, for reasons more
fully discussed in Department of the Navy and since FFA has not
supported its contention that the Regional Director's decision rested on
the unsubstantiated and erroneous factual conclusion that NFFE fairly
and adequately represented the petitioned-for employees, we will deny
the application for review.
IV. Order
The application for review of the Regional Director's Decision and
Order is denied.
Issued, Washington, D.C., September 4, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 115
Overseas Education Ass'n and DOD, Office of Dependents Schools, Case
No. 0-NG-1166 (Decided September 4, 1987)
STATUTE
7105(a)(2)(E)
7114(c)
7122
SUBJECT MATTER INDEX ENTRIES
ARBITRATION
INTEREST ARBITRATION
FSIP-ORDERED
ARBITRATION AWARDS, REVIEW OF, PROCEDURE
FINALITY OF AWARD
COLLECTIVE-BARGAINING AGREEMENT
FSIP-ORDERED INTEREST ARBITRATION
COLLECTIVE-BARGAINING PROCESS AND THE DUTY TO BARGAIN
IMPASSE
FEDERAL SERVICE IMPASSES PANEL (FSIP)
INTEREST ARBITRATION
FEDERAL SERVICE IMPASSES PANEL
INTEREST ARBITRATION
NOT SUBJECT TO 7114(c) REVIEW
NEGOTIABILITY PROCEDURE
ALLEGATION OF NONNEGOTIABILITY
AGENCY HEAD'S DISAPPROVAL OF AN AGREEMENT (7114(c))
DISAPPROVAL OF INTEREST ARBITRATION-ORDERED PROVISIONS
DOES NOT SERVE AS ALLEGATION OF NONNEGOTIABILITY
DIGEST NOTES
The Authority dismissed a union's negotiability appeal of seven
provisions of a negotiated agreement disapproved by the agency head
under section 7114(c). The Federal Service Impasses Panel had ordered
that the dispute be submitted to interest arbitration; the interest
arbitrator had directed the parties to include the provisions in their
agreement. Citing its recent holding that interest arbitration awards
are not subject to review by agency heads under 7114(c), the Authority
held that the agency's head had not been authorized to review and
disapprove the seven provisions at stake in this case. On the ground
that the agency head's action therefore had not served as an allegation
of nonnegotiability, the Authority held that the union's negotiability
appeal was not properly before it. (majority opinion, with concurrence
in part and dissent in part)
Case No. 0-NG-1166
OVERSEAS EDUCATION ASSOCIATION
Union
and
DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
I. Statement of the Case
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 seven provisions of a collective bargaining agreement
which were disapproved by the Agency head under section 7114(c) of the
Statute. /2/
For the reasons which follow, we find that the Agency head was not
authorized to review the provisions under section 7114(c).
Consequently, the Union's appeal of the declaration is not properly
before us and we will dismiss the petition for review.
II. Background
The record in this case indicates that the parties reached an impasse
in bargaining on a supplemental agreement and were directed by the
Federal Service Impasses Panel (the Panel) to submit their dispute to
mediation/arbitration. The Arbitrator was given authority by the Panel
to issue a final decision on the outstanding issues. The Arbitrator
issued his award directing the parties to adopt the provisions that are
now in dispute. The Agency filed exceptions to the award with respect
to six of the seven provisions involved in this case. /3/ Those
exceptions were resolved in Overseas Education Association and
Department of Defense, Office of Dependents Schools, 28 FLRA No. 114
(1987).
In addition to filing exceptions with the Authority concerning six of
the provisions here in dispute, the Agency head declared the provisions
to be outside the duty to bargain while performing what was
characterized as a review of the agreement under section 7114(c) of the
Statute.
III. Analysis and Conclusion
In American Federation of Government Employees, AFL-CIO, National
Council of SSA Field Operations Locals and Department of Health and
Human Services, Social Security Administration Field Operations, 27 FLRA
No. 104 (1987) and International Organization of Masters, Mates & Pilots
and Panama Canal Commission, 27 FLRA No. 105 (1987), we dismissed the
petitions for review filed by the union as a result of the agency head's
declaration of nonnegotiability during a section 7114(c) review. We
stated that the agency head's action did not serve as an allegation of
nonnegotiability under section 7117(c) of the Statute because the
disapproved provisions were directed to be included in the agreement as
a result of Panel-directed interest arbitration. In reaching this
conclusion, we relied on our decision in Department of Defense
Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987), in
which we found that section 7114(c) does not empower agency heads to
review provisions that are directed to be included in an agreement as a
result of an interest arbitration award. Rather, we found that the
appropriate mechanism for challenging the propriety of interest
arbitration awards is through the procedures set forth in section 7122
of the Statute. As noted, the Agency in this case filed timely
exceptions to the Arbitrator's award which we recently resolved.
We conclude that the petition for review in this case must likewise
be dismissed. The Agency head was not empowered to review the
provisions in dispute that were directed to be included in the parties'
agreement as a result of interest arbitration. Therefore, the
declaration that the provisions were outside the duty to bargain did not
serve as an allegation of nonnegotiability from which the Union could
file a petition for review. Accordingly, the Union's petition is not
properly before us and will be dismissed. Instead, the Agency's
challenge to the propriety of the Arbitrator's award was properly
resolved by the decision on its exceptions filed under section 7122 of
the Statute.
IV. Order
The petition for review is dismissed. /4/
Issued, Washington, D.C., September 4, 1987.
/s/ Jerry l. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, concurring, in part, and dissenting, in part:
I respectfully dissent from my colleagues' dismissal of the union's
petition for review in this case to the extent it pertains to the six
provisions as to which the Agency filed exceptions in Overseas Education
Association and Department of Defense Dependents Schools, 28 FLRA No.
114 (1987). As set forth in my concurring and dissenting opinion in
Department of Defense Dependents Schools (DODDS) (Alexandria, Virginia),
27 FLRA No. 72, an agency head's section 7114(c) disapproval of a
contract provision resulting from Panel-directed interest arbitration
would be effective where the agency has filed timely exceptions to the
interest arbitrator's award. Such a disapproval would provide a union
with a proper basis for filing a petition for review of negotiability
issues, as the Union did in this case.
The Agency filed timely exceptions to the Arbitrator's award in this
case, which exceptions were resolved in Overseas Education Association
and Department of Defense Dependents Schools, 28 FLRA No. 114 (1987).
Consistent with the views expressed in my opinion in DODDS (Alexandria),
I would therefore have found that the Union's petition for review of the
Agency's related action under section 7114(c) was properly before the
Authority to the extent of the six provisions involved in the
arbitration case. As I further discussed in that opinion, the Authority
could consolidate such related proceedings for purposes of decision.
Efficient processing would appear to favor such consolidation.
Consequently, I would have granted the Union's motion to consolidate.
Rather than dismiss the Union's petition for review as to the provisions
in dispute in both cases, I would have accepted the petition for review
as properly before the Authority. On the basis of the Authority
decision in Overseas Education Association, 28 FLRA No. 114 (1987), I
would have determined that the disputed language in Article 9 (as
designated by the Arbitrator) pertaining to formal incentive awards was
within the duty to bargain, and I would have issued an order requiring
the Agency to rescind to that extent its disapproval of that provision.
In addition, as a result of the consolidation, I would have resolved on
the merits the negotiability issues raised by the Agency with respect to
Article 61 (as designated by the Arbitrator) instead of leaving the
parties only with the order that they return to the bargaining table.
As I also discussed in my dissenting opinion in American Federation of
Government Employees, AFL-CIO, National Council of SSA Field Operations
Locals and Department of Health and Human Services, Social Security
Administration Field Operations, 27 FLRA No. 104 (1987), an additional
advantage which might flow from such consolidation could be more
efficient enforcement proceedings should they be required.
With respect to the provision which was disapproved but as to which
no exceptions were filed, I concur with my colleagues that the Union's
petition for review of the Agency head's disapproval should to that
extent be dismissed. As set forth in my concurring and dissenting
opinion in DODDS (Alexandria), 27 FLRA No. 72, an agency head's section
7114(c) disapproval of a contract provision resulting from
Panel-directed interest arbitration is effective where, but only where,
the Agency has filed timely exceptions to the interest arbitrator's
award pursuant to section 7122 of the Statute. Accordingly, I concur in
the order dismissing the petition for review insofar as it pertains to
the duration and successor agreement article.
Issued, Washington, D.C., September 4, 1987.
/s/ Henry B. Frazier III, Member
FOOTNOTES
(1) Member Frazier's separate opinion, concurring, in part, and
dissenting, in part, immediately follows this decision and order.
(2) The Agency withdrew its allegations of nonnegotiability
concerning Article 5 - Official Time and Article 7 - Negotiations over
Proposed Changes in Working Conditions and Policies.
(3) The Agency did not file exceptions with respect to the article
pertaining to duration and the successor agreement.
(4) The Union's motion to consolidate this case with the case of the
Agency's exceptions to the award is denied.
28 FLRA NO. 114
DOD, Office of Dependents Schools, and Overseas Education Ass'n
(Jerome H. Ross, Arbitrator), Case No. 0-AR-976 (Decided September 4,
1987)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A) & (B); 7106(b)(1)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARBITRATION
INTEREST ARBITRATION
FSIP-ORDERED
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7105(a)(2)(E)
7106(a)(2)(A)
DIRECT EMPLOYEES
7106(a)(2)(B)
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARBITRATOR:
EXCEEDED HIS AUTHORITY
DETERMINED A NEGOTIABILITY ISSUE
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE LAW
5 U.S.C. 552a (PRIVACY ACT)
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
7106(a)(2)(B)
ASSIGN WORK, RESERVE MGM'T RIGHT (7106(a)(2)(B)
ELEMENTS OF THE RIGHT
DUTIES AND WORK TO BE ASSIGNED
PROHIBITING ASSIGNMENT OF CERTAIN DUTIES
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE STANDARDS
COLLECTIVE-BARGAINING PROCESS AND THE DUTY TO BARGAIN
IMPASSE
FEDERAL SERVICE IMPASSES PANEL (FSIP)
INTEREST ARBITRATION
FEDERAL SERVICE IMPASSES PANEL
INTEREST ARBITRATION
INFORMATION, EMPLOYEE AND UNION RIGHTS TO DATA FROM AGENCIES
PERFORMANCE APPRAISAL INFORMATION
AWARDS FOR SUPERIOR PERFORMANCE
SANITIZED COPIES
PERFORMANCE APPRAISAL SYSTEM
AWARDS/REWARDS
PERFORMANCE STANDARDS
CONTENT OF PERFORMANCE STANDARDS
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
5 U.S.C. 5722
20 U.S.C. 901-907 (OVERSEAS TEACHERS PAY ACT)
DIGEST NOTES
A union and an agency reached an impasse in contract negotiations,
and, at the direction of the Federal Service Impasses Panel, submitted
the dispute to interest arbitration. The interest arbitrator directed
the parties to adopt several provisions in the new agreement. The
agency filed exceptions to the arbitrator's award.
The agency's first challenge was to a provision dealing with the
certification and recertification of teachers. The Authority ruled that
the arbitrator had lacked the authority to resolve the issue of teacher
certification, because the agency had alleged before the arbitrator that
the provision was nonnegotiable. Under Authority precedent, interest
arbitrators have no authority to resolve negotiability issues. (article
61)
Two challenged provisions would have prohibited EEO counselors who
were unit employees from evaluating the performance of other unit
employees, and would have prohibited the assignment of supervisory
duties to unit employees who were grade-level or department chairmen.
The Authority held the award deficient as to these two provisions, as
both violated the agency's section 7106(a)(2)(B) right to assign work.
(article 14, section 2C; article 33, section 3)
Portions of an article which would have prohibited the use of student
test results and information gathered without full knowledge of the
employee in evaluating employee performance were held to be in violation
of management's 7106(a)(2)(A) and (B) rights, and so were stricken from
the arbitrator's award. (article 16, subsections of section 2; section
4)
A disputed provision which would have made summer employment
voluntary was stricken from the award as contrary to section
7106(a)(2)(B). The Authority rejected the union's argument that
provisions of the Overseas Teachers Pay and Personnel Practices Act (20
U.S.C. 901-907) and 5 U.S.C. 5722 prohibited the agency from compelling
its employees to teach summer school. (article 45)
A disputed provision which would require the agency to provide the
union with a list of all incentive awards and performance ratings given
during the school year was partially stricken from the award. The
Authority held that the award was not deficient insofar as it pertained
to the incentive awards. The Authority held that the award as it
pertained to performance ratings was contrary to the Privacy Act, to the
extent that it failed to provide for a sanitized listing. (article 9)
Case No. 0-AR-976
DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS
Agency
and
OVERSEAS EDUCATION ASSOCIATION
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the interest
arbitration award of Arbitrator Jerome H. Ross 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.
II. Background
The dispute before the Arbitrator concerned the negotiation impasse
of the parties regarding a new collective bargaining agreement. The
interest arbitration proceeding had been approved by the Federal Service
Impasses Panel as an appropriate procedure for resolving the impasse.
The Arbitrator resolved the impasse by directing the adoption of the
collective bargaining agreement provisions set forth as his award. The
Agency has filed exceptions with the Authority contending that the award
is deficient to the extent that it directs adoption of the following
provisions of the collective bargaining agreement. /1/
III. Article 61 - Certification and Recertification
The text of Article 61 is set forth in the Appendix.
A. Position of the Parties
In its exceptions to Article 61, the Agency primarily contends that
the award is deficient by directing that the parties' collective
bargaining agreement include an article on the certification and
recertification of professional personnel. The Agency argues that it
"maintained consistently throughout negotiations that teacher
certification was nonnegotiable." The Agency claims that pursuant to the
Defense Dependents' Education Act of 1978, Pub. L. No. 95-561, 92 Stat.
2365, the duty to bargain does not extend to teacher certification. The
Agency also argues that the inclusion of any certification standard, and
particularly the standards set forth in section 2 and 5 of Article 61,
conflicts with several management rights under section 7106(a) of the
Statute.
In opposition the Union maintains that the certification article
directed by the Arbitrator derived from the Agency's own proposals
during the impasse proceedings.
B. Analysis and Conclusions
We conclude that the award is deficient as it pertains to Article 61
because, in the circumstances presented, the Arbitrator did not have the
authority to resolve the impasse on the issue of teacher certification.
In Social Security Administration and National Council of SSA Field
Operations Locals (NCSSAFOL), American Federation of Government
Employees, AFL-CIO (AFGE), 25 FLRA No. 17 (1987) and Department of
Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72
(1987), we discussed in detail the resolution of duty to bargain issues
raised in an interest arbitration proceeding. In NCSSAFOL we reiterated
Authority rulings that interest arbitrators do not have the authority to
resolve duty to bargain questions. Negotiability disputes which arise
between an agency and an exclusive representative under section 7117(c)
of the Statute must be resolved by the Authority as required by section
7105(a)(2)(E). We also reiterated that when an arbitrator resolves a
duty to bargain question, the award will be found deficient and will be
set aside. We stated that in cases involving allegations of
nonnegotiability made during an interest arbitration proceeding, we will
carefully examine the record in the case to determine whether the
arbitrator made a negotiability ruling or merely applied existing
Authority case law to resolve the impasse. When the arbitrator has made
a negotiability ruling, the award will be set aside without addressing
the merits of the ruling. When the arbitrator has merely applied
existing case law, we will resolve any exceptions to the award on the
merits, and we will deny the exceptions if the existing case law was
correctly applied. In DODDS we further stated that in instances where
the award is set aside because an interest arbitrator has improperly
asserted jurisdiction over a duty to bargain has improperly asserted
jurisdiction over a duty to bargain question, we will provide a
meaningful course of action for the parties to follow so that the matter
is not left unresolved. We specified that the appropriate course of
action is to require the parties to return to the bargaining table "with
a sincere resolve to reach agreement." Slip op. at 11.
In this case, after examination of the record, we find that the
Agency asserted to the Arbitrator that under applicable law the duty to
bargain did not extend to the issue of teacher certification. We
further find that this allegation was not obviated by the Agency
assertedly submitting proposals on the issue in apparent compliance with
the resolution procedures of the Arbitrator. Because there is no clear
precedent on this issue, the Arbitrator did not have authority to
resolve the impasse on this issue and his award is therefore deficient.
Accordingly, we will modify the award by striking Article 61 without
addressing the Agency's management rights arguments, and we will order
that the parties return to the bargaining table with a sincere resolve
to reach agreement on the issue of teacher certification. /2/
IV. Article 14 - Non Discrimination
Section 2C. EEO counselors who are unit employees shall not be
used in any way to evaluate the performance of other unit
employess.
Article 33 - Grade Level and Department Chairpersons
Section 3. The duties of grade level and department
chairpersons who are unit employees relate to matters within their
grade level or department, but not to supervision or direction.
Their duties shall not include nor be construed as involving
personnel supervision as defined in 5 U.S.C. Section 7103.
A. Positions of the Parties
The Agency contends in its exceptions that the award is deficient
because the provisions are contrary to management's right to assign work
in accordance with section 7106(a)(2)(B). Specifically, the Agency
argues that the Article 14 provision conflicts with management's right
because the provision prevents management from assigning to a unit
employee who is an EEO counselor any duties related to the evaluation of
the performance of any other unit employee. The Agency similarly argues
that the Article 33 provision conflicts with management's right because
it absolutely prevents management from assigning to the chairpersons any
duties involving personnel supervision. The Agency does not contend
that it raised questions concerning the negotiability of these
provisions before the Arbitrator.
In opposition the Union argues that the Article 14 provision does not
prevent management from assigning any duties to unit employees. The
Union maintains that the provision merely prohibits the use of
information gained during the EEO process by the EEO counselor from
being used to evaluate other unit employees. With respect to the
Article 33 provision, the Union contends that if management seeks to
assign chairpersons supervisory duties, they should file a petition to
clarify the unit to remove the chairpersons from coverage by the
collective bargaining agreement.
B. Analysis and Conclusions
We conclude that the award as it pertains to the disputed provisions
of Article 14 and Article 33 is contrary to section 7106(a)(2)(B) of the
Statute.
The express language of the disputed provisions prohibits management
from assigning certain duties to bargaining unit employees. The Article
14 provision prohibits management from assigning EEO counselors any
duties relating to the evaluation of the performance of other unit
employees. The Article 33 provision prohibits management from assigning
supervisory duties to unit employees who are grade level or department
chairpersons. The Authority has specifically held that proposals which
prohibited management from assigning duties of evaluating the
performance of other unit employees and from assigning supervisory
duties directly interfered with management's right to assign work and
consequently conflicted with section 7106(a)(2)(B). American Federation
of Government Employees, AFL-CIO, Local 3385 and Federal Home Loan Bank
Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981) (Proposal I -
evaluation duties); American Federation of Government Employees,
AFL-CIO, International Council of U.S. Marshals Service Locals and
Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983)
(Proposal 1 - supervisory duties). Accordingly, the award is deficient
by directing inclusion of these provisions in the collective bargaining
agreement; we will strike Article 14, Section 2C and Article 33,
Section 3.
V. Article 16 - Performance Appraisal
Section 2. The performance of all unit employees shall be
evaluated according to appropriate Office of Personnel Management
requirements. The evaluator shall take into consideration any
circumstances that may adversely affect an employee's performance,
such as class size, special learning disabilities of students or
physical facilities. Student test results shall not be used in
any way to evaluate employees. All monitoring or observation of
the work performance of an employee shall be conducted openly and
with full knowledge of the unit employees. Unit employees
evaluations shall be prepared only on the basis of information
directly observed by Employer officials. Any derogatory
information received by a Supervisor which he/she, at the time of
receipt, intends to use in evaluating an employee shall be called
to the attention of the employee and the employee shall be
afforded the opportunity to answer or rebut such complaint.
Unless the situation convinces the Employer that time is of
essence in resolving the matter, no interview or meeting between a
complaining parent and employee shall be set by the Employer until
the employee has a reasonable opportunity to consult with the
Association's Representative. (Only the underlined provisions of
Section 2 are in dispute.)
Section 4. Critical elements and performance standards shall
be fair, reasonable, and realistic within the duties and
responsibilities stated in the employee's position description.
A. Positions of the Parties
The Agency contends in its exceptions that the award is deficient
because the disputed provisions are contrary to management's rights to
direct employees and assign work in accordance with section
7106(a)(2)(A) and (B). Specifically, the Agency argues that the first
and second disputed sentences of Section 2 interfere with management's
rights by proscribing and preventing, in the evaluation of employees,
the use of student test results and the use of information which was
gathered without full knowledge of the employee. The Agency similarly
argues that the third disputed sentence of Section 2 interferes with
management's rights by limiting the performance rating to matters
directly observed by the supervisor. The Agency argues that Section 4
interferes with management's rights because it is not limited to a
general, nonquantitative requirement by which the application of
performance standards established by management could subsequently be
evaluated in a grievance. Instead, it provides that the elements and
standards themselves shall be fair, reasonable, realistic and within the
duties and responsibilities stated in the employee's position
description. The Agency does not contend that it raised questions
concerning the negotiability of these provisions before the Arbitrator.
In opposition, the Union claims that the provisions do not interfere
with management's right to establish performance standards, but instead
only constitute procedures and arrangements to be used in the context of
applying the established standards to employees. The Union argues that
the first disputed sentence merely provides, consistent with studies
that test results do not reflect teacher quality, that in applying the
standards, test results shall not be used. The Union argues that the
second and third sentences have the same effect as the proposal
prohibiting secret studies found negotiable in American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 4).
As to Section 4, however, the Union consents to a modification of the
award to expressly limit the section to application of the standards.
B. Analysis and Conclusions
We conclude that the award as it pertains to the disputed provisions
of Article 16 is contrary to section 7106(a)(2)(A) and (B) of the
Statute.
The Authority has held that proposals which would eliminate a
specific element from the performance appraisal process directly
interfere with management's rights to direct employees and assign work
and consequently conflict with section 7106(a)(2)(A) and (B). For
example, in National Federation of Federal Employees and Haskell Indian
Junior College, Bureau of Indian Affairs, Department of the Interior,
Lawrence, Kansas, 22 FLRA No. 57 (1986), Proposal 3, which provided that
enrollment statistics should not be used negatively against instructors
in the performance appraisal process, was found to be nonnegotiable. In
addition, the Authority distinguished this proposal from proposals which
were found negotiable as merely establishing, in effect, a general,
nonquantitative standard by which application of performance standards
established by management could be evaluated in a subsequent grievance.
Slip op. at 4 (citing American Federation of Government Employees,
AFL-CIO, Local 2849 and Office of Personnel Management, New York
Regional Office, 7 FLRA 571 (1982) (Proposal 3) and American Federation
of Government Employees, AFL-CIO, Local 3804 and Federal Deposit
Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981)
(Proposal 2)). In contrast, the Authority held that the enrollment
statistics proposal concerned a specific element of the performance
standards and would prohibit the agency fron considering statistics in
appraising an instructor's performance. In this case we similarly find
that by prohibiting the use in any way of student test results in
evaluating teachers, the first disputed sentence directly interferes
with management's rights under section 7106(a)(2)(A) and (B).
Having determined that this provision directly interferes with
management's rights, we will find the award deficient and we will not
consider whether the provision constitutes an appropriate arrangement
under section 7106(b)(3). As with an allegation of nonnegotiability
raised by an agency during the interest arbitration proceeding, we view
the question of whether a provision constitutes an appropriate
arrangement to be a negotiability issue which must be resolved by the
Authority unless the interest arbitrator relied on established precedent
to find that a provision is a negotiable appropriate arrangement. In
this case it is not apparent that the Arbitrator applied an appropriate
arrangement. Consequently, the award is deficient by directing
inclusion of the first disputed sentence of Article 16, Section 2 in the
collective bargaining agreement and we will strike this sentence.
As to the second and third disputed sentences of Section 2, we have
also held that proposals which prohibit an agency from using information
gathered by means of a particular evaluation method or technique,
National Federation of Federal Employees, Local 1454 and Veterans
Administration, 26 FLRA No. 99 (1987) (Proposals 2-6); Social Security
Administration, Northeastern Program Service Center and American
Federation of Government Employees, Local 1760, AFL-CIO, 18 FLRA 437
(1985) (Proposals 1, 2, 5, and 7), or which limit management's ability
to collect data for purposes of performance evaluation, American
Federation of Government Employees, Local 1760, AFL-CIO and Department
of Health and Human Services, Social Security Administration, 15 FLRA
909 (1984) (measuring productivity Proposal 1), directly interfere with
management's rights to direct employees and assign work and consequently
conflicts with section 7106(a)(2)(A) and (B). In this case we similarly
find that the second and third disputed sentences of section 2 directly
interfere with management's rights.
The second disputed sentence effectively prohibits management from
using information gathered by means of monitoring or observation for
purposes of performance evaluation when the monitoring or observation is
not conducted openly and with the full knowledge of the employee. The
third disputed sentence limits the information which management may use
in evaluating employees to that information directly observed by
management officials. Contrary to the argument of the Union, these
provisions are not similar to proposals which were limited to
prohibiting secret studies bearing on performance standards. For
example, American Federation of Government Employees, AFL-CIO, Local
1708 and Military Ocean Terminal, Sunny Point, Southport, North
Carolina, 15 FLRA 3 (1984) (Proposal 1) and American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 4).
Those proposals were concerned only with procedures to be observed in
the development of performance standards and were negotiable under
section 7106(b)(2). In contrast to the provisions in this case, they
did not interfere with management's rights by prescribing the methods
and means to be used or not used by management in evaluating employees.
As with the first disputed sentence, it is not apparent that the
Arbitrator applied established precedent relating to section 7106(b)(3),
and therefore we will not consider whether the provisions are
appropriate arrangements. Accordingly, the award is deficient by
directing inclusion of these provisions in the collective bargaining
agreement, and we will strike these provisions of Article 16, Section 2.
With respect to Section 4, it is well established that proposals
which prescribe the content of performance standards rather than
relating to the application of those standards directly interfere with
management's rights under section 7106(a)(A) and (B). Specifically, the
Authority has found nonnegotiable proposals which prescribe that
performance standards themselves, rather than merely their application,
must be fair or reasonable. For example, American Federation of
Government Employees, AFL-CIO, Local 1603 and U.S. Naval Hospital,
Patuxent River, Maryland, 22 FLRA No. 60 (1986); American Federation of
Government Employees, Local 32 and Office of Personnel Management,
Washington, D.C., 16 FLRA 948 (1984) (Proposal 3). Accordingly, the
award is deficient by directing inclusion of Section 4 as presently
worded in the collective bargaining agreement. Furthermore, contrary to
the concession of the Union, we will not modify the award to limit
Section 4 solely to the application of the established standards. We
leave to the parties the task of rewording this provision to make it
consistent with management's rights.
VI. Article 45 - Summer School
Section 1. Summer employment shall be voluntary, and shall be
open to all currently employed unit employees. (Only the
underlined provision is in dispute.)
A. Positions of the Parties
The Agency contends in its exceptions that the award is deficient
because the disputed provision is contrary to management's rights to
assign work in accordance with section 7106(a)(2)(B) and to determine
the methods of performing work in accordance with section 7106(b)(1).
The Agency does not contend that it raised questions concerning the
negotiability of this provision before the Arbitrator.
In opposition, the Union contends that the provision is consistent
with the Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C.
Sections 901-907, and 5 U.S.C. Section 5722 pursuant to which unit
employees are entitled to transporation agreements. Essentially, the
Union argues that the teachers are unique in that these legal provisions
restrict their duty obligations to a school year which can be no more
than 190 workdays. Accordingly, the Union maintains that management's
exercise of its rights under section 7106 must be in accordance with
these legal provisions and that unit employees, therefore, cannot be
compelled to teach summer school.
B. Analysis and Conclusions
We conclude that the award as it pertains to the disputed provisions
of Section 1 is contrary to section 7106(a)(2)(B) of the Statute. We
find that management's right to assign work in accordance with section
7106(a)(2)(B) encompasses the assignment of teaching duties for summer
school; such an assignment is not precluded by the Overseas Teachers
Pay and Personnel Practices Act or 5 U.S.C. Section 5722.
It is well established that a proposal prohibiting the assignment of
specified duties or conditioning the assignment on the volunteering of
the employee directly interferes with management's right under section
7106(a)(2)(B) "to assign work." For example, Fort Knox Teachers
Association and Fort Knox Dependents Schools, 19 FLRA 878 (1985)
(Proposal 4); International Organization of Masters, Mates, and Pilots
and Panama Canal Commission, 11 FLRA 115 (1983) (Provision 6). In Ft.
Knox Teachers Association, Proposal 4 would have absolutely barred the
agency from requiring teachers to attend parent teacher organization or
association meetings after school unless the teacher's presence was
necessary. The union argued that mandatory attendance at such meetings
is not part of normal duty hours and that therefore attendance should be
voluntary. In finding that the proposal conflicted with section
7106(a)(2)(B), the Authority held that management's right to assign work
encompasses the assignment of duties outside of normal duty hours. The
conflict with management's right was not avoided because the assignment
related to an assignment of duties to be performed after normal duty
hours. In this case, we similarly find that management's right to
assign work encompasses the assignment of teaching duties during summer
school. The conflict with management's right is not avoided because the
provision relates to an assignment of teaching duties to be performed
after completion of the regular school year.
In addition, we have examined the provisions of law cited by the
Union and we find that they do not operate to preclude or prevent the
Agency from compelling a teacher to teach summer school. We do not
interpret the provisions of the Overseas Teachers Pay and Personnel
Practices Act or 5 U.S.C. Section 5722 as making voluntary the
performance by a teacher of teaching duties during summer school. We
reject the union's argument that by using the terms "school year" and
"recess period," the definitions and the compensation and allowance
provisions of the Act restrict management's right to assign work after
the completion of the regular school year. Similarly, we reject the
Union's argument that the authorization under section 5722 for the
Agency to pay travel expenses of a teacher restrict management's right
to assign work after completion of the regular school year. Section
5722 specifically permits the Agency to pay travel expenses for a
teacher to return to the teacher's residence only after the teacher has
served a minimum of one school year. It does not pertain to the
Agency's assignment of work and in no manner "obligate(s) the (teacher)
to serve only during the school year" as argued by the Union.
Accordingly, the award is deficient by directly inclusion of the
disputed provision of Section 1 in the collective bargaining agreement
and we will strike this provision of Article 45. /3/
VII. Article 9 - Association/DODDS Cooperation
Section 2. Upon request, the Employer at the school level
shall provide a listing to the Association of all formal incentive
awards and performance ratings granted employees during the school
year.
A. Positions of the Parties
In its exceptions the Agency contends that the award is deficient
because release of the specified information violates the Privacy Act, 5
U.S.C. Section 552a, and encompasses nonunit employees. In opposition
the Union argues that release of the specified information would not
violate the Privacy Act.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the award is
deficient as it pertains to formal incentive awards. We conclude that
the award as it pertains to performance ratings is contrary to the
Privacy Act to the extent that it fails to provide for a sanitized
listing.
The question presented by the Agency's exceptions is whether release
or disclosure to the Union of the specified information is barred by the
Privacy Act. The Privacy Act generally prohibits disclosure of personal
information about Federal employees without with consent. 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 Freedom of Information Act (FOIA), 5 U.S.C. Section
552. Under exemption (b)(6) of FOIA, 5 U.S.C. Section 552(6)(a),
information contained in personnel files is not required to be disclosed
if disclosure would constitute a clearly unwarranted invasion of
personal privacy.
In determining whether information is exempt from disclosure under
FOIA (b)(6), it is necessary to balance an individual's right to privacy
and the public interest in having information disclosed. For example,
American Federation of Government Employees, Local 12, AFL-CIO and
Department of Labor, 26 FLRA No. 34 (1987) (Proposals 4-5). In striking
this balance in cases where the information is to be disclosed to an
exclusive representative, we have stated that in view of the
congressional findings in section 7101 of the Statute, release of
information which is necessary for a union to perform its statutory
representational functions promotes important public interests. For
example, Army and Air Force Exchange Service (AAFES), Fort Carson,
Colorado and American Federation of Government Employees, AFL-CIO, Local
1345, 25 FLRA No. 89 (1987). In this case, considering the interests of
the Union as the exclusive representative and the personal privacy
interests of unit employees, we find that the balance of interests
favors disclosure and release of listings of recipients of formal
incentive awards, but prohibits disclosure and release of
name-identified listings of performance ratings.
Although the incentive awards provision requires disclosure of
personal information, the Agency does not argue that the information
which would be released is stigmatizing. In fact, the opposite is
likely to be true. See Celmins v. Department of Treasury, 457 F. Supp.
13, 15 (D.D.C. 1977). Consequently, we find on balance that the need of
the Union for such a listing in order to perform the full range of its
statutory representational functions, including enforcement of the
collective bargaining agreement and incentive award program and
representation of potentially aggrieved employees, outweights any
interests in withholding this nonstigmatizing information. The invasion
of privacy that would be caused by the release of such a listing is not
clearly unwarranted. See Veterans Administration Central Office,
Washington, D.C., 25 FLRA No. 52 (1987); Celmins, 457 F. Supp. at 16.
Consequently, release and disclosure of this information is not a
violation of the Privacy Act. In addition, the Agency fails to
establish that the provision's use of the word "employees" encompasses
other than unit employees. Accordingly, the Agency's exceptions as they
pertain to this information are denied.
However, to the extent that Article 9, Section 2 fails to provide for
a sanitized listing of performance ratings to the Privacy Act. Both the
Authority and the courts have recognized the strong privacy interests of
employees in personally identified performance ratings. See Department
of Health and Human Services, Region IV, Health Care Financing
Administration, 21 FLRA No. 60 (1986); U.S. Equal Employment
Opportunity Commission, Washington, D.C., 20 FLRA 357 (1985); Bureau of
Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18
FLRA 611 (1985); Celmins, 457 F. Supp. 13. See also American
Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army
Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment
Support Group, U.S. Army Information Systems Command-Redstone Arsenal
Commissary, 27 FLRA No. 14 (1987) (Provisions 3). The Authority
generally has permitted disclosure and release of performance ratings
only when they have been sanitized of names and personal identifiers,
see id., and specifically has permitted the release of a name-identified
performance rating only after noting that the rating of the individual
employee involved would not contain any stigmatizing information,
Internal Revenue Service, Washington, D.C., 25 FLRA No. 13 (1987). In
contrast to name-identified recipients of incentive awards, disclosure
of personally or name-identified performance ratings of all unit
employees may in fact contain stigmatizing information.
We find that the interests of the Union as the exclusive
representative do not outweigh the invasion of the personal privacy of
unit employees which would result if their performance ratings were
released in an unsanitized form. See Celmins, 457 F. Supp. at 17.
Thus, on balance, we find that release and disclosure of personally or
name-identified performance ratings of all unit employees, which we view
to be required under the provision as presently worded, constitutes a
clearly unwarranted invasion of personal privacy. As a result, by
providing for a blanket disclosure of performance ratings granted unit
employees, Article 9, Section 2 is deficient because it makes no
allowances for instances where disclosure is contrary to the Privacy
Act. See Overseas Education Association and Department of Defense
Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 4), petition for
review filed sub nom. Overseas Education Association v. FLRA, No.
86-1491 (D.C. Cir. Sept. 3, 1986). As with Article 16, Section 4, we
will not modify the award. Again, we leave to the parties the task of
rewording this provision to make it consistent with the Privacy Act.
VIII. Decision
For the reasons stated above, the award is modified as follows:
A. Article 14, Section 2C, the three disputed sentences of
Article 16, Section 2, Article 16, Section 4, Article 33, Section
3, and Article 61 are struck from the award. With respect to
Article 61, we order that the parties return to the bargaining
table with a sincere resolve to reach agreement to the extent
consistent with the Statute on the issue of teacher certification.
B. The disputed portion of Article 45, Section 1 is struck
from the award such that Article 45, Section 1 provides as
follows:
Summer employment shall be open to all currently employed unit
employees.
C. The portion of Article 9, Section 2 relating to performance
ratings is struck from the award such that Article 9, Section 2
provides as follows:
Upon request, the Employer at the school level shall provide a
listing to the Association of all formal incentive awards granted
employees during the school year.
Issued, Washington, D.C., September 4, 1987.
/s/ Jerry l. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
Federal LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Agency's exceptions pertaining to provisions concerning
official time were withdrawn. The Agency head also disapproved these
provisions under section 7114(c) of the Statute over which the Union
filed a negotiability appeal with the Authority. That petition for
review was dismissed in 28 FLRA No. 115 (1987).
(2) Insofar as the Union's proposals pertain to qualification
standards and selective factors for Agency positions, the parties should
refer to, for example, National Federation of Federal Employees, Local
1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air
Force Base, Colorado, 11 FLRA 565, 568 (1983). Insofar as the Union's
proposals pertain to employee training assignments, the parties should
refer to, for example, 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) (Proposals 19, 20, and 30).
(3) In view of this decision, it is not necessary to address the
Agency's contention concerning section 7106(b)(1).
APPENDIX
Article 61 - Certification and Recertification
Section 1.
The Employer shall determine the requirements for certification and
recertification for all full and part-time unit employees.
Section 2.
All unit employees are required to be certified initially for a
6-year period and recertified for each successive 6-year period of
employment with the DODDS in accordance with the requirements
established by the Employer (DS Regulation 5000.9, currently undated.)
Section 3.
Certification Review Board: A Board whose five members are appointed
by the Director, DODDS to review and make recommendations on appeals
received from educators regarding the rulings of certification staff.
The members of the Board will serve a one-year term and meet at the call
of the Director. The Chief of the Certification and Recertification
Section will serve as a non-voting member.
Certification: Certification is a process that verifies that an
individual has satisfactorily completed specified requirements for a
given certificate.
Recertification: Recertification is the periodic renewal of the
certification process.
Section 4.
The Employer shall ensure that all unit employees are in possession
of a current, valid certificate; initiate appropriate corrective action
when unit employees fail to meet Certification and Recertification
requirements; upon request, assist any unit employee in reviewing and
evaluating recertification credentials; and ensure that appropriate
guidance, assistance, and counseling are provided to all unit employees
regarding the requirements of the regulation.
Each unit employee shall be responsible for maintaining a valid
Department of Defense Dependents Schools certificate, earning the
required recertification units, presenting documentary evidence of
completion of the required renewal units, and providing copies of
official college/university transcripts.
SECTION 5.
Those certified unit employees employed by DODDS on June 14, 1985,
shall meet the requirements set forth in the applicable regulation and
this Article when their current certificates expire. Until their
current certificate expires, all provisions of DS Regulation 5000.9,
dated December 19, 1979, "DODDS Certification and Recertification
Program," remain in effect only for that group of unit employees.
Those unit employees hired on or after June 15, 1985, and those
current unit employees applying for certification in a new skill on or
after June 15, 1985, shall meet the requirements set forth in the
applicable regulation and this Article.
For initial certification, unit employees must meet the qualification
standards published by the Employer for the school year in which they
are hired or in which a request for certification is received.
For recertification, unit employees must satisfactorily complete six
(6) semester hours of graduate-level course work at an accredited
educational institution in areas related to the current teaching
assignment. If a unit employee is teaching more than one subject area,
the course work shall be divided between or among the subject areas for
a total of at least six (6) semester hours. To encourage the
development of skills and training in other academic subjects or grade
levels taught within the school system, three (3) of the six (6)
semester hours of credit may be earned in a new subject area or grade
level which will qualify for a position category within DODDS. The unit
employee must also meet the qualification requirements as published by
DODDS for any one of the last three school years of the certification
period.
Section 6.
Requested reassignments to new positions are possible with a valid
teaching certificate for the new positions and with evidence that the
current qualifications as published by DODDS for the pertinent school
year have been met. A unit employee may apply for reassignment to a new
position if the unit employee does not currently hold a teaching
certificate, but meets the qualifications as published by DODDS for the
pertinent school year. Upon acceptance of the position offer, a unit
employee shall apply for the certificate.
28 FLRA NO. 113
U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Ala., and
AFGE, Local 1815 (Munchus, Arbitrator), Case No. 0-AR-1324 (Decided
August 31, 1987)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
DIRECT EMPLOYEES
7106(a)(2)(B)
ARB AWARDS, REMEDIES ORDERED BY ARBS
PERFORMANCE APPRAISALS
RATINGS CHANGED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
EXCEEDED HIS AUTHORITY
SUBSTITUTED HIS JUDGMENT FOR THAT OF MANAGEMENT
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
7106(a)(2)(B)
PERFORMANCE APPRAISAL SYSTEM
ARBITRATION AWARDS AFFECTING PERFORMANCE APPRAISALS
PERFORMANCE APPRAISAL REVISED
DIGEST NOTES
An employee filed a grievance over his performance rating of "fully
successful," arguing that, were it not for his union activities, he
would have received an "exceptional" rating, as he had in previous
years. The arbitrator determined that the activity had failed to apply
its job performance standards to the grievant in the same way as it
applied them to other employees in the same job classification. He
sustained the grievance, ordering that the grievant be rated "exceeded"
on one job element, and that he receive an overall rating of
"exceptional."
In its exceptions, the agency argued that the arbitrator had
substituted his judgment for that of management, and that the award
therefore conflicted with the agency's section 7106(a)(2)(A) and (B)
rights.
The Authority agreed with the agency that, in directing that specific
ratings be changed, the arbitrator had substituted his judgment for that
of management. The Authority therefore modified the award, ordering the
agency to re-evaluate the grievant's performance. (majority opinion,
with concurrence in result)
Case No. 0-AR-1324
U.S. ARMY AVIATION CENTER AND FORT RUCKER FORT RUCKER, ALABAMA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1815
Union
DECISION /*/
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator George Munchus III 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. The Union filed an opposition.
II. Background and Arbitrator's Award
The grievant is a flight instructor who received a performance rating
of "fully successful" for the period ending February 25, 1986. He filed
a grievance alleging that he was being "punished" for his union
activities, including the filing of unfair labor practice charges
against the Activity, by being downgraded from "exceptional" ratings
which he had received in previous years.
At the second step of the grievance procedure, the Activity amended
the ratings for job element numbers 2 and 5 to "exceeded," but this did
not result in a change in the overall rating to "exceptional" as
requested by the grievant. The grievance was submitted to arbitration.
The issue before the Arbitrator was whether the performance appraisal
received by the grievant was applied in an inconsistent manner.
The Arbitrator determined that the Activity failed to apply
consistently its job performance standards to the grievant as was
required by the parties' agreement and Activity regulations. In
particular, the Arbitrator determined that the Activity applied the
standard in job element number 1, which related to a "checkride"
examination consisting of a flight (hands on) and academic (oral)
examination, to the grievant differently from the way in which it
applied the standard to other employees in the same job classification.
As his award, the Arbitrator ordered that the grievant be rated
"exceeded" on element number 1 and "exceptional" overall for the
appraisal period ending February 25, 1986.
III. Exception
The Agency argues that the Arbitrator's award conflicts with section
7106(a)(2)(A) and (B) of the Statute because the Arbitrator substituted
his judgment for that of management as to what the grievant's evaluation
and rating should be.
IV. Analysis and Conclusion
In recent decisions we have discussed the role of an arbitrator in
resolving disputes pertaining to performance appraisal matters. Social
Security Administration and American Federation of Government Employees,
Local 1122, AFL-CIO, 26 FLRA No. 15 (1987); Federal Prison System, U.S.
Medical Center for Federal Prisoners and American Federation of
Government Employees, Local 1612, 23 FLRA No. 53 (1986). We found that
an arbitrator may resolve grievances over whether an employee was
adversely affected in his or her performance appraisal by management's
application of the established performance standards. An arbitrator may
sustain the grievance on finding that management had not applied the
standards which it established to the grievant or had applied the
standards in violation of law, regulation, or an appropriate provision
of the parties' collective bargaining agreement. In sustaining the
grievance, the arbitrator may direct that the grievant's work product be
properly evaluated. An arbitrator may not, however, substitute his or
her own judgment for that of management in the exercise of its rights
under section 7106(a)(2)(A) and (B) to direct employees and assign work
as such rights pertain to matters of performance appraisal. In
particular, an arbitrator may not substitute his or her own judgment for
that of management as to what the grievant's evaluation and rating
should be.
Applying these principles in this case, we conclude in agreement with
the Agency that the Arbitrator improperly substituted his own judgment
for that of management in the exercise of its rights under section
7106(a)(2)(A) and (B) of the Statute. Although the Arbitrator
determined that the Activity did not apply the performance standards to
the grievant in a consistent manner as required by the parties'
agreement and Activity regulations, he did not order a reevaluation of
the grievant. Rather, by directing that the grievant's rating on job
element number 1 be changed to "exceeded" and his overall evaluation be
changed to "exceptional," the Arbitrator substituted his judgment as to
what the evaluation and final rating of the grievant should be.
V. Decision
For the above reasons, we find that the Arbitrator's award is
contrary to section 7106(a) of the Statute and must be modified.
Accordingly, the award ordering that the grievant be given a rating of
"exceeded" on element number 1 and "exceptional" on his overall
evaluation is modified to provide as follows:
Management shall reevaluate the grievant in accordance with the
Activity's performance appraisal system for the period ending
February 25, 1986 and shall apply that rating to the appraisal
period in question.
Issued, Washington, D.C., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee concurring:
I concur with the result reached by the majority. However, I reach
the result by a different reasoning.
As I stated in my concurrence in Warner Robins Air Logistics Center,
Robins Air Force Base, Georgia and American Federation of Government
Employees, AFL-CIO, Local 987, 28 FLRA No. 83 (1987), I believe that an
arbitrator should have the discretion to determine and award the
appropriate rating under any performance standard when it is determined
that management improperly applied the standard in a performance
appraisal. As I further stated in Warner Robins, it is my opinion that
as in review of performance-based actions under 5 U.S.C. Section 4303,
an agency should be expected to support a performance rating by
substantial evidence. In my view, therefore, if an arbitrator in a
performance appraisal grievance, determines that the agency fails to
substantiate its rating of an employee, the arbitrator should have the
discretion to direct the agency to cancel the disputed rating and to
grant the employee the rating to which he or she is entitled based on
the evidence.
This case is distinguishable from Warner Robins. Here, the
Arbitrator found that the Activity's application of a performance
standard to the grievant was inconsistent with its application of the
same standard to two other employees. The grievant was rated "met"
while the other employees were rated "exceeded". The Arbitrator
determined that the evidence indicated the grievant and the other two
employees each had failed the important initial checkride task and,
therefore, all three should have been rated as having "met" rather than
"exceeded" the standard. Award at 9. The other two employees were not
parties to the grievance and the appropriateness of their ratings was
not before the Arbitrator. Therefore, in light of the inconsistency in
ratings, he ordered that the grievant's rating be raised from "met" to
"exceeded", the higher rating received by the other employees. However,
the Arbitrator did not determine that the Activity had failed to support
its rating of the grievant with substantial evidence of the grievant's
actual performance, or that the evidence of the grievant's performance
under the standard warranted the higher rating.
In these circumstances, in the apparent absence of any evidence that
the grievant's performance warranted a higher rating, I find, based on
my opinion as to the extent of an arbitrator's discretion in performance
appraisal grievances, that the Arbitrator in this case exceeded his
authority by directing the Activity to raise the grievant's rating.
Accordingly, I agree with the majority that the Arbitrator's award
should be modified to strike the order directing the higher rating. I
also agree that the appropriate remedy for the Activity's apparent
inconsistent application of its performance standards is to direct the
Activity to reevaluate the grievant.
Issued, Washington, D.C., August 31, 1987.
/s/ Jean McKee, Member
FOOTNOTES
(*) Member McKee filed a separate opinion concurring in the result.
28 FLRA NO. 112
Dep't of the Navy, Wash., D.C., and Dep't of the Navy, Naval Air
Station, Corpus Christi, Tex., and Dep't of the Navy, Naval Hospital,
Corpus Christi, Tex., and NFFE, Local 797, Case Nos. 6-CA-60500 and
6-CA-60502 (Decided August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION
PROVIDE TO UNION
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
DIGEST NOTES
In this consolidated unfair labor practice case, the Authority ruled
that the agency and activities 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 respondents
against the disclosure of the information were disposed of by Authority
precedent.
Case No. 6-CA-60500
Case No. 6-CA-60502
UNITED STATES DEPARTMENT OF DEFENSE UNITED STATES DEPARTMENT OF THE
NAVY WASHINGTON, D.C.
Agency
and
UNITED STATES DEPARTMENT OF DEFENSE UNITED STATES DEPARTMENT OF THE
NAVY NAVAL AIR STATION, CORPUS CHRISTI, TEXAS
Activity
and
UNITED STATES DEPARTMENT OF DEFENSE UNITED STATES DEPARTMENT OF THE
NAVY NAVAL HOSPITAL, CORPUS CHRISTI, TEXAS
Activity
Respondents
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 797
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated proceeding is before the Authority under section
2429.1(a) of our Regulations based on the parties' stipulation of facts.
The amended consolidated complaint alleges that the Respondents
violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to provide
the Union with the names and home addresses of bargaining unit
employees. It also alleges that the Respondent Agency unlawfully
interfered with the bargaining relationship between the Respondent
Activities and the Union by instructing the Activities not to supply the
names and home addresses to the Union. The Respondents and the General
Counsel have filed briefs.
II. Facts
The Union represents two units of employees including (1) all
nonprofessional Civil Service employees of the Naval Hospital, Corpus
Christi, Texas, and (2) all nonprofessional Civil Service employees of
the Naval Air Station, Corpus Christi, Texas. On or about August 18,
1986, the Union requested lists of names and home addresses of employees
in these two units. On or about August 22, 1986, James Warren, labor
advisor for the Corpus Christi Naval Air Station, advised the Union that
the requests were denied. This denial stated, among other things, that
the issue "is currently the subject of litigation in the Federal
courts," and that "in accordance with the Department of the Navy policy
regarding disclosure of such information, your request is denied pending
resolution of current litigation."
The parties have stipulated that the Respondents maintain a list of
names and home addresses of all bargaining unit employees. There is no
assertion that the information constitutes guidance, counsel, advice, or
training provided for management officials or supervisors relating to
collective bargaining. As noted below in the section entitled
"Positions of the Parties," the Respondents concede that our decision on
remand 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 the Farmers Home
Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579
(8th Cir. Dec. 23, 1986), appears to be dispositive of this case,
although the Respondents disagree with that case.
III. Positions of the Parties
A. The Respondents
The Respondents concede that our decision on remand in Farmers Home
is dispositive of this case, but disagree with our rationale in that
case and its application here. The Respondents argue that release of
the names and home addresses of employees is contrary to the Privacy
Act, and is not "relevant or necessary" for the Union to carry out its
representational duties. Also, the Respondents contest the allegation
of the complaint that Respondent Department of the Navy interfered with
the bargaining relationship between the Respondent Activities and the
Union.
B. The General Counsel
In addition to arguing that this case is controlled by our decision
on remand in Farmers Home, the General Counsel argues that Respondent
Agency, Department of Defense, Department of the Navy, violated section
7116(1) and (5) of the Statute /*/ by interfering with the collective
bargaining relationship between the Activities and the Union. The
General Counsel asserts that the Agency prevented the Activities from
fulfilling their obligation.
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of names and home addresses of bargaining unit employees to 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 of section 7114(b)(4). Our decision in Farmers Home
analyzed the two exceptions to the Privacy Act's bar to disclosure of
personal information pertinent to the release of employees' names and
home addresses: exception (b)(2), concerning the Freedom of Information
Act, and exception (b)(3), relating to "routine use" of information. We
found that both exceptions to the Privacy Act's bar applied so as to
authorize release of the information under the Privacy Act. The
Respondents concede that under Farmers Home, the requirements of the
Privacy Act have been met. We also found in Farmers Home that the
release of the information is generally required without regard to
whether alternative means of communication are available. In this case
we also find that the Respondent Activities' refusal to provide the
Union with names and home addresses of unit employees violated section
7116(a)(1), (5) and (8) of the Statute.
In addition to alleging that the Respondent Activities violated the
Statute, the General Counsel alleged that the Department of the Navy, a
higher level of management, interfered with the bargaining relationship
between the Activities and the Union, where the level of exclusive
recognition exists. The allegation is based on the letter denying the
request for names and home addresses, because the letter stated, among
other things, that it is Agency policy not to release such information
pending resolution of the litigation in progress over that issue.
However, we conclude that the General Counsel has not established by
this reference a prima facie case that the Department of the Navy
required the Activities at the level of exclusive recognition to refuse
to furnish the data. We have long held that higher level management
would be held responsible for requiring management at the level of
exclusive recognition to follow its directions. See, for example,
Department of Health and Human Services, Social Security Administration,
Region VI and Department of Health and Human Services, Social Security
Administration, Galveston, Texas, 10 FLRA 26 (1982). However, the
reference in the letter to a policy is inadequate to establish such a
violation here.
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 Defense, U.S. Department of the Navy, Naval
Air Station, Corpus Christi, Texas, and Naval Hospital, Corpus Christi,
Texas, respectively, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of
Federal Employees, Local 797, the exclusive representative of its
employees, the names and home addresses of all unit employees at its
Naval Air Station, Corpus Christi, Texas, and its Naval Hospital, Corpus
Christi, Texas.
(b) 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) Furnish the National Federation of Federal Employees, Local 797,
the exclusive representative of its employees, with the names and home
addresses of all unit employees located at its Naval Air Station, Corpus
Christi, Texas and its Naval Hospital, Corpus Christi, Texas.
(b) Post at all facilities at its Naval Air Station, Corpus Christi,
Texas and its Naval Hospital, Corpus Christi, Texas, where bargaining
unit employees represented by the National Federation of Federal
Employees, Local 797, are located, copies of the attached Notices marked
Appendix A and B on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed,
respectively, by the Commanding Officer, Naval Air Station, Corpus
Christi, Texas and the Commanding Officer, Naval Hospital, Corpus
Christi, Texas and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2424.30 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.
IT IS FURTHER ORDERED that the portion of the complaint alleging
unlawful interference by the Respondent Agency with the collective
bargaining relationship between the Activities and the Union be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) In its brief, the General Counsel erroneously states that the
complaint included a section 7116(a)(8) allegation in this regard.
APPENDIX A
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Federation of Federal Employees, Local 797, the exclusive representative
of our employees, the names and home addresses of all bargaining unit
employees located at the Naval Air Station, Corpus Christi, Texas.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Federation of Federal Employees, Local
797, the exclusive representative of our employees, with the names and
home addresses of all bargaining unit employees located at the Naval Air
Station, Corpus Christi, Texas.
. . . (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 VI of the Federal Labor Relations Authority, whose
address is: 525 Griffin Street, Suite 926, Dallas, TX 75202 and whose
telephone number is: (214) 767-4996.
APPENDIX B
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Federation of Federal Employees, Local 797, the exclusive representative
of our employees, the names and home addresses of all bargaining unit
employees located at the Naval Hospital, Corpus Christi, Texas.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Federation of Federal Employees, Local
797, the exclusive representative of our employees, with the names and
home addresses of all bargaining unit employees located at the Naval
Hospital, Corpus Christi, Texas.
. . . (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 VI of the Federal Labor Relations Authority, whose
address is: 525 Griffin Street, Suite 926, Dallas, TX 75202 and whose
telephone number is: (214) 767-4996.
28 FLRA NO. 111
VA, Baltimore Regional Office, Baltimore, Md., and AFGE, Local 3597,
Case No. 3-CA-70254 (Decided August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 3-CA-70254
VETERANS ADMINISTRATION BALTIMORE REGIONAL OFFICE BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3597, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
upon a stipulation entered into by the Respondent, the Charging Party
(the Union) and the General Counsel. The issue is whether the
Respondent violated section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (the Statute) by refusing to
provide the Union, the exclusive representative of a unit of the
Respondent's employees, with the names and home addresses of those
employees as requested by the Union.
II. Facts
The Union is the exclusive representative of a unit of the
Respondent's employees. By letters dated July 16 and December 31, 1986,
the Union requested that the Respondent provide it with the names and
home addresses of the unit employees. By letter dated January 30, 1987,
the Respondent denied the request. The parties 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.
III. Positions of the Parties
The Respondent essentially contends that release of the names and
home addresses of employees would be contrary to the Privacy Act and
section 7114(b)(4) of the Statute and that the information is not
necessary for the Union to carry out its representational duties. The
Respondent disagrees with the Authority's Decision on Remand 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, 86-2579 (8th Cir. Dec. 23, 1986),
and asserts that the Authority erred in that decision.
The General Counsel contends that the Authority's Decision on Remand
in Farmers Home is controlling in this case. Consequently, the General
Counsel argues, the Respondent's failure to furnish the requested names
and home addresses constitutes a failure to comply with section
7114(b)(4) and a violation of section 7116(a)(1), (5) and (8) of the
Statute.
IV. Analysis and Conclusion
In our Decision and Order on Remand in Farmers Home, we concluded
that the release of names and home addresses of bargaining unit
employees to the exclusive representative 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). We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available.
Based on our Decision on Remand in Farmers Home, we reject the
Respondent's assertions in this case. We find that the Respondent was
required to provide the Union with the names and home addresses of the
bargaining unit employees under section 7114(b)(4). Accordingly, we
conclude that the Respondent's refusal to provide the Union with the
requested information violated section 7116(a)(1), (5) and (8) of the
Statute.
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 Veterans Administration, Baltimore Regional Office,
Baltimore, Maryland shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of American Federation of
Government Employees, Local 3597, AFL-CIO, the exclusive representative
of a bargaining unit of its employees, the names and home addresses of
all employees in the unit.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, Local
3597, AFL-CIO, the exclusive representative of a bargaining unit of its
employees, the names and home addresses of all employees in the unit.
(b) Post at its facility, Veterans Administration, Baltimore Regional
Office, Baltimore, Maryland, 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, Veterans
Administration, Baltimore Regional Office, Baltimore, Maryland, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and 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 III, 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., August 31, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, Local 3597, AFL-CIO, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the unit.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 3597, AFL-CIO, the exclusive representative of a bargaining unit
of our employees, the names and home addresses of all employees in the
unit.
. . . (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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
28 FLRA NO. 110
Dep't of the Navy, Norfolk Naval Shipyard, and Tidewater, Virginia
Federal Employees Metal Trades Council, Case No. 34-CA-70298 (Decided
August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 34-CA-70298
DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
upon a stipulation entered into by the Respondent, the Charging Party
(the Union) and the General Counsel. The issue is whether the
Respondent violated section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (the Statute) by refusing to
provide the Union, the exclusive representative of a unit of the
Respondent's employees, with the names and home addresses of those
employees as requested by the Union.
II. Facts
The Union is the exclusive representative of a unit of the
Respondent's employees. By letters dated November 21, and December 16,
1986, the Union requested that the Respondent provide it with the names
and home addresses of the unit employees. By letter dated January 12,
1987, the Respondent denied the request. The parties 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.
III. Positions of the Parties
The Respondent essentially contends that release of the home
addresses of employees would be contrary to the Privacy Act and section
7114(b)(4) of the Statute and that the information is not necessary for
the Union to carry out its representational duties. The Respondent
disagrees with the Authority's Decision on Remand 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, 86-2579 (8th Cir. Dec. 23, 1986),
and asserts that the Authority erred in that decision.
The General Counsel contends that the Authority's Decision on Remand
in Farmers Home is controlling in this case. Consequently, the General
Counsel argues, the Respondent's failure to furnish the requested names
and home addresses constitutes a failure to comply with section
7114(b)(4) and a violation of section 7116(a)(1), (5) and (8) of the
Statute.
IV. Analysis and Conclusion
In our Decision and Order on Remand in Farmers Home, we concluded
that the release of names and home addresses of bargaining unit
employees to the exclusive representative 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). We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available.
Based on our Decision on Remand in Farmers Home, we reject the
Respondent's assertions in this case. We find that the Respondent was
required to provide the Union with the names and home addresses of the
bargaining unit employees under section 7114(b)(4). Accordingly, we
conclude that the Respondent's refusal to provide the Union with the
requested information violated section 7116(a)(1), (5) and (8) of the
Statute.
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, Norfolk Naval Shipyard, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the Tidewater Virginia
Federal Employees Metal Trades Council, AFL-CIO, the exclusive
representative of a bargaining unit of its employees, the names and home
addresses of all employees in the unit.
(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 Tidewater Virginia Federal Employees Metal Trades
Council, AFL-CIO, the exclusive representative of a bargaining unit of
its employees, the names and home addresses of all employees in the
unit.
(b) Post at its facility, the Norfolk Naval Shipyard, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer of the Norfolk Naval Shipyard, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and 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 III, 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., August 31, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the Tidewater
Virginia Federal Employees Metal Trades Council, AFL-CIO, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the unit.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the Tidewater Virginia Federal Employees Metal Trades
Council, AFL-CIO, the exclusive representative of a bargaining unit of
our employees, the names and home addresses of all employees in the
unit.
. . . (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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
28 FLRA NO. 109
Norfolk Naval Shipyard and AFGE, Local 4015, Case No. 34-CA-70136
(Decided August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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 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 judge ruled that all
arguments raised by the agency against the disclosure of the information
were disposed of by Authority precedent.
Case No. 34-CA-70136
NORFOLK NAVAL SHIPYARD
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 4015, AFL-CIO
Charging Party
DECISION AND ORDER
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.
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, the exceptions /*/ and the entire record, we adopt the Judge's
findings, conclusions and recommended Order. For the reasons stated by
the Judge, we reject the Respondent's argument that it did not commit an
unfair labor practice by refusing to furnish upon request of the
Charging Party, the names and home addresses of bargaining unit
employees. See Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA No. 101 (1986), petition for review filed sub nom.
U.S. Department of Agriculture and Farmers Home Administration Finance
Office, St. Louis, Missouri v. FLRA, 86-2579 (8th Cir. Dec. 23, 1986).
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 Norfolk Naval Shipyard shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 4015, AFL-CIO, the exclusive representative
of a bargaining unit of its employees, the names and home addresses of
all employees in the unit.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, Local
4015, AFL-CIO, the exclusive representative of a bargaining unit of its
employees, the names and home addresses of all employees in the unit.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees, Local
4015, AFL-CIO are located, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commanding Officer and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and 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 III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 31, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 4015, AFL-CIO, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the unit.
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,
Local 4015, AFL-CIO, the exclusive representative of a bargaining unit
of our employees, the names and home addresses of all employees in the
unit.
. . . (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 III, Federal Labor Relations Authority, whose address
is: 1111 18th St., N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
Case No. 34-CA-70136
NORFOLK NAVAL SHIPYARD
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 4015, AFL-CIO
Charging Party
Phillip Boyer, Esquire
For the General Counsel
Robert J. Gilson, Esquire
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on December 8, 1986, by
Local 4015, American Federation of Government Employees, AFL-CIO,
(hereinafter called AFGE or the Union), a Complaint and Notice of
Hearing was issued by February 4, 1987, by the Acting Regional Director
for Region III, Federal Labor Relations Authority, Washington, D.C. The
Complaint alleges that the Norfolk Naval Shipyard, (hereinafter called
the Respondent or Navy), violated Sections 7116(a)(1), (5) and (8) of
the Federal Service Labor-Management Relations Statute, hereinafter
called the Statute), by failing and refusing to furnish to the Union the
names and home addresses of all unit employees within the bargaining
unit.
A hearing was held in the captioned matter on March 3, 1987, in
Norfolk, Virginia. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses and to introduce evidence
bearing on the issues involved herein. /1/ The General Counsel and the
Respondent submitted post-hearing briefs which have been duly
considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusion, and recommendations.
Findings of Fact
The Union is "the exclusive representative of Respondent's employees
in an appropriate unit for collective bargaining, consisting of all
ungraded inspectors (quality assurance personnel) of the Norfolk Naval
Shipyard, except supervisors as defined by Title 7."
The Union and the Respondent are parties to a collective bargaining
agreement which became effective in February 1982 for a period of three
years. Although the three year term of the agreement has passed the
parties are still honoring the provisions of the 1982 agreement while
they continue to bargain for a new agreement. Article 3 of the 1982
agreement provides as follows:
THE AGREEMENT AND ITS REGULATIONS TO LAW AND REGULATIONS
Section 1. It is agreed and understood that in the
administration of all matters covered by the agreement, officials
and employees are governed:
a. By existing or future laws, Executive Orders and Statutes
and by government-wide rules and regulations of appropriate
authorities set forth in the Federal Personnel Manual.
b. By published Department of Defense and Navy Department
policies and regulations in existence at the time the agreement
was approved.
c. By the regulations of appropriate authorities such as FLRA.
The Department of Defense Directive dated June 29, 1981, which bears
the identifying reference 1400.25M, CPM 711. F, is a regulation dealing
with labor-management relations programs and policies for the employees
in the Department of Defense. Subchapter 3-5 of the Directive entitled
General Provisions: d. Furnishing of Information. (711-16) provides
as follows:
d. Furnishing of Information. Lists of names, position
titles, grades, salaries, and/or duty stations of activity or unit
employees will be furnished to labor organizations upon request.
Lists of DoD employees' home addresses or telephone numbers will
not be furnished to labor organizations. Other information which
is necessary and relevant to the performance of an exclusive
union's representational functions (but no including material
described in 5 U.S.C. 7114(b)(4)(C)) shall be furnished to the
union on request, subject to the guidance set forth in Appendix C
to FPM Supplement 711-2 (CPM 711.E.9).
Subchapter 3-4 entitled Dealings With Organizations Holding
Exclusive Recognition provides in pertinent part as follows:
a. Rights and Obligations
(1) A labor organization granted exclusive recognitiion in an
appropriate unit shall have the rights and responsibilities
conferred upon such organizations by the Federal Service
Labor-Management Relations Statute (OPM 711.E-1), subject to
explication through decisions of the Federal Labor Relations
Authority and of the courts.
By letter dated November 10, 1986, the Union requested that
Respondent furnish it with the name and home addresses of all the
employees within the bargaining unit.
The parties stipulated that the information requested, i.e. the names
and addresses of all the employees within the bargaining unit, is
normally maintained by Respondent and reasonably available.
The parties further stipulated that all times subsequent to November
10, 1986 "Respondent has failed and refused to provide said names and
addresses to the Union."
On January 2, 1987, Respondent formally replied to the Union's
November 10th request for the names and addresses. Respondent's reply
reads in pertinent part as follows:
This is in reply to your memorandum of November 10, 1986 to Mr.
O'Carroll of my staff requesting names and addresses of bargaining
unit employees in accordance with 23 FLRA No. 101, issued October
31, 1986.
We have been advised that the Department of Justice is seeking
to appeal the decision, and perhaps others, to appropriate courts.
Until final judicial disposition of this issue, the Department of
Navy still maintains the position that, consistent with Farmers
Home Administration Finance Office, St. Louis, Missouri and
American Federation of Government Employees, Local 3354, 19 FLRA
No. 21, July 22, 1985, home addresses of bargaining unit employees
should not be released. Further, such release would be an
unwarranted invasion of employees' privacy for the reasons set
forth in American Federation of Government Employees, Local 1923
v. UNITED States Department of Health and Human Services, 712 F.2d
931 (4th Cir. 1983).
Discussion and Conclusions
Respondent offers three arguments in defense of its action in
refusing to furnish the Union the names and home addresses of the
bargaining unit employees. Thus, the Respondent takes the position that
the disclosure of the home addresses of the unit employees would violate
the Privacy Act. Secondly, it is Respondent's position that since there
are alternative means of communication with the unit employees, the
names and home address of the unit employees are not "necessary and
relevant" to the Union's ability to carry out its representational
functions. Finally, Respondent relies on the provision of the
collective bargaining agreement which incorporates by reference a
regulation of the Department of Defense which prohibits the disclosure
of the home addresses of unit employees. It appears that Respondent is
taking the position that the Union by having agreed to abide by all
existing regulations of the Department of Defense, one of which
prohibits the disclosure of the home addresses of bargaining unit
members, has waived its right to such information.
The General Counsel, on the other hand, based upon the Authority's
decision in Farmers Home Administration, Finance Office, St. Louis,
Missouri, supra, takes the position that Respondent's defenses based
upon the Privacy Act and the existence of alternate means of
communication are without merit. With respect to Respondent defense
predicated on the incorporation in the collective bargaining contract of
the Defense Department Regulation which prohibits the disclosure of the
home addresses of unit employees, it is the General Counsel's position
that the regulation is at best ambiguous in that while it does
specifically prohibit the disclosure of the home addresses of unit
employees it also requires the Respondent to accord a recognized labor
organization all rights conferred by the Statute "subject to explication
through decisions of the FLRA and the Courts." Since the Authority has
analyzed the Statute and concluded that Unions do have a right to the
home addresses of the employees, it is the General Counsel's position
that Authority's decision is paramount to the prohibition in the
regulation, particularly since the right of the Union to the information
had not been determined at the time the collective bargaining agreement
was executed. In this latter connection, the General Counsel cites the
Authority's decision in Immigration and Naturalization Service, 10 FLRA
202, wherein the Authority held in substance that a union could not
waive a right which it was unaware, at the time of the waiver, that it
possessed.
In agreement with the General Counsel, I find that Respondent's
defenses predicated on the Privacy Act, alternative means of
communication, and absence of a showing of relevancy, have all been
found by the Authority in Farmers Home Administration, Finance Office,
St. Louis, Missouri, supra, to be without merit. Thus, the Authority
held that release of the names and home addresses of unit employees is
not prohibited by the Privacy Act, that regardless of the existence of
alternative means of communication the names and home addresses of unit
employees should be supplied to the Union on request, and, finally, that
the exclusive representative need not offer any explanation as to the
reasons it seeks such information since the Union's need "is so apparent
and essentially related to the nature of exclusive representation itself
. . . "
With respect to Respondent's defense predicated on the fact that the
Defense Department Regulation prohibiting the disclosure of the home
addresses of bargaining unit employees had been incorporated by
reference into the 1982 collective bargaining agreement which is still
being honored pending agreement on a new contract, I find in all the
circumstance present herein that such defense is without merit.
There is no doubt that the Department Defense Regulation specifically
prohibits the disclosure of the unit employee's home addresses to the
Union. It is also clear that in 1982 when the regulation was
incorporated into the collective bargain agreement, the Authority had
not considered the question of a union's entitlement to the home
addresses as a statutory right under Section 7114(b)(4). Finally, it is
also clear from the regulation that the Respondent intended to accord
the labor organizations which had been granted exclusive representation
all rights conferred upon them by the Statute subject to explication by
the Authority and the Courts. Thus, from the foregoing, it appears that
to the extent that the provisions of the regulation conflict with
subsequent decisions of the Authority and the Courts, the latter would
take precedence over the former. Moreover, in this context, as pointed
out by the General Counsel, inasmuch as the prohibition might well be
argued to be a form of a waiver, such waiver in order to be effective
must have encompassed an existing right and not a right determined to
exist at a subsequent date, i.e. some four years later. Cf. Immigration
and Naturalization Service, supra. To the extent that Respondent
appears to reply on the Fourth Circuit's decision in American Federation
of Government Employees, AFL-CIO, Local 1923, 712 F.2d 931 as a decision
in accord with the Department of Defense Regulation, it is noted that
such decision did not concern a request for information, i.e. home
addresses of unit employees, under Section 7114(b)(4) of the Statute but
rather under the Freedom on Information Act, (FOIA). /2/ In such
circumstances the only outstanding Authority and/or Court decisions on
the subject are in conflict with the prohibition contained in the
Regulation, and, as noted above, would appear to take precedence over
such prohibition. Accordingly, predicated upon the above analysis and
the Authority's decision in Immigration and Naturalization Service,
supra, I find that the Union did not waive its right to the home
addresses of the unit employees and that its decision in Farmers Home
Administration, supra, takes precedence over the prohibition in the
regulation.
Since I have concluded that the Union did not waive its right to the
home addresses of the unit employees and in view of, and in accord with,
the Authority's decision in Farmers Home Administration, Finance Office,
St. Louis, supra, wherein the Authority found that remaining defenses of
Respondent to be without merit, I find that the Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute when it refused to honor
the Union's request for the names and home addresses of the bargaining
unit employees. Accordingly, I recommend that the Authority issue the
following order designed to effectuate the purposes and policies of the
Statute.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Norfolk Naval Shipyard shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of American Federation of
Government Employees, Local 4015, AFL-CIO, the names and home
addresses of all bargaining unit employees.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the names and home addresses of all bargaining unit
employees as requested by American Federation of Government
Employees, Local 4015, AFL-CIO.
(b) Post at all its facilities where bargaining unit employees
represented by American Federation of Government Employees, Local
4015, AFL-CIO, are located copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by a responsible
official of the Norfolk Naval Shipyard 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 III, Federal
Labor Relations Authority, 1111-18th Street, N.W., Suite 700, P.O.
Box 33758, Washington, D.C. 20033-0758, in writing, withint 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: June 23, 1987
Washington, D.C.
FOOTNOTES
(*) The Respondent asserts that the release of home addresses of
employees is prohibited by the Privacy Act and Freedom of Information
Act and that the information is not necessary for the union to carry out
its representational duties.
(1) Based on the Federal Labor Relations Authority's decision in
Farmers Home Administration, Finance Office, St. Louis, Missouri, 23
FLRA No. 101, Respondent was denied the opportunity to put on evidence
which would allegedly establish that the Union had other alternative
means of communication with the unit employees.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
We 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 American Federation of
Government Employees, Local 4015, AFL-CIO, the exclusive representative
of our employees, the names and home addresses of all bargaining unit
employees in the Norfolk Naval Shipyard.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the names and home addresses of all bargaining unit
employees as requested by the American Federation of Government
Employees, Local 4015, 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 III,
whose address is: 1111 - 18th Street, N.W., Room 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
28 FLRA NO. 108
Nuclear Regulatory Commission and NTEU, Case No. 3-CA-70045 (Decided
August 31, 1987)
STATUTE
7102
7116(a)(1), (2)
7118
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) (7116(a)(1))
EMPLOYEE RIGHTS
STATEMENTS BY AGENCY OFFICIALS
AGENCY ULP (ALLEGED) (7116(a)(2))
AGENCY'S ACTIONS CONSISTENT WITH PRACTICE FOR ALL EMPLOYEES
STATEMENTS BY SUPERVISORS OR MANAGEMENT OFFICIALS
GRIEVANCES
REASONABLE INFERENCE OF INTIMIDATION
CONCERNING AN EMPLOYEE GRIEVANCE
THREATS
FOR FILING GRIEVANCES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
REMEDIAL NOTICE
STATEMENTS BY SUPERVISORS OR MANAGEMENT OFFICIALS
REFRAIN FROM MAKING COERCIVE OR INTIMIDATING STATEMENTS
DIGEST NOTES
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 violated section 7116(a)(1) when
an employee's supervisor had told her that management did not approve of
her union activities; that she should keep her filing of grievances to
a minimum; and that she could lose her job if she persisted in these
activities. The judge found that the supervisor's statements had
interfered with, restrained, or coerced the employee in the exercise of
her section 7102 rights.
Case No. 3-CA-70045
NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
DECISION AND ORDER
I. Decision
The Administrative Law Judge issued the attached decision in this
case, finding that the Respondent had engaged in certain unfair labor
practices alleged in the complaint and recommending that the Respondent
be ordered to take appropriate remedial action. The Respondent has
filed exceptions to the Judge's decision. The Charging Party has filed
an opposition to the exceptions.
Pursuant to section 2423.29 of our Regulations and section 7118 of
the Federal Service Labor-Management Relations Statute (the Statute), we
have reviewed the rulings of the Judge and find that no prejudicial
error was committed. The rulings are affirmed. Upon consideration of
the Judge's decision, the exceptions, and the entire record, we adopt
the Judge's findings, conclusions, and recommended Order.
II. Order
A. Pursuant to section 2423.29 of the Authority's Regulations and
section 7118 of the Statute, the Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Interferring with the protected rights of steward Rajyashree
Tripathi, or any other employee, by making threats or statements that
management does not approve of her union activities, that grievances
should be kept to a minimum, and that the employee could lose her job if
she continued these activities.
(b) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its Washington, D.C., metropolitan area office
facilities, wherever bargaining unit employees are located, copies of
the attached Notice on forms furnished by the Authority. Upon receipt
of the forms, they shall be signed by the Commission's Executive
Director for Operations and be posted and maintained for 60 days in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that
these Notices are not altered, defaced, or covered.
(b) Notify the Regional Director of Region III, Federal Labor
Relations Authority, within 30 days from 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.
B. The allegations in paragraphs 6(b), 7 (to the extent it refers to
6(b)), and 8-9 of the complaint are dismissed.
Issued, Washington, D.C., August 31, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the protected rights of steward Rajyashree
Tripathi, or any other employee, by making threats or statements that
management does not approve of her union activities, that grievances
should be kept to a minimum, and that the employee could lose her job if
she continued these activities.
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.
. . . (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 III, Fedreal Labor Relations Authority, whose address
is: 1111 18th Street, NW., 7th Floor, P.O. Box 33578, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
Case No. 3-CA-70045
NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Dennis C. Dambly, Esquire
Marvin L. Itzkowitz, Esquire
For the Respondent
Ira Sandron, Esquire
For the General Counsel
Janice M. Rodgers, Esquire
For the Charging Party
Before: RANDOLPH D. MASON
Administrative Law Judge
DECISION
STATEMENT OF THE CASE
The 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, as amended, filed by the National Treasury
Employees Union, the General Counsel of the Federal Labor Relations
Authority issued a Complaint and Notice of Hearing on January 30, 1987,
alleging that Respondents violated section 7116(a)(1) of the Statute by
threatening a union steward and attempting to discourage her union
activity by certain statements, and sections 7116 (a)(2) and (1) by
discriminating with regard to her working conditions by requiring her to
account for her time in 15 minute increments. In a timely filed Answer,
Respondents deny 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 Washington, D.C., on March
24, 1987. All parties were represented by counsel and given full
opportunity to be heard, adduce evidence, and examine and cross-examine
witnesses. All parties submitted briefs which have been duly
considered. In addition, for good cause shown, Respondent's motion to
open the record to receive the new collective bargaining agreement
(Resp. Exh. 19) and motion to correct the transcript are granted. After
consideration of the entire record, including the pleadings, briefs,
documentary evidence, admissions, and stipulations of the parties, I
make the following findings of fact, conclusions of law, and recommended
order:
FINDINGS OF FACT
Background
At all times material hereto, the National Treasury Employees Union
has been the exclusive representative of a nationwide unit of certain
professional and nonprofessional employees at the Respondent Nuclear
Regulatory Commission.
During the period in issue, Rajyashree R. Tripathi, Ph. D., was a
Reactor Systems Engineer at Respondent's Office of Analysis and
Evaluation of Operational Data ("AEOD"), Washington, D.C. Dr. Tripathi
has a Ph.D. in nuclear engineering. She worked in Reactor Systems
Section 2 of the Reactor Operations Analysis Branch ("ROAB"). Her
responsibilities included evaluation of reactor operating safety
problems, accident precursors, and abnormal occurrences. She proposed
improvements and occasionally met with the Advisory Commission on
Reactor Safeguards and Congressional staff members. She also performed
long-term studies such as the "1984 Data Comparison Study," which was
her most time-consuming project during the period in issue.
Between February and October, 1986, her immediate supervisor in ROAB
was Dr. Peter Lam, section chief of Reactor Systems Section 2. Dr.
Lam's supervisor was Dr. Stuart D. Rubin, Branch Chief of ROAB.
In March of 1986 Tripathi was seeking a detail from NRC to work on a
subcommittee on Capitol Hill. A congressman wrote a letter on May 7 to
NRC requesting this detail. Tripathi requested the support of her
supervisors and made it clear that she considered this an "opportunity
of a lifetime." Later, Lam speculated that the agency may delay the
detail, and Tripathi became angry and referred to Mr. Jack Heltemes, the
office director of AEOD, as a "nobody" and a "peon." On June 10, 1986,
NRC advised the Congressman that the detail could not be accomplished in
view of the fact that it was requested on a non-reimbursable basis.
Although Rubin had no involvement in this decision, Tripathi angrily
accused him of blocking the transfer and said he and Heltemes were not
going to get away with it. She told Lam she was going to hit Heltemes
in the nose. Although Tripathi's relationship with Lam had been cordial
and professional until the spring of 1986, it began to deteriorate at
that point.
On June 10, 1986, her work on the 1984 Data Comparison Study had not
yet been completed and the study was long overdue. In April, she had
told Lam that she wanted to take an extended period of leave to travel
to India, but she did not give any specific dates or make a written
request at that time. On June 19 she made a written request to take
five weeks of leave to return to India beginning July 25, consisting of
157 hours of annual leave and 47 hours of leave without pay. At first,
Rubin, who had authority to approve her leave, told her that she could
take the leave if she could complete a first draft of the study before
her departure. She at first agreed if she could get compensatory time
for overtime, but this was refused. She turned down the offer later the
same day, and wrote a letter to Lam insisting that the leave request be
approved or denied within two days.
Her written application for leave was denied due to workload and
reduced staffing during the period in question, and she was granted
permission to take only two weeks of leave. She was extremely upset and
told Lam that Rubin was a "baboon." She also told Rubin that he had been
"totally unfair" about this and that she was going to "make trouble" for
him. On June 27 she filed a grievance on the matter, alleging that
Rubin was putting improper pressure on her and that he had "displayed an
arrogance bordering on contempt." The grievance was resolved on July 29
by management agreeing to allow her to take the five weeks of leave at
the end of the calendar year.
Between June 25 and September 5, Tripathi left about 12 notes for Lam
stating that she had gone to see a union steward. Lam showed these
notes to Rubin and remarked about her unhappinness.
Tripathi's leave was denied because she had failed to complete the
1984 Data Comparison Study, which was assigned to her in 1985 and was
long overdue. There was a pressing need to have it completed. At the
end of July 1986, Tripathi submitted a proposed time schedule indicating
when each section of the study would be completed. She stated that the
entire study would be completed in September 1986. However, about a
month later, she warned that the study might not be completed on time
because she had other duties and sick leave. Rubin and Lam did not
consider this a valid excuse; they were concerned because the time
spent on other matters was minimal. At that point they told her to
spend 100% of her time on the study.
Since annual performance appraisals were due on September 30, and new
performance elements and standards were to be completed by management
shortly thereafter, employees in the branch were asked to state, among
other things, ways in which they could improve their performance on the
job. In her September 4 response, Tripathi stated that she did not need
to improve because she already had all the necessary skills, but that
management "desperately needed" a "drastic change of attitude" and a
more humanitarian approach to its employees.
At that point the 1984 Data Comparison Study was the only project
assigned to her. On September 18 she wrote a memorandum to Lam
indicating that she would probably not be able to finish the study on
time. On September 23 she met with Rubin and Lam to discuss revised
completion dates.
She received her annual performance appraisal on September 30. She
was rated "fully successful" by Rubin. However, he noted that she could
improve her ability to complete her long-term studies in an expedited
time frame by better managing her time and more carefully reviewing her
drafts. On October 2 she filed a grievance alleging that the overall
appraisal was unfair, dishonest, and constituted retaliation for her
union activities. The grievance was resolved on February 9, 1987, by
management agreeing to withdraw the appraisal and issue a reappraisal.
September 17 Conversation
On September 16, 1986, Lam received a memorandum from the union
announcing the appointment of Tripathi as a union steward for AOED. The
agency had previously been notified on or about September 10, but Lam
was not informed until September 16. Thereafter, Lam spoke to Huel
Meadows in the Labor Relations branch, who informed him that the
negotiated agreement requires the steward to seek permission from his
supervisor before leaving to conduct union representational work.
On September 17, 1986, Tripathi had a conversation with Lam in the
latter's office. Lam mentioned a note that Tripathi had left for him
the previous day stating that she was meeting with Mr. George Barber,
the Executive Vice President of NTEU Chapter 208. Lam then gave her a
copy of the official time article in the negotiated agreement (Resp.
Exh. 2) and asked her to abide by these procedures in the future:
"A Union representative must request and be granted permission
from his/her supervisor or supervisor's designee to take time away
from work to perform Union representational functions, unless such
time is expected to be less than 10 minutes. He/she will specify
the purpose, . . . expected length of time off from official
duties, the office he/she intends to visit, and a telephone number
where he/she can be reached . . . . Union representatives shall
furnish the information described in this paragraph on a form
which will be maintained by the supervisor. (No such form existed
in September 1986). In the event that the Union representative's
supervisor is unavailable, the Union's representative shall leave
a message for the supervisor or designee furnishing the
information described in this paragraph.
(Although it appears that Lam and Tripathi were unaware of the
fact, Resp. Exh. 2 was merely a proposal under negotiation at the
time; instead, Resp. Exh. 14 contained the language of the
contract in effect. The latter did not contain the "less than 10
minutes" exception, but the Articles were not materially different
from the purposes of this proceeding.)
Lam said he had been "lenient" with her up to that point, but that
from then on he was going to "follow the book." Lam was merely
requesting that she ask for permission first, as provided by the
contract, rather than telling him after the fact. Tripathi was very
agitated during the conversation and said she did not have to abide by
the agreement. I find that when Lam's statement is taken in context, he
was merely asking that she abide by the official time article now that
she was a union steward.
Tripathi also testified that Lam said that although he personally did
not care, the "front office (upper management) does not approve of the
technical staff getting into representational activities." Although Lam
denied making this statement, Tripathi was a more credible witness.
Based on Tripathi's demeanor and forthright testimony, I find that Lam
made the latter statement.
September 18 Conversation
Tripathi also testified that in a second conversation, Lam said that
he was her friend and wanted to help her, that she should keep the
grievances to a minimum, and that she should restrict herself to
technical, work-related activities. She testified that he said she
"should not mess with Stuart Rubin," who he said was more experienced at
"these games," which she interpreted as labor-management activities.
She also testified that Lam also stated that if she continued with her
representational activities, Rubin could exert enough pressure on her to
make her "crack up."
Again, based on Tripathi's demeanor and forthright testimony, Lam's
testimony to the contrary is rejected. Accordingly, I find that Lam
made these statements to Tripathi.
September 22 Conversation
On this date Tripathi initiated a conversation with Lam because she
was admittedly upset with him. She thought Lam had said something about
her to her co-worker, Ted Cintula, and she told Lam: "If you have any
problems with my respresentational activities, you should confront me
directly rather than passing messages through somebody else." She also
testified that Lam said he was only thinking about her welfare, and if
she kept up these activities she would stand to lose her job. Lam
denies that Tripathi had this conversation with him. For the reasons
previously stated, I credit Tripathi's testimony and find that Lam made
this statement.
September 23 Conversation with Dr. Rubin
On September 23 Rubin met with Tripathi and told her that he wanted
to talk to her about her "happiness" working in the branch. Although
she had never told him she was unhappy in her job, he assumed this from
her prior actions. She testified that she is "guessing" as "one of the
many possibilities" that Rubin was unhappy with her representational
activities and that she would be less of a headache if she were not in
the branch. However, no mention was made of any union activities during
this conversation. (Although she had filed a grievance on the denial of
leave before she became a steward, she later filed only one grievance on
behalf of another employee in her capacity as steward on September 29.)
When Rubin referred to her unhappiness, he was referring to the fact
that she was frustrated about not being detailed to Capitol Hill, the
denial of her request for leave, the comments about Rubin in her
grievance, and her negative comments about management in her memo on
performance standards. He was concerned about her productivity and
thought that her attitude toward management was affecting her work.
Since her performance appraisal was being prepared, he felt this was an
opportune time to discuss this problem.
During the conversation, he said if she wanted to transfer to another
branch within the office or another office withint the agency, he might
be able to help her. She said she was not against a transfer if it
advanced her career. He specifically mentioned another branch in AEOD
as a possibility. She told him that such a transfer would not help her
career and that she was not interested, but that she might be interested
in some other position.
September 24 Conversation with Dr. Lam
Lam met with Tripathi on September 24 and told her that he understood
she had declined Rubin's offer of a possible transfer. Tripathi
testified that Lam also told her that when Rubin talked to her, the
latter might have already "lined up his ducks" and could "ship you
anywhere he wants to." Again, Lam denies making this statement. Based
on Tripathi's demeanor and credible testimony, I find that Lam made
these statements to Tripathi.
Accounting for Time
Tripathi had a conversation with Rubin on October 15, 1986 on
accounting for union time. Tripathi testified that Rubin told her that
in order to fill in her time and attendance card, she had to account for
her union-related, representational time in 15-minute increments. She
says she told him that others did not have this requirement, but that
she would comply. On the same morning, she wrote to Rubin a memo
setting forth the union-related time she had spent rounded to the
nearest quarter hour. The memo stated: "At your request, I had to
divide up the time in 15 minutes of chunk of the clock (sic)."
Thereafter, she continued to account for her time in this manner. Rubin
testified that he did not impose the 15-minute accounting requirement,
and that it was Tripathi who chose to break up her time in these
increments. Rubin was responsible for signing her time card, which
requires that representational time be accounted for separately under an
"RE" code. Based on Rubin's demeanor and credible testimony, I find
that Respondent never imposed this requirement (Tr. 197). It appears
that Tripathi previously rounded off her time for purposes of the time
card, and that she decided to do the same in this instance.
CONCLUSIONS OF LAW
Complainant contends that Respondent violated section 7116 (a)(1) by
making certain statements to Tripathi which interfered with, restrained,
or coerced her in the exercise of her rights guaranteed by section 7102
of the Statute. The latter section provides, in part, that each
employee shall have the right to form, join, or assist any labor
organization freely and without fear of penalty or reprisal.
Specifically, the Complaint charges that Tripathi's immediate
supervisor, Lam, made the following statements in conversations with
Tripathi on September 17, 18, 22, and 24, 1986:
(a) The front office does not approve of the employee/union
steward's union activities.
(b) He had been "lenient" with her before but from now on he
was going by the book.
(c) She should keep grievances to a minimum and should cease
"messing around" with Rubin.
(d) If she kept up these activities, she would stand to lose
her job and management could ship her off anywhere they wanted.
As indicated in the findings of fact, Lam admittedly made statement
(b) that he had been lenient with her but now was going to "follow the
book." However, when this statement is taken in context, Lam was merely
asking Tripathi, as a newly appointed steward, to abid by the official
time provisions of the negotiated agreement pertaining to stewards.
This statement did not interfere with, coerce, or restrain her in the
exercise of her Section 7102 rights.
On the other hand, I have found that Lam also made statements (a),
(c), and (d). I based these findings on the credible testimony of
Tripathi. Lam's testimony denying that he made these statements was
rejected. These statements clearly interfered with, restrained, or
coerced Tripathi in the exercise of her rights under Section 7102.
Accordingly, an appropriate order will be issued with respect to these
unfair labor practices under Section 7116(a)(1).
The Complaint further alleges an unfair labor practice under Section
7116(a)(1) by a statement made on September 23 to Tripathi by Rubin, her
second-level supervisor. As alleged in the Complaint, I find that Rubin
told Tripathi that if she was unhappy in the branch he might be able to
help her get a transfer. However, this statement, by itself, was not
coercive and did not otherwise interfere with her rights under Section
7102 of the Statute. Based on her previous actions, Rubin had good
reason to believe that Tripathi was unhappy with her job. Rubin did not
mention her union activities during the conversation, and Tripathi
testified that she is only "guessing" as "one of the many possibilities"
that Rubin was referring to her representational work. It is, of
course, possible that Rubin and Lam conspired to intimidate Tripathi now
that she had become a union steward, and that Rubin's remarks were part
of this scheme. However, there is no proof of such a conspiracy or any
nexus between the statements of the two supervisors. Moreover, there is
no other proof that the protected activity was a motivating factor
behind Rubin's remarks. Accordingly, these remarks did not constitute
an unfair labor practice.
Finally, the Complaint alleges that Respondent imposed the
requirement of accounting for Tripathi's time in 15-minute increments.
The General Counsel contends that this discouraged membership in the
union by discriminating against Tripathi in connection with her
conditions of employment and constituted an unfair labor practice under
Section 7116(a)(2) and (1). Crediting Rubin's testimony on this issue,
I have found that this requirement was never imposed. This contention
is also rejected.
Accordingly, in all the circumstances herein I recommend that the
Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Interfering with the protected rights of steward Rajyashree
Tripathi, or any other employee, by making threats or statements that
management does not approve of her union activities, that grievances
should be kept to a minimum, and that the employee could lose her job if
she continued these activities.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its Washington, D.C. metropolitan area facilities,
wherever bargaining unit employees are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Executive Director for Operations, Nuclear Regulatory Commission, 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 said 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 III, Federal Labor
Relations Authority, in writing, Within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
IT IS FURTHER ORDERED that the allegations contained in Paragraph
6(b), 7 (to the extent it refers to 6(b)), 8, and 9 of the Complaint, be
and hereby are, dismissed.
Randolph D. Mason
Administrative Law Judge
Dated: May 20, 1987
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the protected rights of steward Rajyashree
Tripathi, or any other employee, by making threats or statements that
management does not approve of her union activities, that she should
keep grievances to a minimum, and that she could lose her job if she
continued these activities.
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.
. . . (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 III,
whose address is: 1111 18th Street, N.W., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
28 FLRA NO. 107
AFGE, Local 2532, and SBA (Harkless, Arbitrator), Case No. 0-AR-1377
(Decided August 31, 1987)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REVIEW OF, EXCEPTIONS
AWARD CONTRARY TO THE EVIDENCE
AWARD CONTRARY TO LAW
LAW NOT SPECIFIED
AWARD FAILS TO DRAW ITS ESSENCE FROM THE PARTIES' AGREEMENT
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARB'S INTERPRETATION OF PARTIES' AGREEMENT
GRIEVANCE PROCEDURE, NEGOTIATED
TIME LIMITS ESTABLISHED BY NEGOTIATED AGREEMENT
DIGEST NOTES
An arbitrator dismissed a union's grievance upon determining that
arbitration of the grievance had not been timely invoked. He based his
conclusion upon his interpretation of a provision of the parties'
agreement that required the union to notify the agency of the referral
of a grievance to arbitration. The arbitrator ruled that the grievant's
letter to the agency had not been a proper means of notification.
The union filed exceptions, arguing that the arbitrator's dismissal
was contrary to law, to the parties' agreement, and to the evidence.
The Authority ruled that the union had not proved the arbitrator's
award deficient on any statutory ground.
Case No. 0-AR-1377
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2532
Union
and
U.S. SMALL BUSINESS ADMINISTRATION
Agency
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator James M. Harkless 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.
II. Background and Arbitrator's Award
A grievance was filed on August 7, 1985, protesting a reprimand. The
award in this case results from an invocation of arbitration dated
October 17, 1986. A preliminary issue presented was whether arbitration
of the grievance was timely invoked. The Arbitrator determined that
under Article 41 of the parties' master agreement, the grievance was not
timely referred to arbitration. He noted that under Article 41, Section
1 the Union must notify the Agency that a grievance is being referred to
arbitration. He concluded that the grievant's letter of October 7,
1985, invoking arbitration and identifying himself as having been
designated by the union membership as an official representative with
the authority to invoke arbitration, was not a proper communication to
the Agency of a decision to arbitrate a grievance under the terms of
Article 41, Section 1. Consequently, finding on this basis alone that
the attempt to invoke arbitration on October 7, 1985, was defective and
that the 1986 referral to arbitration was untimely, the Arbitrator as
his award dismissed the grienvance. /1/
III. Discussion
In its exceptions the Union contends that the Arbitrator's finding
that the 1985 invocation of arbitration was defective because it was not
made by the Union, is not supported by law, the master agreement, or the
evidence. The Union further contends that the Arbitrator should have
waived the time requirement and found that the 1986 invocation to be
timely. The Union also contends that the Arbitrator erred by finding
that the grievant's unfair labor practice charge precluded arbitration
of the grievance over his reprimand.
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, Immigration and
Naturalization Service, Department of Justice, U.S. Government and
American Federation of Government Employees, Local No. 1656, 7 FLRA 549
(1982) (An exception, contending that the arbitrator's finding that
arbitration had not been invoked in accordance with the collective
bargaining agreement violated the Statute by interfering with the
union's right to designate its own agents, was denied. The exception
challenged the arbitrator's interpretation of the agreement and his
ruling that the procedural requirements for submitting grievances to
arbitration had not been met which are matters solely for resolution by
the arbitrator.) Since we conclude that the Arbitrator's award
dismissing the grievance, is not deficient, we do not address the
Arbitrator's discussion of the effect of the unfair labor practice
charge filed by the grievant. See National Federation of Federal
Employees, Local 1332 and United States Army Materiel Development and
Readiness Command Headquarters, 7 FLRA 612 (1982) (when an alternative
disposition has not been shown to be deficient, exceptions to an
independent disposition provide no basis for finding award deficient).
Accordingly, the Union's exceptions are denied. /2/
Issued, Washington, D.C., August 31, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Arbitrator also discussed the effect of an unfair labor
practice charge filed by the grievant and determined that the filing of
the charge independently supported the dismissal of the grievance.
(2) We have not considered any matter raised in the Agency's
opposition that was not raised in the Union's exceptions other than the
Agency's contention that this matter is moot, which we reject.
Accordingly, we have not considered the Union's reply to the Agency
opposition, and we deny the Agency's motion to file a response to the
Union's reply.
28 FLRA NO. 106
VA, Washington, D.C., and VA Medical Center, Minneapolis, Minn., and
AFGE, Local 1969, Case No. 5-CA-70173 (Decided August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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.
Granting the General Counsel's motion for summary judgment, the judge
held 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 judge ruled that all arguments raised by
the agency against the disclosure of the information were disposed of by
Authority precedent.
Case No. 5-CA-70173
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION
MEDICAL CENTER, MINNEAPOLIS, MINNESOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1969, AFL-CIO
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in the
above-entitled proceeding, finding that 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 and the entire
record, we adopt the Judge's findings, conclusions and recommended
Order. /*/
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 Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, Minneapolis, Minnesota shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 1969, AFL-CIO, the exclusive representative
of certain of its employees, the names and home addresses of all
employees in the bargaining unit it represents.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, Local
1969, AFL-CIO, 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 the Veterans Administration Medical Center, Minneapolis,
Minnesota, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by a responsible official of the Veterans
Administration, Washington, D.C. and the Director of the Veterans
Administration Medical Center, Minneapolis, Minnesota 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 V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., August 31, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, Local 1969, AFL-CIO, the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 1969, AFL-CIO, 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 V, Federal Labor Relations Authority, whose address is:
175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose
telephone number is: (312) 353-6306.
Case No. 5-CA-70173
VETERANS ADMINISTRATION, WASHINGTON, D.C. AND VETERANS ADMINISTRATION
MEDICAL CENTER MINNEAPOLIS, MINNESOTA
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1969, AFL-CIO
Charging Party
Sharon Bauer, Esq.
For the General Counsel
Mr. C. Charles Caruso
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
section 7101, et seq., (hereafter called the Statute) and the Rules and
Regulations issued thereunder. Pursuant to a charge filed on March 2,
1987, by the American Federation of Government Employees, Local 1969,
AFL-CIO (hereinafter called the Union), a Complaint and Notice of
Hearing was issued on March 30, 1987, by the Regional Director for
Region V, Federal Labor Relations Authority, Chicago, Illinois. The
Complaint alleges that the Veterans Administration, Washington, D.C. and
Veterans Administration Medical Center, Minneapolis, Minnesota
(hereinafter called Respondent or Respondents) violated section
7116(a)(1), (5) and (8) of the Statute by failing and refusing to
provide the Union the names and home addresses of bargaining unit
employees.
Respondents, on or about April 24, 1987, filed an Answer admitting
that the Union is the exclusive representative of a consolidated unit of
certain non-professional employees at the Activity; that the Union
requested the names and home addresses of bargaining unit employees on
November 17, 1986; and, that since that date it has refused to provide
the names and home addresses of the bargaining unit employees to the
Union. Additionally, Respondents admitted that the names and home
addresses of bargaining unit employees are contained in the Official
Personnel Folder (OPF) of each employee and the OPFs are located in the
Personnel Office of the Activity; that the names and home addresses of
the bargaining unit employees are also contained in a computerized
payroll system; and although Respondent denies that the information is
reasonably available, the basis of its denial is its disagreement with
the Authority's decision in Farmers Home Administration Finance Office,
St. Louis, Missouri, 23 FLRA 101 (1986). /1/
On or about April 29, 1987, the Counsel for the General Counsel filed
a Motion for Summary Judgment in this matter asserting, in essence, that
all material factual allegations of the Complaint had been admitted and
that the admitted facts were sufficient to establish a violation of
section 7116(a)(1), (5) and (8) of the Statute. Thereafter, on May 5,
1987, the Chief Administrative Law Judge pursuant to the rules and
regulations issued an Order setting a briefing period.
On May 22, 1987, Respondents filed an Identification of Issues; and
Statement of Uncontested and Contested Facts in which it admitted that
the Union is the exclusive representative of a consolidated unit of
non-professional employees; that the Union requested the names and home
addresses of all bargaining unit employees; that it has not provided
the names and home addresses to the Union; and that the name and home
addresses of bargaining unit employees are maintained by it in the
regular course of business. However, Respondents maintain that here the
Union has already been furnished with an "effective equivalent" of the
names and home addresses of bargaining unit employees through weekly
listings of the names and positions of all employees and an annual
listing of bargaining unit employees showing name, title, grade and
position. With the above information, Respondents insist that the Union
could use the two telephone directories covering the commuting area to
obtain the home addresses and telephone number of bargaining unit
employees. Under Farmers Home Labor, supra such an equivalent clearly
need not be exercised by an exclusive representative. Therefore, such a
position is rejected as establishing any contested material fact in this
matter. Thereafter, on June 8, 1987, Respondent filed a brief in the
matter. The General Counsel, on June 8, 1987, filed an additional reply
to Motion for Summary Judgment.
Findings of Fact
1. The Union is the exclusive representative of a consolidated unit
of certain of Respondents' non-professional employees.
2. By letter dated November 17, 1986, the Union requested that
Respondents furnish it with the names and home addresses of all unit
employees within the above-mentioned bargaining unit.
3. The requested information is normally maintained by Respondents
in the regular course of business, is reasonably available, and could
not constitute guidance, counsel or training provided for management
officials or supervisors relating to collective bargaining.
4. Respondent's answer to the Complaint in this matter admits that
it refused to furnish the Union the names and home addresses of
bargaining unit employees.
Conclusions
Following Farmers Home Administration Finance Office, St. Louis,
Missouri, supra, the Authority has reviewed its decision regarding the
furnishing of names and home addresses of bargaining unit employees to
exclusive representatives on many occasions. /2/ An examination of the
Authority's holdings in those cases leaves no doubt that it considered
the information "necessary" under section 7114(b)(4) of the Statute and
also that it considers names and home addresses should be provided to
the exclusive representative upon request.
Respondents' arguments in its Identification of Issues; and
Statement of Uncontested and Contested Facts and in its brief, in my
view, raise no new issues. It is therefore, my opinion that Farmers
Home Administration Finance Office, St. Louis, Missouri, supra, is
dispositive of all arguments raised by Respondents herein. As a result
of the Authority's holdings in the cited cases, I am constrained to find
that Respondents' defenses for its failure and refusal to provide the
Union with the requested information lacks any merit. Accordingly, it
is concluded that Respondents were obligated under section 7114(b)(4) of
the Statute to furnish the names and home addresses of the bargaining
unit employees upon request.
In light of the above, it is my finding that Respondent's violated
section 7116(a)(1), (5) and (8) of the Statute and that the General
Counsel's Motion for Summary Judgment, should be granted. It is
therefore, recommended that the Authority issue the following:
ORDER
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. 7118,
the Authority hereby orders the Veterans Administration, Washington,
D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota
shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of American Federation of
Government Employees, Local 1969, AFL-CIO, the exclusive
representative of its employees, the names and home addresses of
all bargaining unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the names and home addresses of all bargaining unit
employees as requested by the American Federation of Government
Employees, Local 1969, AFL-CIO.
(b) Post at Veterans Administration, Washington, D.C. and
Veterans Administration Medical Center, Minneapolis, Minnesota
copies of the attached Notice (See Appendix) on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by a responsible official of
the Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, Minneapolis, Minnesota and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region V, Federal
Labor Relations Authority, 175 W. Jackson Boulevard, Suite 1359-A,
Chicago, Illinois 60604, in writing, withint 30 days from the date
of this Order, as to what steps have been taken to comply
herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: June 17, 1987
Washington, D.C.
FOOTNOTES
(*) The Respondents excepted to the dual posting of a notice in
Washington, D.C. and in Minneapolis. The Judge's Order has been
modified to provide for posting of the notice only at the Veterans
Administration Medical Center, Minneapolis, Minnesota. This posting is
consistent with posting requirements in similar cases. See, for
example, Veterans Administration, Washington, D.C. and Veterans
Administration Medical Center, North Chicago, Illinois and American
Federation of Government employees, Local 2107, AFL-CIO, 27 FLRA No. 42
(1987), application for enforcement filed sub nom. FLRA v. Veterans
Administration, Washington, D.C. and Veterans Administration Medical
Center, North Chicago, IL, No. 87-1250 (D.C. Cir. June 5, 1987); and
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 and American Federation of
Government Employees, Local 1857, AFL-CIO, 26 FLRA No. 85 (1987),
petition for review filed sub nom. Departments of the Army and Air
Force, Army and Air Force Exchange Service, Headquarters, Dallas, Texas
and Army and Air Force Exchange Service, McClellan AFB, California v.
FLRA, No. 87-7274 (9th Cir. June 29, 1987).
(1) Respondents also assert that because the issue of providing names
and home addresses has been appealed any action on the matter should be
stayed until that appeal is decided. Despite such appeals the Authority
has not delayed action on this issue pending the resolution of the
above-mentioned appeals. Consequently, Respondent's request for a stay
is denied.
(2) Philadelphia Naval Shipyard, 24 FLRA 39 (1986); Defense Mapping
Agency Aerospace Center, St. Louis, Missouri, 24 FLRA 43 (1986); Social
Security Administration, Northeastern Program Service Center, 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
No. 56 (1987); and Air Force District of Washington, 26 FLRA No. 64
(1987); Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California, 26 FLRA No. 78 (1987).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 1969, AFL-CIO, the exclusive
representative of our employees, the names and home addresses of all
bargaining unit employees represented by it in the Veterans
Administration Medical Center Minneapolis, Minnesota facility.
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 names and home addresses of all bargaining unit
employees as requested by the American Federation of Government
Employees, Local 1969, 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 V,
whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL
60604, and whose telephone number is: (312) 353-6306.
28 FLRA NO. 105
Bureau of Engraving and Printing and Lodge 2135, Int'l Ass'n of
Machinists and Aerospace Workers, Case No. 3-CA-60538-1 (Decided August
31, 1987)
STATUTE
7102
7116(a)(1)
7118
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) (7116(a)(1))
EMPLOYEE RIGHTS
STATEMENTS BY AGENCY OFFICIALS
STATEMENTS BY SUPERVISORS OR MANAGEMENT OFFICIALS
GRIEVANCES
REASONABLE INFERENCE OF INTIMIDATION
CONCERNING AN EMPLOYEE GRIEVANCE
THREATS
FOR FILING GRIEVANCES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
REMEDIAL NOTICE
STATEMENTS BY SUPERVISORS OR MANAGEMENT OFFICIALS
REFRAIN FROM MAKING COERCIVE OR INTIMIDATING STATEMENTS
DIGEST NOTES
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 agency had violated section 7116(a)(1) when a
management official had told union representatives that the work of the
unit's employees would be contracted out if the union continued to file
grievances. Applying the test in Authority precedent, the judge found
that the manager's statements necessarily tended to intimidate or coerce
the employees present at the meeting during which they were spoken, and
that the employees reasonably could have anticipated adverse
consequences if the union which they represented continued to file
grievances. The judge concluded that the manager's statements
constituted a threat, and one "inherently destructive" of employees'
section 7102 rights.
Case No. 3-CA-60538-1
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
LODGE 2135, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
Charging Party
DECISION AND ORDER
I. Decision
The Administrative Law Judge issued the attached decision in this
case, finding that the Respondent had engaged in certain unfair labor
practices alleged in the complaint and recommending that the Respondent
be ordered to take appropriate remedial action. The Respondent has
filed exceptions to the Judge's decision.
Pursuant to section 2423.29 of our Regulations and section 7118 of
the Federal Service Labor-Management Relations Statute (the Statute), we
have reviewed the rulings of the Judge and find that no prejudicial
error was committed. The rulings are affirmed. Upon consideration of
the Judge's decision, the exceptions, and the entire record, we adopt
the Judge's findings, conclusions, and recommended Order.
II. Order
Pursuant to section 2423.29 of the Authority's Regulations and
section 7118 of the Statute, the Bureau of Engraving and Printing shall:
1. Cease and desist from:
(a) Stating to employees that if they or their bargaining
representative continue to file grievances under the negotiated
grievance procedure, it will contract out work performed by the
employees.
(b) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities in Washington, D.C., copies of the
attached Notice on forms furnished by the Authority. Upon receipt of
the forms, they shall be signed by the Chief of the Office of
Engineering and be posted and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that
these Notices are not altered, defaced, or covered.
(b) Notify the Regional Director of Region III, Federal Labor
Relations Authority, within 30 days from 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., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees that if they or their
bargaining representative continue to file grievances under the
negotiated grievance procedure, we will contract out work performed by
our employees.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . . (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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, NW., 7th Floor, P.O. Box 33578, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
Case No.: 3-CA-60538-1
BUREAU OF ENGRAVING AND PRINTING
Respondent
and
LODGE 2135, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
Charging Party
Steven Bodolay, Esq.
Michael Devine, Esq.
For the Respondent
Phillip Boyer, Esq.
For the General Counsel
John F. Meese, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on November 26,
1986, by the Regional Director for the Federal Labor Relations
Authority, Region III, a hearing was held before the undersigned on
February 3, 1987 at Washington, D.C.
This Case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq., (herein called the Statute). It is
based on a charge filed on September 5, 1986 by Lodge 2135,
International Association of Machinists and Aerospace Workers, AFL-CIO
(herein called the Union) against Bureau of Engraving and Printing
(herein called the Respondent).
The Complaint alleged, in substance, that on or about September 3,
1986, during a grievance meeting between officials of the Union and
Respondent, a management official, George Shue, stated that if the Union
persisted in filing grievances, he would contract out work now being
performed by unit employees.
Respondent's Answer, dated December 9, 1986, denied the essential
allegations in the Complaint as well as the commission of 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:
Findings of Fact
1. At all times material herein the Union has represented, and has
been the bargaining representative of, the Respondent's machinist
employees in an appropriate unit of Respondent's employees.
2. At all times material herein the Union and Respondent were
parties to a collective bargaining agreement covering the aforesaid unit
employees. The agreement, which was in effect at all times material
herein, set forth a negotiated grievance procedure for the filing of
grievances with management.
3. In 1986 Respondent created the position of electro-mach, which
was a combination of the skills of machinists and electricians. As a
result thereof, management found it necessary to have a cross training
program. Respondent attempted to effect an orderly transfer of
information, which would also require machinists to train the
electro-machinists regarding the operation of certain machines.
Included in the group of machines were those manufactured by Goebel, a
German company.
4. Opposition to the training of those employees in the new position
was voiced by the Union. The latter was desirous of obtaining an
increase in pay for the machinists by reason of the training to be done
by them. Further, the Union was concerned that their work would be
taken over by the electro-machinists and a loss of jobs might ensure.
5. On September 3, 1986 the Union filed two grievances relating to
the training of the electro-machinists by the machinist employees. Both
were sent to George Shue, Chief of the Office of Engineering, and each
alleged violation of the bargaining agreement.
6. The first grievance (G.C. Exhibit No. 2) stated that the
violation occurred by "requiring machinists to train electro-machinists
without regard to the rate of pay for the trainers or how the training
assignment should be made." As a remedy, the Union sought pay for all
machinist trainers 25% over the base machinist rate, or assign an
assistant foreman to train as was decided in the "Machine Tool Operators
Training Program."
7. The second grievance (G.C. Exhibit No. 3) stated that the
agreement was violated by requiring machinists to be assigned and/or run
calls in areas designated as "electro-machinist" areas on evenings and
midnight shifts. As a remedy, it sought that Respondent pay machinists
the top step of the electro-machinist pay rate.
8. A grievance meeting was held on September 3, 1986 in Shue's
office with respect to the two grievances filed that morning. Attending
thereat on behalf of the Union were Joseph Hebda, President of the
Union, and Gerald Taylor, Grievance Committee Chairman. Both Hebda and
Taylor were machinists employed by Respondent. Attending the meeting on
behalf of Respondent were George Shue, William Crown, Acting
Superintendent of Construction and Maintenance, /1/ and Don Dickerson,
Employee Relations Specialist.
9. Record facts show that the subject of training electro-machinists
was discussed. Management was attempting an orderly transfer of
information from the machinists, who were knowledgeable, to the trainees
in the electro-mach program. Shue mentioned that, while it was
preferable to have the machinists do the training, he would have to
contract with machinery representatives to provide assistance if the
machinists wouldn't do the task.
10. Although a discussion took place with respect to the grievances
filed by the Union, there is a sharp dispute as to certain alleged
remarks made by Shue. According to Hebda, at the close of the
discussion Shue became upset with the fact that the Union grieved the
proposed training of electro-machinists by the machinist employees
without some pay adjustment. Hebda testified that Shue said if the
Union persisted in filing grievances, he would subcontract out their
work to Goebel. /2/ Union Representative Taylor testified that, at the
meeting of September 3, 1986, Shue stated that if the Union continued
filing grievances, there's a lot more work could be contracted out;
that Goebel could come in and do the machinists work. Both Hebda and
Taylor testified Shue became red-faced when making these statements.
11. Both Shue and Crown denied that Shue made any statements to the
effect that if grievances continued to be filed by the Union, he would
contract out the work. Shue testified he pointed out that Respondent
needed the information transferral; that it was more efficient to have
Union members take part in it; that if he couldn't get it done within
the Bureau, he would have to contract with machinery representatives to
come in and provide the needed technical assistance.
12. While a clear question of credibility exists herein, the
undersigned credits the version as testified to by General Counsel's
witnesses. Note is taken that Respondent failed to call as a witness
Don Dickerson, its Employee Relations Specialist who was present at the
September 3 meeting. Further, no explanation was offered as to its
failure to do so. Unfair labor practice cases in the private sector
have long recognized that an adverse inference may be raised by the
failure of a party to produce available evidence. See International
Association of Bridge, Structure and Ornamental Ironworkers, Local 600,
134 NLRB 301, 306; Liberty Work Company, Inc., 128 NLRB 160, 169-170.
Since no explanation was offered by Respondent as to the reason why
Dickerson did not testify, and it does not appear that he was
unavailable, I draw an adverse inference by the failure to call this
management official, who was present on September 3, to testify re the
statements made at the meeting. Based on this failure, as well as the
directness of the Union witnesses, the demeanor of all witnesses, and
the record testimony, I find that Shue stated he would contract out the
work of the machinists if the Union persisted in filing grievances.
13. Under state of September 5, 1986 Shue sent a memorandum to Hebda
denying the grievances filed by the Union as aforesaid. In substance,
the Union was advised that the duties which the machinists would be
called upon to assume under the training program are customarily
provided to a new machinist employee, and the routine activity is not
deemed to violate the collective bargaining agreement.
Conclusions
In determining whether statements made by management to employees
constitute an infringement of Section 7116(a)(1) under the Statute, the
test is whether, under the circumstances, they tend to coerce or
intimidate employees. Despite the intent of the employer, if the
individual could reasonably infer coercion, statements made by
managerial personnel will be deemed coercive. Objective standards must
be the guidelines in making such determination. Department of the
Treasury, United States Customs Service, Region IV, Miami, Florida, 19
FLRA 956; Internal Revenue Service Louisville District, 11 FLRA 290.
Turning to the case at bar, I am persuaded that the statements made
by Shue, as heretofore found, would necessarily tend to intimidate or
coerce the employees who were present at the meeting. As Union
representatives, they could reasonably anticipate adverse affects if
they, as stated by Shue, continued to file grievances. Subcontracting
out work, which might be performed by machinists, would necessarily
affect the employees' pay as well as their security. It is an obvious
threat based on continuous use of the grievance procedure. A threat of
this nature is inherently destructive of an employee's rights under
Section 7102 of the Statute. Such interference with the right of an
employee to file and process grievances under a negotiated grievance
procedure is clearly violative of the Statute. United States Department
of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois,
3 FLRA 724. Accordingly, I conclude Respondent did, on the basis of
Shue's statements to employees Hebda and Taylor on September 3, 1986 re
the filing of grievances, violate Section 7116(a)(1) of the Statute.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following:
ORDER
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 Bureau of Engraving and Printing shall:
1. Cease and desist from:
(a) Stating to employees that if they or their bargaining
representative continues to file grievances under the negotiated
grievance procedure, it will contract out work performed by the
employees.
(b) In any like or related manner interferring 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:
(b) Post at its facilities in Washington, D.C. 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 of the Bureau of Engraving and
Printing, or his 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 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 III, Federal
Labor Relations Authority, Washington, D.C., in writing within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
/s/ WILLIAM NAIMARK
Administrative Law Judge
Dated: May 18, 1987
Washington, D.C.
FOOTNOTES
(1) At the time of the meeting Crown was Foreman of Production and
Maintenance of the Construction and Maintenance Division.
(2) Goebel helped erect the machinery and made alterations thereon.
The machinists maintained it.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements to employees that if they or their
bargaining representative continues to file grievances under the
negotiated grievance procedure, we will contract out work performed by
our employees.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . . (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 III,
whose address is: 1111 - 18th Street, NW., 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
28 FLRA NO. 103
Oklahoma City Air Logistics Command, Tinker Air Force Base, Okla.,
and AFGE, Local 916 (Fogelberg, Arbitrator), Case No. 0-AR-1385 (Decided
August 31, 1987)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REVIEW OF, EXCEPTIONS
AWARD CONTRARY TO APPLICABLE LAW
5 U.S.C. 552a (PRIVACY ACT)
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S REASONING AND CONCLUSIONS
INFORMATION
PERSONNEL RECORDS
MEDICAL RECORDS
OVERTIME
ASSIGNMENT
MANDATORY OVERTIME
DIGEST NOTES
An employee filed a grievance when his supervisor requested that he
submit additional medical information in support of his exemption from
mandatory overtime. The arbitrator determined that regulations of the
Office of Personnel Management and of the department permitted such a
request, and that submission of the requested information to the
grievant's supervisor would violate neither the Privacy Act nor medical
ethics. He denied the grievance.
In its exceptions, the union argued that the arbitrator's award was
contrary to the Privacy Act and implementing regulations regarding the
disclosure of medical records.
The Authority denied the union's exceptions, citing cases in which
exceptions had been denied as attempts to relitigate the matter.
Case No. 0-AR-1385
OKLAHOMA CITY AIR LOGISTICS COMMAND, TINKER AIR FORCE BASE, OKLAHOMA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO
Union
DECISION
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator J. C. Fogelberg 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.
II. Background and Arbitrator's Award
A grievance was filed and submitted to arbitration disputing the
request of the grievant's supervisor that the grievant submit additional
medical information to her from his physician to support his being
exempted from mandatory overtime. The Arbitrator determined that
management was authorized under Office of Personnel Management
regulations and Air Force regulations to request medical information for
such a purpose and that the request in this case was reasonable. He
also rejected the Union's argument that the submission of the medical
information to the grievant's supervisor violated the Privacy Act and
medical ethics regarding confidentiality. Accordingly, as his award,
the Arbitrator denied the grievance.
III. Discussion
The Union contends that the award is deficient because the Arbitrator
permitted the unwarranted invasion of the personal privacy of the
grievant by upholding the submission of the requested medical records to
the grievant's supervisor who is not a medical professional.
Specifically, the Union argues that the award is contrary to the Privacy
Act and implementing regulations pertaining to disclosure of medical
records.
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. Department of
Housing and Urban Development and American Federation of Government
Employees, AFL-CIO, 12 FLRA 616 (1983) (exception contending that the
award was contrary to law provided no basis for finding that the award
was deficient; the union was attempting to relitigate the merits of the
case before the Authority and the exception constituted disagreement
with the arbitrator's reasoning and conclusions).
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 101
Dep't of Commerce, Minority Business Development Agency, and NFFE,
Local 2008, Case No. 3-CA-70075 (Decided August 31, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
In this unfair labor practice case, the Authority, having found no
prejudicial error, adopted the findings (as corrected), the conclusions,
and the recommended order of the administrative law judge.
The judge held 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 judge ruled that all
arguments raised by the agency against the disclosure of the information
were disposed of by Authority precedent.
Case No. 3-CA-70075
U.S. DEPARTMENT OF COMMERCE MINORITY BUSINESS DEVELOPMENT AGENCY
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2008
Charging Party
DECISION AND ORDER
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.
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, the exceptions, /*/ and the entire record, we adopt the
Judge's findings as corrected, conclusions, and recommended Order. For
the reasons stated by the Judge, we reject the Respondent's argument
that it did not commit an unfair labor practice because it does not
maintain the data requested. We also reject the Respondent's argument
that it did not commit an unfair labor practice because its denial of
the Union's request was lawful when the denial was made. See U.S.
Department of the Treasury, 27 FLRA No. 102 (1987); Department of the
Navy, Mare Island Naval Shipyard, Vallejo, California, 26 FLRA No. 57
(1987), application for enforcement filed sub nom. FLRA v. Department of
the Navy, Mare Island Naval Shipyard, Vallejo, California, No. 87-1148
(D.C. Cir. Apr. 3, 1987).
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the U.S. Department of Commerce, Minority Business Development
Agency shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of
Federal Employees, Local 2008, 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) Request the Office of Personnel in the Department of Commerce
and/or its support centers to provide the Minority Business Development
Agency with the names and home addresses of all employees of the
Minority Business Development Agency in the unit represented by the
National Federation of Federal Employees, Local 2008. Upon receipt
thereof, the Minority Business Development Agency shall furnish the
Union with 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 National Federation of Federal Employees, Local 2008
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 the Minority Business Development
Agency 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 III, 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., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTCE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Federation of Federal Employees, Local 2008 (the Union), the exclusive
representative of certain of our employees, the names and home addresses
of all employees in the bargaining unit it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL request the Office of Personnel in the Department of Commerce
and/or its support centers for the names and home addresses of all
employees of the Minority Business Development Agency in the unit
represented by the National Federation of Federal Employees, Local 2008,
the exclusive representative of a bargaining unit of certain of our
employees, and upon receipt thereof, furnish the Union with the names
and home addresses of all employees in the bargaining unit it
represents.
. . . (Activity)
Dated: . . . By: (Signature) (Title)
(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 III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W. 7th Floor, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
Case No.: 3-CA-70075
U.S. DEPARTMENT OF COMMERCE MINORITY BUSINESS DEVELOPMENT AGENCY
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2008
Charging Party
Bruce I. Waxman, Esq.
For the Respondent
Patricia Eanet Dratch, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 22,
1986, by the Regional Director for the Federal Labor Relations
Authority, Region III, a hearing was held before the undersigned on
February 18, 1987 at Washington, D.C.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq., (herein called the Statute). It is
based on a charge filed on November 13, 1986 by National Federation of
Federal Employees, Local 2008 (herein called the Union) against U.S.
Department of Commerce, Minority Business Development Agency (herein
called Respondent or MBDA).
The Complaint alleged, in substance, that on or about July 28, 1986
the Union requested that Respondent furnish the names and home addresses
of employees in the bargaining unit. Further, that the information
requested is normally maintained by Respondent in the regular course of
business; that it is reasonably available and necessary for full and
proper discussion, understanding and negotiation of collective
bargaining subjects; that the information does not constitute guidance,
advice, counsel or training for management officials or supervisors
relating to collective bargaining.
The Complaint also alleged that on or about September 10, 1986
Respondent refused to furnish the data requested and thus did not comply
with the provisions of Section 7114(b)(4) of the Statute. Accordingly,
it is alleged that Respondent violated Section 7116(a)(1), (5) and (8)
of the Statute.
Respondent's Answer, /1/ dated January 16, 1987, admits the request
for, and denial of, the information sought by the Union. While
admitting that the information does not constitute guidance, advice,
counsel or training for management officials, the Answer denies that the
data is normally maintained by Respondent in the regular course of
business. It also denies that the data is reasonably available and
necessary for full and proper discussion, understanding and negotiation
of collective bargaining subjects. Respondent also denied 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, Respondent filed a brief with the
undersigned which has been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the certified exclusive representative of Respondent's non-supervisory
and non-professional employees assigned to its Regional and District
Offices.
2. At all times material herein both the Union and Respondent have
been parties to a collective bargaining agreement covering the aforesaid
unit employees.
3. Respondent maintains six regional offices which are located in
New York, Washington, D.C., /2/ Atlanta, Dallas, Chicago and San
Francisco. It also has four district offices. One at Los Angeles is
attached to the San Francisco Region; another at Boston is subordinate
to the New York Regional Office; a third is located in Philadelphia and
under the Washington, D.C. Region; and the fourth is at Miami and
subordinate to the Atlanta Region.
4. The bargaining unit comprises approximately 145 employees. About
75 of them are stationed at Washington, D.C. while the remainder are
assigned to the various regional offices throughout the United States.
5. The Minority Business Development Agency (MBDA) itself has no
personnel office. The Office of Personnel in the Office of the
Secretary, within the Department of Commerce, handles the personnel
administration and payroll functions and documents for MBDA employees
stationed in Washington, D.C. The Director of Personnel in Civil Rights
at the Washington, D.C. headquarters is in charge of personnel
administration. There is also a personnel officer in charge of
operation for MBDA personnel located within the Hoover Building. This
office services other departments within the Department of Commerce.
Personnel work, including payroll documents, for the regional offices
are handled by the Regional Administrative Support Center (RASC)
throughout the country. The support centers are centralized
administrative units, developed by the Commerce Department; they
service all Department of Commerce components in a given geographic
area. These support centers report to a component within the Department
of Commerce of the National Oceanographic and Atmospheric Administration
(NOAA), and the individuals are NOAA employees.
6. MBDA does not keep a list of employees' home addresses nor
maintain official personnel folders. Home addresses of the Washington
regional personnel in the Hoover Building are kept by the Office of
Personnel of the Department of Commerce. That office retains the
official files for each individual working in the Hoover Building, which
would include MBDA employees and those employed by other agencies. The
Official Personnel Files for employees of MBDA working in regional
offices are kept in the respective RASCs. The files for MBDA employees
in the New York Regional Office are kept in Norfolk, Virginia; files
for those employees in the Washington Region are in the Hoover Building
in Washington, D.C.; files for Atlanta and Chicago regional employees
are kept in Kansas City; the files for Dallas employees are at Boulder,
Colorado; and the Official Personnel Files for San Francisco regional
employees are at Seattle, Washington.
7. The names and home addresses of MBDA employees would be found in
the Official Personnel File for each person. Record facts show that the
Office of Personnel in Washington can communicate with RASC personnel by
phone. There is a computer system to funnel information between regions
and the main Department of Commerce office, and there is an express mail
service which could be used. The administrative officer for MBDA,
George S. Parish, testified that, if asked, he would obtain names and
home addresses by asking all personnel offices at the regional
administrative support centers to run a computer list from their records
and give him the information.
8. By memorandum dated July 28, 1986 Herman Rivera, President of the
Union, requested Respondent's Director, James H. Richardson, to provide
the Union with the names and home addresses of all bargaining unit
members. Rivera also stated therein that the data was required in order
to provide the employees information concerning their rights under the
negotiated agreement. /3/ He testified at the hearing that he wanted
the information due to his concern about a possible reorganization and
to discharge his responsibilities.
9. In a reply memorandum dated September 10, 1986 Respondent's
Personnel Management Specialist, Kathy Struck, forwarded to Rivera a
list of unit employees and their office addresses. Respondent's
official also stated therein that, while it appeared the request was
appropriate for distribution under Article 11, Section 5 of the
agreement, the agency was deferring release of home addresses due to the
confusion in current case law and FLRA's pending policy decision.
10. The home addresses of unit employees were not furnished by
Respondent and the Union has not received same. /4/
Conclusions
The central issue herein is whether Respondent was required, in
accordance with Section 7114(b)(4) of the Statute, to furnish the names
and home addresses of the unit employees to the Union.
An agency is charged with a duty, under Section 7114(b)(4) of the
Statute to supply the exclusive representative, upon request, and to the
extent not prohibited by law, data (1) which is normally maintained by
the agency in the regular course of business; (2) which is reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining;
(3) which does not constitute guidance, advice, counsel or training
provided for management officials or supervisors relating to collective
bargaining. /5/
Several contentions are made by Respondent in asserting that it has
no duty herein to furnish the data sought by the Union. The agency
insists that (1) under the Privacy Act, 5 U.S.C. 552 (b)(6), the
information need not be furnished, and its disclosure is thus prohibited
by law; (2) the data is not normally maintained by the agency in the
regular course of business; (3) the data is not reasonably available;
(4) the names and home addresses of unit employees are not necessary for
full discussion, understanding and negotiation of collective bargaining
subjects.
The lead case involving several of the defenses raised by Respondent
herein is Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA 788. /6/ The Authority rejected the argument that the
disclosure of names and home addresses of employees was prohibited by
law, namely the Privacy Act. It concluded that the public interest,
which is furthered by providing the Union with an efficient method to
communicate with employees it represents, far outweighs the privacy
interest of employees to these names and addresses. Moreover,
disclosure of the data would not constitute an unwarranted invasion of
personal privacy and does not fall within the (b)(6) exemption to the
Freedom of Information Act (FOIA). Thus, its disclosure is required
under FOIA and under (b)(2) of the Privacy Act.
The Authority also concluded, in the second Farmers Home case, supra,
that names and home addresses of unit employees are necessary to enable
a union to identify and communicate with bargaining unit members and
thus effectively represent them. Moreover, when an agency attempts to
show that alternative means of communication are available, the
Authority has stated it will not review the adequacy of such alternative
means. The mere existence of such methods is insufficient to justify a
refusal to release the names and home addresses of the employees. /7/
In view of the Authority's decisions, as cited, the undersigned
rejects Respondent's defense that the disclosure of names and home
addresses is prohibited by the Privacy Act, as well as its further
defense that the data is not necessary for full discussion,
understanding and negotiation of collective bargaining matters.
It is stressed by Respondent that MBDA does not normally maintain the
names and addresses in the regular course of business. In support of
this argument Respondent adverts to the fact that it has no personnel
office, keeps no list of this information, and does not maintain
official personnel folders. It insists that the information is
maintained by the Department of Commerce's Office of Personnel for
Washington personnel of Respondent; that the Administrative Support
Centers which report to National Oceanographic and Atmospheric
Administration (NOAA), handle the data for MBDA's regional offices.
The undersigned is not persuaded that such reasoning is valid.
Respondent MBDA is an entity of the Department of Commerce. Moreover,
while the regional administrative support centers handle Respondent's
personnel matters -- which includes the data sought herein -- these
centers were developed and created by the Department of Commerce. Even
NOAA, to whom these centers report, is part of the Commerce Department.
One must employ a fiction to conclude that MBDA and Commerce are
separate entities having no relationship. The latter handles the
personnel files and payroll activities for Respondent, and the NOAA
component of Commerce does likewise for the MBDA regions. As such, the
names and home addresses are being kept by and for Respondent in the
normal course of business. /8/
Respondent also insists that it has not been established that the
names and home addresses of the unit employees were reasonably
available. Record facts show that the data is kept at Washington, D.C.;
Norfolk, Virginia; Kansas City, Missouri; Seattle, Washington; and
Boulder, Colorado. At each location Official Personnel Files for the
MBDA employees are retained by the Department of Commerce centers.
Respondent's administrative officer testified he would, if called upon,
request the names and home addresses from the support centers; that the
records thereat and at Washington, D.C. contain the names and home
addresses of the MBDA employees. The record supports the conclusion
that such data is available to Respondent, and I reject its defense to
the contrary. /9/
Accordingly, and based upon the foregoing, I conclude that the
refusal by MBDA to furnish the names and home addresses to the Union was
a failure to comply with Section 7114(b)(4) of the Statute and was a
violation of Section 7116(a)(1), (5) and (8) of the Statute. It is
therefore recommended that the Authority issue the following:
ORDER /10/
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 Minority Business Development Agency,
Washington, D.C., shall:
1. Cease and desist from:
(a) Refusing and failing to furnish, upon request of the
National Federation of Federal Employees, Local 2008, the
exclusive representative of certain of its employees, the names
and home addresses of all employees in the represented unit.
(b) In any like or related manner interfering with, restraining
or coercing its employees in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Request the Office of Personnel in the Department of
Commerce and/or its support centers for the names and home
addresses of all employees of the Minority Business Development
Agency in the unit represented by the National Federation of
Federal Employees, Local 2008, the exclusive bargaining
representative and, upon receipt thereof, furnish the National
Federation of Federal Employees, Local 2008, with the said names
and home addresses of the unit employees.
(b) Post at its facilities where bargaining unit employees
represented by National Federation of Federal Employees, Local
2008 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 of the
Minority Business Development Agency, 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 III, Federal
Labor Relations Authority, Washington, D.C., in writing within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
/s/ William Naimark
Administrative Law Judge
Dated: June 8, 1987
Washington, D.C.
FOOTNOTES
(*) The Respondent asserts, among other things, that the Judge made
several technical factual misstatements in his findings of fact. The
Judge's inadvertent misstatements are hereby corrected to note that (1)
the Washington, D.C. regional office of the Minority Business
Development Agency and the headquarters office are different offices;
(2) the Charging Party's request for information was made pursuant to
the Statute; and (3) the Respondent attempted to introduce evidence on
alternative means of communication available to the Union.
(1) Attached to the Answer was a Motion to Correct the Transcript.
No objections having been interposed thereto, Respondent's Motion is
granted and the Transcript is corrected as requested.
(2) This office, which is in the Hoover Building, is the headquarters
of the agency.
(3) Rivera sought the material pursuant to Article 11, Section 7 of
the agreement. Neither party introduced the said agreement in evidence
at the hearing.
(4) At the hearing Respondent's counsel indicated it wished to
introduce evidence as to alternative means available to the Union for
obtaining the home addresses. Further he sought to explore the
applicability of the Privacy Act by means of evidence to be adduced.
The undersigned allowed Respondent to make an offer of proof in these
respects, which was rejected, and refused to permit evidence as to their
particular issues on the ground that the Authority has, in its recent
decisions, declared that such defenses have no merit.
(5) Respondent does not contend that the data sought was, in fact,
guidance, advice, counsel or training for its officials or supervisors.
(6) The case was before the Authority pursuant to a remand from the
U.S. Court of Appeals for the District of Columbia Circuit. In the
previous decision, 19 FLRA No. 21, the Authority held that the data was
prohibited by the Privacy Act. In this later decision it reversed that
holding.
(7) Subsequent decisions reflect that the Authority has reaffirmed
its conclusions reached in the later Farmers Home, case, supra. See
Department of Energy, Headquarters Office, 26 FLRA No. 68; Department
of the Navy, Naval Undersea Warfare Engineering Station, Keyport,
Washington, 26 FLRA No. 65; Department of Health and Human Services,
Region V, Chicago, Illinois, 26 FLRA No. 56.
(8) To hold otherwise would result in an anomalous situation. In the
event one sought the data from the Commerce Department, that body could
contend it is not the employer, has no bargaining relationship with the
Union, and the latter should look to MBDA for the names and home
addresses. At the least, it should be recognized that an agency
relationship prevails between MBDA and the Department of Commerce, and
the latter retains the data for Respondent.
(9) Note is also taken that Respondent did furnish the unit employees
and their office addresses, and that a computer system exists between
the region and the main Department of Commerce headquarters.
(10) Since the record reflects that the data could be procured
through the Department of Commerce and its centers, the recommended
order provides that Respondent request the Department for the said names
and home addresses.
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Federation of Federal Employees, Local 2008, the exclusive
representative of certain of its employees, the names and addresses of
all employees in the represented unit.
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 request the Office of Personnel in the Department of Commerce
and/or its support centers for the names and home addresses of all
employees of the Minority Business Development Agency in the unit
represented by the National Federation of Federal Employees, Local 2008,
the exclusive bargaining representative, and upon receipt thereof,
furnish the National Federation of Federal Employees, Local 2008 with
the said names and home addresses of the unit employees.
. . . (Agency or Activity)
Dated: . . . By: (Signature)
(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 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.
28 FLRA NO. 100
AFGE, Local 1735, and Dep't of the Navy, Public Works Dep't, Naval
Air Station, Kingsville, Tex., Case No. 0-NG-1428 (Decided August 31,
1987)
STATUTE
7105(a)(2)(E)
7117(c)(2)
SUBJECT MATTER INDEX ENTRIES
NEGOTIABILITY PROCEDURE
TIMELINESS (7117(c)(2))
APPEAL UNTIMELY FILED
TIME LIMIT MAY NOT BE EXTENDED OR WAIVED BY THE AUTHORITY
DIGEST NOTES
The Authority dismissed a union's petition for review of an agency's
allegation of nonnegotiability as untimely filed.
Case No. 0-NG-1428
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1735
Union
and
DEPARTMENT OF THE NAVY PUBLIC WORKS DEPARTMENT NAVAL AIR STATION
KINGSVILLE, TEXAS
Activity
ORDER DISMISSING PETITION FOR REVIEW
This case is before the Authority pursuant to section 7105(a)(2)(E)
of the Federal Service Labor-Management Relations Statute and section
2424.1 of the Authority's Rules and Regulations on a petition for review
of negotiability issues filed by the Union. For the reasons indicated
below, it has been determined that the Union's petition for review was
untimely filed and must be dismissed on that basis.
Under section 7117(c)(2) of the Statute and section 2424.3 of the
Authority's Rules and Regulations, the time limit for filing a petition
for review of negotiability issues is 15 days after service on the Union
of the Agency's allegation that the duty to bargain in good faith does
not extend to the matter proposed to be bargained. Further, under
section 2429.23(d) of the Authority's rules of procedure, the time limit
established in section 7117(c)(2) of the Statute may not extended or
waived by the Authority.
The documents the Union submitted with its petition for review
indicate that the Activity's written allegation that a certain Union
proposal is nonnegotiable is dated June 30, 1987. The allegation
apparently was served on the Union by mail on the same date. The
Activity's allegation of nonnegotiability was not specifically requested
by the Union but was in response to the Union's written proposal dated
June 15, 1987.
Where, as in the present case, a union is served with an activity's
written allegation of nonnegotiability that has not been specifically
solicited by the union in writing, the union may exercise its right to
submit a written request to the activity for another allegation, and
then file a petition for review of the negotiability dispute with the
Authority in accordance with section 2424.3 of the Rules when the
activity subsequently responds (or fails to respond); or file a timely
petition for review of the unsolicited allegation of nonnegotiability.
In the subject case, the Union elected to file its appeal from the
Activity's unsolicited allegation of June 30, 1987. /1/ Therefore,
under section 2424.3 of the Authority's Rules and Regulations as well as
sections 2429.21(b) /2/ and 2429.22 /3/ which also are applicable to
computation of the time limit here involved, the petition for review in
order to be timely filed 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 July 20, 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 Union's petition for review was not filed with the
Authority at its national office in Washington, D.C., until July 23,
1987. The record indicates that the Union first mailed its petition for
review dated July 13, 1987, to Region VI of the Federal Labor Relations
Authority in Dallas, Texas. Region VI received the petition on July 15,
1987. The Regional Director by letter dated July 17, 1987, returned the
petition to the Union with copies of the Authority's Rules and
Regulations, the Federal Service Labor-Management Relations Statute, and
a Guide to the Statute. The Regional Director also explained that
negotiability appeals must be filed with the national office of the
Authority. /4/ As the subject petition dated July 22, 1987, was not
mailed to the Authority's national office until July 23, 1987 -- date of
postmark -- it was untimely filed.
Accordingly, as the Union's petition for review was untimely filed,
it is hereby dismissed.
For the Authority.
Issued, Washington, D.C., August 31, 1987.
/s/ Harold D. Kessler
Director of Case Management
FOOTNOTES
(1) In its petition for review, the Union states that it did not
receive the Activity's allegation of nonnegotiability until July 8,
1987. However, the period for filing the instant petition for review
began on the date the Activity's allegation was served on the Union;
that is, deposited in the mail (see section 2429.27(d) of the
Authority's Rules and Regulations), and not on the date the allegation
was received. See American Federation of Government Employees, AFL-CIO,
Council 157 and Department of the Treasury, U.S. Mint, 23 FLRA No. 66
(1986).
(2) Subsection 2429.21(b) of the Authority's Rules and Regulations,
provides in pertinent part:
Section 2429.21 Computation of time for filing papers.
. . . . . . .
(b) Except when filing an unfair labor practice charge . . . ,
a representation petition . . . , and a request for extension of
time . . . , when this subchapter requires the filing of any paper
with the Authority . . . , the date of filing shall be determined
by the date of mailing indicated by the postmark date. If no
postmark date is evident on the mailing, it shall be presumed to
have been mailed 5 days prior to receipt. If the filing is by
personal delivery, it shall be considered filed on the date it is
received by the Authority . . . .
(3) Section 2429.22 of the Authority's Rules and Regulations,
provides in pertinent part:
Section 2429.22 Additional time after service by mail.
. . . . . . .
(W)henever a party has the right or is required to do some act
. . . within a prescribed period after service of a notice or
other paper upon such party, and the notice or paper is served on
such party by mail, five (5) days shall be added to the prescribed
period . . . .
Application of section 2429.22 by the Authority is explained in
United States Department of Justice, Bureau of Prisons, Metropolitan
Correctional Center, New York, New York, 25 FLRA No. 7 (1986).
(4) Since the Authority's inception in 1979, its Rules and
Regulations have required that petitions for review of agency
allegations of nonnegotiability must be filed with the Authority at its
national office in Washington, D.C.
28 FLRA NO. 99
Nat'l Weather Service, Southern Region, North Little Rock, Ark., and
Nat'l Weather Service Employees Org., MEBA (Carnes, Arbitrator), Case
No. 0-AR-1379 (Decided August 31, 1987)
STATUTE
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
SUSPENSION
SUSPENSION RESCINDED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE LAW
LAW NOT SPECIFIED
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
DISAGREEMENT WITH ARBITRATOR'S REASONING AND CONCLUSIONS
DIGEST NOTES
A union official was suspended for one day for having written a
letter concerning internal union business as well as labor-management
relations to another union official while on duty, using the agency's
computer, and without asking permission or requesting official time.
The union official filed a grievance.
The arbitrator determined that a small portion of the grievant's
letter had concerned internal union business; thus, some discipline was
warranted, but not a suspension. He determined that the agency had
erred in denying the grievant the right to have his proposed suspension
reviewed by a neutral decision-maker, afforded the grievant the neutral
person. The arbitrator found lastly that the filing of a related
grievance by the agency had not been done in bad faith and did not
constitute an unfair labor practice. The arbitrator sustained the
grievance in part, reducing the suspension to an official reprimand.
In its exceptions, the union claimed that the writing of the letter
was a proper use of duty time, and that its post-hearing brief
established that the grievant's suspension constituted an unfair labor
practice.
The Authority ruled that the union's exceptions did not provide a
basis for finding the arbitrator's award deficient, citing cases in
which exceptions had been rejected as disagreements with an arbitrator's
findings of fact, reasoning, and conclusions.
Case No. 0-AR-1379
U.S. DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE, SOUTHERN REGION, NORTH LITTLE
ROCK, ARKANSAS
Agency
and
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION MEBA, AFL-CIO
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Charles N. Carnes filed by the Union under section 7122 of
the Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The grievant, a Union official, was given a 1-day suspension for
writing a letter concerning internal Union business as well as
labor-management relations to another Union official. The grievant
wrote the letter while on duty, used the Agency computer, and did not
ask permission or request official time. A grievance was filed
contesting the suspension, and the matter was submitted to arbitration.
The Arbitrator framed the issues to be resolved as (1) whether the
suspension was for just cause and promoted the efficiency of the
service, (2) whether the grievant was deprived of a neutral
decisionmaker to evaluate the proposed suspension, and (3) whether the
Agency committed an unfair labor practice when it filed a related
grievance against the Union.
As to the first issue, the Arbitrator found that although the
grievant's letter primarily concerned labor-management relations, a
small portion of the letter concerned internal Union business and,
therefore, discipline was warranted. He concluded, however, that the
1-day suspension did not promote the efficiency of the service and
reduced the suspension to an official reprimand.
As to the second issue, the Arbitrator found that the grievant was
improperly denied the right to have a neutral decisionmaker evaluate his
notice of proposed suspension. He concluded, however, that the Agency's
error was corrected at a subsequent step of the grievance procedure and
that the error was not harmful.
As to the third issue, the Arbitrator found that there was no
evidence that the related grievance filed by the Agency had been brought
in bad faith or with an impermissible motive. He concluded that the
Agency did not commit an unfair labor practice by filing the grievance.
Accordingly, as his award the Arbitrator denied the grievance in part
and sustained it in part.
III. Exceptions
In its first exception, the Union reiterates the arguments made
before the Arbitrator that writing the letter while on duty was a proper
use of duty time and that it did not interfere with the Agency's
operation. The Union contends that the Arbitrator erred in finding
otherwise.
In its second exception, the Union argues that its post-hearing brief
establishes that the grievant's suspension constituted an unfair labor
practice and contends that the Arbitrator erred as a matter of law in
finding otherwise.
IV. Decision
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. 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 which constitute disagreement with
an arbitrator's findings of fact, reasoning and conclusions based on the
evidence before him, and an attempt to relitigate the merits of the
grievance before the Authority do not provide a basis for finding an
award deficient). Accordingly, the Union's exceptions must be denied.
Issued, Washington, D.C., August 31, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 98
Dep't of the Air Force, 832D Combat Support Group, Luke Air Force
Base, Ariz., and AFGE, Local 1547, Case No. 8-CA-70135 (Decided August
28, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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. 552 (PRIVACY ACT)
DIGEST NOTES
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. 8-CA-70135
DEPARTMENT OF THE AIR FORCE, 832D COMBAT SUPPORT GROUP, LUKE AIR
FORCE BASE, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1547, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated proceeding is before the Authority under section
2429.1(a) of our Regulations based on the parties' stipulation of facts.
The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (8) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to provide the Union with the names and home
addresses of bargaining unit employees. The Respondent filed a brief.
/*/ For the reasons below, we find that the Respondent has committed the
unfair labor practices as alleged.
II. Facts
The Union represents a unit of nonprofessional employees paid from
appropriated funds and serviced by the Luke Air Force Base Central
Civilian Personnel Office. There are approximately 1006 employees in
the unit. By letters dated October 10 and 27, 1986, the Union requested
the names and home addresses of all employees in the exclusive unit.
The Respondent refused to provide the information to the Union by
letters dated October 22 and 28, 1986.
The parties have stipulated that the information is maintained in the
Respondent's appropriated fund payroll files and may be obtained from
there. However, the payroll records do not identify employees by
bargaining unit status. That information is contained in the
Respondent's personnel records. Furthermore, there is no automated
record at the Respondent's facility with the names, home addresses and
unit status of appropriated fund civilian employees. The parties
further stipulate that the information does not constitute guidance,
counsel, advice, or training provided for management officials or
supervisors relating to collective bargaining.
III. Positions of the Parties
The Respondent concedes that our decision on remand 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 the Farmers Home Administration Finance
Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23,
1986), is dispositive of several issues, but urges us to reverse that
decision. The Respondent argues that release of the names and home
addresses of employees is contrary to the Privacy Act, and also that
availability of alternate methods of communication with employees would
in some situations be sufficient to preclude the requirement of release
of home addresses.
In addition, the Respondent argues that certain requirements of
section 7114(b)(4) of the Statute are not met here. Specifically, it
argues that the records are not normally maintained in the regular
course of business as required by section 7114(b)(4)(A) because (1)
names and addresses are in payroll records which are not identified by
bargaining unit status; and (2) there is no automated record at the
Respondent's facility which contains the names, home addresses and
bargaining unit status of appropriated fund civilian employees. The
Respondent concedes that a list could be created manually by going
through the records of the employees. Because such a list would have to
be created, the Respondent also argues that the data is not "reasonably
available" as required by section 7114(b)(4)(B).
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of the names and home addresses of bargaining unit employees to
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 of section 7114(b)(4). Our decision in Farmers Home
analyzed the two exceptions to the Privacy Act's bar to disclosure of
personal information pertinent to the release of employees' names and
home addresses: exception (b)(2), concerning the Freedom of Information
Act, and exception (b)(3), relating to "routine use" of information. We
found that both exceptions to the Privacy Act's bar applied so as to
authorize release of the information under the Privacy Act, and the
Respondent has conceded that under Farmers Home, the requirements of the
Privacy Act have been met. We also found in Farmers Home that the
release of the information is generally required without regard to
whether alternative means of communication are available.
Although the Respondent argues that the information sought by the
Union is not normally maintained or reasonably available, the
stipulation clearly shows that the names and home addresses of employees
are maintained and that identification of employees as to unit status
also is maintained. Consequently, we find that the requirement of
section 7114(b)(4)(A) has been met and that the information is
reasonably available within the meaning of section 7114(b)(4)(B). See,
for example, Department of the Navy, Naval Submarine Base, New London
(New London, Connecticut), 27 FLRA No. 85 (1987). Consistent with our
decision in Farmers Home, we therefore find that the Respondent was
required to furnish the Union with the names and home addresses of the
employees in the bargaining unit. Its refusal to do so violated section
7116(a)(1), (5) and (8) of the Statute.
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 Air Force, 832d Combat Support Group,
Luke Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 1547, AFL-CIO, the exclusive representative
of a unit of its employees, the names and home addresses of all
bargaining unit employees it represents located at Luke Air Force Base,
Arizona.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of rights assured them by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, Local
1547, AFL-CIO, the exclusive representative of a unit of its employees,
with the names and home addresses of all bargaining unit employees it
represents located at Luke Air Force Base, Arizona.
(b) Post at all its facilities at Luke Air Force Base, Arizona, where
bargaining unit employees represented by the American Federation of
Government Employees, Local 1547, AFL-CIO, are located, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer, 832d Combat Support Group, Luke Air Force Base,
Arizona, 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 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., August 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The General Counsel's brief was untimely filed and has not been
considered.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 1547, AFL-CIO, the exclusive
representative of a unit of our employees, the names and home addresses
of all bargaining unit employees located at Luke Air Force Base,
Arizona.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 1547, AFL-CIO, the exclusive representative of a unit of our
employees, with the names and home addresses of all bargaining unit
employees located at Luke Air Force Base, Arizona.
. . . (Activity)
Dated: . . . By: (Signature) (Title)
(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, CA 90071 and
whose telephone number is: (213) 894-3805.
28 FLRA NO. 97
VA Medical Center, Leavenworth, Kan., and AFGE, Local 85 (Grether,
Arbitrator), Case No. 0-AR-1284 (Decided August 28, 1987)
STATUTE
7103(a)(9)
7106(a)(1)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7106(a)(1)
ARB AWARDS, REMEDIES ORDERED BY ARBS
INVESTIGATIVE FILES
FILE ORDERED EXPUNGED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7103(a)(14)
7106(a)(1)
INTERNAL SECURITY PRACTICES, DETERMINATION OF, RESERVED MGM'T RT
EXAMINATIONS AND INVESTIGATIONS OF EMPLOYEES
DIGEST NOTES
A hospital employee was given a letter of admonishment after
investigation of a complaint that he had violated a patient's privacy.
The employee filed a grievance. Before the grievance reached
arbitration, the director of the Medical Center determined that the
evidence was insufficient to support a letter of admonishment, and
rescinded the letter. The grievant was given the personnel folder on
the admonishment, but he was not given the administrative investigation
file on the matter, and it was not expunged. The grievance therefore
proceeded to arbitration on the issue of whether the grievant was
entitled to have the investigation file expunged. The arbitrator
determined that the grievant was so entitled, noting that the agency
itself had determined that there was insufficient evidence against the
grievant and that the file, therefore, could not be used against him.
Concluding that the agency had no legitimate use for the file, the
arbitrator sustained the grievance and ordered the agency to expunge the
investigative file.
In its first exception, the agency argued that the award was
deficient because the matter involved -- restricting management's access
to investigative files, as framed by the agency -- did not concern a
condition of employment. The Authority disagreed, and held that the
matter did involve the conditions of employment of the grievant, and
that the matter was within the definition of "grievance" of section
7103(a)(9).
In its second exception, the agency alleged that the arbitrator had
abridged the agency's section 7106(a)(1) right to determine its internal
security practices by directing the agency to destroy the investigative
file. Addressing the arbitrator's conclusion that the agency had no
legitimate use for the file, the agency stated that a possible use for
the file would be in defense of any suit alleging invasion of privacy
filed by the patient who had made the original allegation. The
Authority agreed that the order to destroy the file conflicted with
management's right to determine its internal security practices. The
Authority modified the award to provide that no information from the
investigative file could be used against the grievant.
Case No. 0-AR-1284
VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 85
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Henry M. Grether 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/
II. Background and Arbitrator's Award
The dispute in this case concerns an internal investigation initiated
when a patient complained that the grievant, a nurse's aide, had
disclosed medical information about the patient to a third party in
violation of the patient's privacy. As a result of the investigation,
the grievant was given a letter of admonishment over which he filed a
grievance. In this grievance, the grievant denied he had released any
information or violated the patient's privacy. He requested that the
admonishment be rescinded and that reference to the incident be removed
from all records and files. At the third step of the grievance
procedure, the Medical Center Director decided that the evidence was
insufficient and rescinded the admonishment. The personnel folder
relating to the admonishment was given to the grievant. However, the
administrative investigation file was not released to the grievant and
was not expunged. Consequently, the grievance in this case was filed
and submitted to arbitration on the issue of whether the grievant was
entitled to have the administrative investigation file expunged.
The Arbitrator concluded that because management had decided that
there was insufficient evidence to admonish the grievant, the
investigation file could not be used against the grievant and there was
no further use for this file. Accordingly, he determined that the
grievance should be sustained because there was no apparent legitimate
need or use for the Activity to retain the file. His award was as
follows: "The grievance is sustained and the (Activity) is directed to
expunge the investigation file in question."
III. First Exception
A. Contentions
The Agency contends that the award is contrary to the Statute.
Specifically, the Agency argues that the award is deficient because it
does not concern a condition of employment. In support, the Agency
cites the Authority's decision in American Federation of Government
Employees, AFL-CIO, National Immigration and Naturalization Service
Council and U.S. Department of Justice, Immigration and Naturalization
Service, 8 FLRA 347 (1982) (Proposal 1), reversed as to other matters
sub nom. Department of Justice, INS v. FLRA, 709 F.2d 724 (D.C. Cir.
1983). In Department of Justice, INS, the Authority found that a
proposal did not concern conditions of employment because it only
concerned management's access to internal investigation files. The
Agency argues that the grievance and award, which similarly concern
restricting management's access to the disputed investigation file, do
not concern conditions of employment of unit employees. Consequently,
the award is beyond the scope of grievance and arbitration prescribed by
the Statute.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is
contrary to the Statute. We find that the grievance demanding that the
investigation file be expunged in view of the rescission of the
admonishment clearly relates to the work situation and employment
relationship of the grievant and is within the definition of grievance
set forth in the Statute. Section 7103(a)(9) broadly defines grievance
as a complaint by any employee concerning any matter relating to the
employment of the employee. Accordingly, the award sustaining that
grievance and directing that the file be expunged and not be used
against the grievant in the future has not been shown to be deficient on
this basis. See Leavenworth Veterans Administration Medical Center and
Local No. 85, American Federation of Government Employees, AFL-CIO, 27
FLRA No. 35 (1987); General Services Administration and American
Federation of Government Employees, AFL-CIO, National Council 236, 27
FLRA No. 1 (1987) and cases cited in the decision; Local R-1-185,
National Association of Government Employees and Adjutant General of the
State of Connecticut, 25 FLRA No. 36 (1987). Furthermore, we do not
view the decision cited by the Agency as establishing otherwise. The
Authority clearly indicated in that case that the proposal would have
concerned conditions of employment if it had related to management's
consideration or use of internal investigation files in connection with
personnel actions affecting unit employees. Management's consideration
and other use of the disputed investigation file in connection with the
grievant was precisely what was grieved and arbitrated in this case.
Accordingly, this exception is denied.
IV. Second Exception
A. Contentions
The Agency contends that the award is contrary to section 7106(a)(1)
of the Statute. Specifically, the Agency argues that by effectively
directing that the Activity destroy the investigation file, the award
conflicts with management's right to determine its internal security
practices. The Agency maintains that under section 7106(a)(1), only
management and not the Arbitrator can determine whether information from
an internal investigation is necessary for retention. The Agency notes,
in particular, that one purpose for retention of the investigation file
in this case is to have a record in the event that it becomes necessary
to defend a law suit by the patient who claimed an invasion of privacy.
B. Analysis and Conclusions
We conclude that by determining that management had no legitimate use
for retaining the investigation file and by directing that it be
expunged, the award conflicts with management's right to determine its
internal security practices. In National Federation of Federal
Employees, Local 1308 and General Services Administration, 18 FLRA 789
(1985), the Authority found that a proposal providing for access to
information regarding internal investigations conflicted with
management's right to determine its internal security practices. The
Authority explained that management has the right under section
7106(a)(1) to determine matters relating to the disclosure and
protection of information concerning internal investigations. 18 FLRA
at 797. In this case we specifically find that management has the right
under section 7106(a)(1) to determine that information concerning the
internal investigation must be retained and is not to be released or
expunged because of the potential for a claim against the Agency even
though the information did not support a disciplinary action against the
grievant. Consequently, the award is contrary to section 7106(a)(1) and
must be modified. /2/
V. Decision
Accordingly, the award is modified to provide as follows:
The grievance is sustained and the Activity may not use the
information from the investigation file in dispute against the
grievant in the future.
Issued, Washington, D.C., August 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) In its opposition, the Union contends that the Agency's
exceptions were untimely filed. However, we find under our Regulations
that the exceptions were timely.
(2) In view of this decision, it is unnecessary to address the
Agency's other exceptions.
28 FLRA NO. 96
Dep't of the Army, Dep't of Pathology, Moncrief Army Community
Hospital, Fort Jackson, S.C., and Local 1214, NFFE, Case No. 4-CU-70008
(Decided August 28, 1987)
SUBJECT MATTER INDEX ENTRIES
REPRESENTATION PROCEDURE
NO BASIS FOR GRANTING REVIEW OF REGIONAL DIRECTOR'S DECISION
DISAGREEMENT WITH REGIONAL DIRECTOR'S FINDINGS
DIGEST NOTES
The Authority denied the activity's application for review of a
Regional Director's Decision and Order on Petition for Clarification of
Unit.
Case No. 4-CU-70008
DEPARTMENT OF THE ARMY, DEPARTMENT OF PATHOLOGY, MONCRIEF ARMY
COMMUNITY HOSPITAL, FORT JACKSON, SOUTH CAROLINA
Activity
and
LOCAL 1214, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Petitioner
ORDER DENYING APPLICATION FOR REVIEW
On July 2, 1987, the Department of the Army, Department of Pathology,
Moncrief Army Community Hospital, Fort Jackson, South Carolina (the
Activity) filed a timely application for review pursuant to section
2422.17(a) of the Authority's Rules and Regulations, seeking to set
aside the Regional Director's Decision and Order on Petition for
Clarification of Unit in the above-named case. In the Decision and
Order, the Regional Director found that the incumbents in the position
of Medical Technologist are not "professional employees" within the
meaning of the Federal Service Labor-Management Relations Statute and
that the Petitioner's existing unit of recognition should therefore be
clarified as requested to include Medical Technologists.
In its application for review, the Activity contends, in essence,
that compelling reasons exist within the meaning of section 2422.17(c)
of the Authority's Rules and Regulations for granting the application.
Specifically, the Activity contends that the Regional Director has
departed from Authority precedent and that the decision was clearly
erroneous on substantial factual issues.
On consideration of the Activity's application for review, we
conclude that no compelling reason exists for granting the application.
The Regional Director's decision has not been shown to raise a
substantial question of law or policy because of a departure from
Authority precedent, or to be clearly erroneous on a substantial factual
issue so as to have prejudicially affected the rights of any party.
Accordingly, pursuant to section 2422.17(f)(3) of our Rules and
Regulations, the application for review of the Regional Director's
Decision and Order on Petition for Clarification of Unit is denied.
Issued, Washington, D.C., August 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 95
U.S. Army Armor Center and Ft. Knox, and AFGE, Local 2302 (Mulhall,
Arbitrator), Case No. 0-AR-1354 (Decided August 27, 1987)
STATUTE
7106(a)(2)(B), (C)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
COMPLY WITH AGENCY REGULATION
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
FAILED TO INTERPRET AGENCY REGULATION PROPERLY
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(B)
7106(a)(2)(C)
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
DISAGREEMENT WITH ARBITRATOR'S REASONING AND CONCLUSIONS
POSITIONS, FILLING OF
ARBITRATION AWARD
COMPLY WITH AGENCY REGULATION
DIGEST NOTES
An employee's supervisor decided to appoint him to a higher position.
His decision was reviewed by a division chief, who told the supervisor
to reconsider his decision. The supervisor then selected another
candidate for the position. The employee filed a grievance. The
arbitrator determined that the issue was whether the agency had violated
the parties' agreement by its review and reversal of the decision to
appoint the grievant. The arbitrator found that the re-evaluation of
the selection in the instant case had been justified, because the person
selected had had more relevant experience than had the grievant. He
found that the division chief had not had the authority to review the
final selection for the vacancy, but concluded that this was but a de
minimis violation. The arbitrator denied the grievance substantially,
but sustained it in part, declining to award the grievant the position
that the agency had denied him, but ordering the agency to comply with
agency regulations in all future selections.
Both the union and the agency filed exceptions to the arbitrator's
award. The union argued that the arbitrator had interpreted the
relevant agency regulation improperly, and that the grievant was
entitled to the position. The Authority rejected the union's argument
as mere disagreement with the arbitrator. The agency objected to the
arbitrator's order that the agency comply with its regulation, arguing
that the order was an infringement upon the agency's section
7106(a)(2)(B) and (C) rights to assign work and to make selections. The
Authority rejected the agency's argument as an attempt to relitigate the
matter.
Case No. 0-AR-1354
U.S. ARMY ARMOR CENTER AND FT. KNOX
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2302
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator W. Thomas Mulhall filed by the Department of the Army
(Agency) and by the Union under section 7122(a) of the Federal Service
Labor-Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. /*/ The Agency filed an opposition
to the Union's exception.
II. Background and Arbitrator's Award
The grievance in this case concerned the supervisor's decision to
appoint the grievant to the position of Boiler Plant Operator, WG-10,
and the subsequent reversal of that decision following review by a
higher level management official.
The grievant was selected for the boiler plant operator position by
the supervisor of the boiler plant section. The selection was reviewed
by the chief of the Utilities and Structure Division. The chief
determined that the grievant did not appear to be as qualified as the
other applicants and discussed his finding with the supervisor, who
informed him that the selection was based on the grievant's
"long-standing federal government seniority." Award at 5. The chief
instructed the supervisor to reconsider the selection, using only
"appropriate, recognized job related factors." Award at 5. On
reconsideration, the supervisor changed his decision and selected
another candidate for the position. The grievant filed a grievance on
the matter which was submitted to arbitration.
The Arbitrator framed the issue as follows:
Did the Agency violate the LMA (labor management agreement) by
its review and reversal of the decision to appoint the grievant to
the position for which he applied? If so, what is the proper
remedy?
The Arbitrator noted that the person selected had extensive training
and experience with high pressure boilers while the grievant did not,
and that the selectee had more experience with boiler operations than
the grievant. The Arbitrator found, therefore, that the reevaluation of
the selection in this case was justified because the supervisor's
decision to select the grievant instead of another candidate was
improperly based on seniority rather than job-related factors as
required by U.S. Army Armor Center (USAAC) Regulation 690-5 which was
incorporated into the parties' agreement.
The Arbitrator agreed with the Union that the chief did not have the
authority to review the final selection for the vacancy under USAAC
Regulation 690-5 or the parties' agreement, which required that merit
promotion actions be in accordance with that regulation, because he was
not a commander, director, or unit chief. The Arbitrator noted that
this determination did not prevent the chief from reviewing promotion
selections in accordance with an appropriate chain of command as
outlined in the regulation. However, the Arbitrator concluded that the
Agency's violation in this manner was "de minimis" and did not entitle
the grievant to the relief he requested.
As his award, the Arbitrator denied the grievance in part and granted
it in part. Specifically, the Arbitrator did not award the grievant the
boiler plant operator position. However, he did order the Activity to
comply with the procedures set forth in USAAC Regulation 690-5 in all
future cases. The Arbitrator stated in particular that "(a)ny action
which is taken to reverse or further review the selection process must
issue from either a commander, director or unit chief." Award at 15.
III. Union Exception
A. Contentions
The Union contends that the Arbitrator failed to properly interpret
the provisions of the controlling regulation, USAAC Regulation 690-5,
specifically Chapter 4, Section 4-2(a)(1) which provides that the
selecting official is entitled to "select or non-select" candidates
referred. The Union contends that the grievant was properly selected
for and is entitled to the position. In its opposition, the Agency
contends that the Union is only disagreeing with the Arbitrator and
attempting to relitigate the case before the Authority.
B. Analysis and Conclusions
We find that the Union's exception simply constitutes disagreement
with the Arbitrator's findings of fact and with his reasoning and
conclusions which led to his finding that the grievant was not properly
selected for the position. This does not provide a basis for finding
the award deficient. See, for example, Social Security Administration,
Albuquerque Data Operations Center and American Federation of Government
Employees, Local 3512, 23 FLRA No. 41 (1986).
IV. Agency Exception
A. Contentions
The Agency contends in its exception that the portion of the
Arbitrator's award which orders the Activity to comply with Regulation
690-5 and which restricts the Activity's authority to designate which
higher level management officials can review and reverse a lower level
supervisor's selection decision interferes with its right to assign work
under section 7106(a)(2)(B) of the Statute and with its right to make
selections under section 7106(a)(2)(C).
B. Analysis and Conclusions
We find that the Agency's exception provides no basis for finding the
award deficient. The Arbitrator has merely instructed the Activity to
follow the procedures which were established in its regulation. He has
made no changes in the regulation and has not interpreted the regulation
in such a manner as to interfere with management's rights as alleged by
the Agency. The Activity has already exercised its right to determine
which management officials will be responsible for reviewing selection
actions and nothing in the award would prevent it from changing that
determination by amending its regulation. The Agency made essentially
the same arguments before the Arbitrator as it is now making before us.
We conclude that it is only attempting to relitigate the matter, which
provides no basis for finding the award deficient. See Panama DOD
Employees Coalition, AFL-CIO/CTRP and HQ 193D Infantry Brigade,
Department of the Army (Panama), 25 FLRA No. 56 (1987).
V. Decision
For the above reasons, the Union's and the Agency's exceptions are
denied.
Issued, Washington, D.C., August 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Union's exception to the award was initially docketed by the
Authority as U.S. Army Armor Center and Fort Knox and American
Federation of Government Employees, Local 2302, Case No. 0-AR-1337. The
Authority informed the parties by letter dated April 30, 1987 that Case
No. 0-AR-1337 was administratively closed and the Union's exception
would be processed, along with the Agency's exception, in Case No.
0-AR-1354.
28 FLRA NO. 94
Dep't of the Air Force, Headquarters 836th Combat Support Group
(TAC), Davis-Monthan Air Force Base, Ariz., and NFFE, Case No.
8-CA-70226 (Decided August 27, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 8-CA-70226
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 836th COMBAT SUPPORT GROUP
(TAC), DAVIS-MONTHAN AIR FORCE BASE, ARIZONA
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated proceeding is before the Authority under section
2429.1(a) of our Regulations based on the parties' stipulation of facts.
The complaint alleges that the Respondent violated section 7116(a)(1),
(5), and (8) of the Federal Service Labor-Management Relations Statute
(the Statute) by refusing to provide the Union with the names and home
addresses of bargaining unit employees. The Respondent filed a brief.
/*/ For the reasons below, we find that the Respondent has committed the
unfair labor practices as alleged.
II. Facts
The Union represents approximately 214 employees in a unit of
non-appropriated fund employees at Davis-Monthan Air Force Base. By
letter dated January 8, 1987, the Union requested the names and home
addresses of all employees in the exclusive unit. By letter of January
13, 1987, the Respondent refused to provide the information to the
Union.
The parties have stipulated that the information is maintained in the
Respondent's non-appropriated fund payroll files and may be obtained
from there. However, payroll records do not provide a listing of
employee names and home addresses identifiable by bargaining unit
status. Only the Respondent's personnel records indicate the bargaining
unit status of non-appropriated fund employees. The parties have also
stipulated that the information does not constitute guidance, counsel,
advice, or training provided for management officials or supervisors
relating to collective bargaining.
III. Positions of the Parties
The Respondent concedes that our decision on remand 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 the Farmers Home Administration Finance
Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec 23,
1986), is dispositive of several issues, but urges us to reverse that
decision. Thus, the Respondent argues that release of the names and
home addresses of employees is contrary to the Privacy Act, and also
that availability of alternate methods of communication with employees
would in some situations be sufficient to preclude the requirement of
release of home addresses.
In addition, the Respondent argues that certain requirements of
section 7114(b)(4) are not met here. Thus, it argues that such records
are not normally maintained in the regular course of business as
required by section 7114(b)(4)(A) because (1) names and home addresses
are in payroll records which do not identify them by bargaining unit
status; and (2) there is no automated record at the Respondent's
facility which contains the name, home address and bargaining unit
status of non-appropriated fund civilian employees. It concedes that a
list could be created manually by going through the records of the
employees. Because such a list would have to be created, the Respondent
also argues that the data is not "reasonably available" as required by
section 7114(b)(4)(B) of the Statute.
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of names and home addresses of bargaining unit employees to 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 of section 7114(b)(4). Our decision in Farmers Home
analyzed the two exceptions to the Privacy Act's bar to disclosure of
personal information pertinent to the release of employees' names and
home addresses: exception (b)(2), concerning the Freedom of Information
Act, and exception (b)(3), relating to "routine use" of information. We
found that both exceptions to the Privacy Act's bar applied so as to
authorize release of the information under the Privacy Act, and the
Respondent has conceded that under Farmers Home, the requirements of the
Privacy Act have been met. We also found in Farmers Home that the
release of the information is generally required without regard to
whether alternative means of communication are available.
Although the Respondent argues that the information sought by the
Union is not normally maintained or reasonably available, the
stipulation clearly shows both that the names and home addresses of
employees are maintained and that identification of employees as to unit
status also is maintained. Consequently, we find that the requirement
of section 7114(b)(4)(A) has been met and that the information is
reasonably available within the meaning of section 7114(b)(4)(B). See,
for example, Department of the Navy, Naval Submarine Base, New London
(New London, Connecticut), 27 FLRA No. 85 (1987). Consistent with our
decision in Farmers Home, we therefore find that the Respondent was
required to furnish the Union with the names and home addresses of the
employees in the bargaining unit. Its refusal to do so violated section
7116(a)(1), (5), and (8) of the Statute.
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 Air Force, Headquarters 836th Combat
Support Group (TAC), Davis-Monthan Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of
Federal Employees, the exclusive representative of its non-appropriated
fund employees, the names and home addresses of all unit employees
located at Davis-Monthan Air Force Base, Arizona.
(b) 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) Furnish the National Federation of Federal Employees, the
exclusive representative of its non-appropriated fund employees, with
the names and home addresses of all unit employees located at
Davis-Monthan Air Force Base, Arizona.
(b) Post at all facilities at the Davis-Monthan Air Force Base,
Arizona, where bargaining unit employees represented by the National
Federation of Federal Employees are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer, Headquarters 836th Combat Support Group (TAC) 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 2424.30 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., August 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The General Counsel's brief was untimely filed and has not been
considered.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the National
Federation of Federal Employees, the exclusive representative of our
non-appropriated fund employees, the names and home addresses of all
bargaining unit employees located at Davis-Monthan Air Force Base,
Arizona.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Federation of Federal Employees, the
exclusive representative of our non-appropriated employees, with the
names and home addresses of all bargaining unit employees located at
Davis-Monthan Air Force Base, Arizona.
. . . (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, of the Federal Labor Relations Authority, whose
address is: 350 South Figueroa Steet, 10th Floor, Los Angeles, CA 90071
and whose telephone number is: (213) 894-3805.
28 FLRA NO. 93
VA Medical Center, Prescott, Ariz., and AFGE, Local 2401, Case No.
8-CA-70232 (Decided August 27, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 8-CA-70232
VETERANS ADMINISTRATION MEDICAL CENTER, PRESCOTT, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2401, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Veterans Administration Medical
Center, Prescott, Arizona (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 American Federation
of Government Employees, Local 2401, AFL-CIO (the Charging Party), with
the names and home addresses of bargaining unit employees located at the
Veterans Administration Medical Center in Prescott, Arizona.
II. Facts
The American Federation of Government Employees, AFL-CIO (the Union)
is the exclusive representative of a nationwide unit of employees of the
Veterans Administration which includes employees at the Veterans
Administration Medical Center, Prescott, Arizona. The Union is the
national parent body of the Charging Party. By letter dated December
31, 1986, the Charging Party requested that the Respondent furnish it
with necessary and relevant information consisting of the names and home
addresses of unit employees at the Prescott, Arizona facility. By
letter dated January 9, 1987, the Respondent refused to furnish the
Charging Party with the information requested.
The parties 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; are necessary to full
and proper discussion, understanding, and negotiation of subjects within
the scope of collective bargaining; and do not constitute guidance,
advice, counsel, or training provided to management officials or
supervisors relating to collective bargaining.
III. Positions of the Parties
A. The Respondent
The Respondent contends that the names and home addresses of the unit
employees are protected from disclosure to the Union by the Privacy Act
exemption of the Freedom of Information Act (FOIA) which prohibits
disclosure of information in government records "which would constitute
a clearly unwarranted invasion of personal privacy," 5 U.S.C. Section
552(b)(6). The Respondent also argues that the Office of Personnel
Management's "routine use" notice and the Privacy Act do not provide for
the release of the unit employees' names and home addresses. The
Respondent cites Federal Personnel Manual (FPM) Supplement 711-1,
Appendix C, which it contends prohibits the release of the names and
home addresses requested in this case. Finally, the Respondent asserts
that the employees' names and home addresses are not "data" under
section 7114(b)(4) of the Statute and are not "necessary" within the
meaning of section 7114(b)(4) in light of the reasonable alternative
means of obtaining the information available to the Charging Party.
B. The General Counsel
The General Counsel argues that the Authority's decision on remand 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), 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 contends that the Respondent's
admitted failure to furnish the employees' names and home addresses
constitutes a clear violation of section 7116(a)(1), (5), and (8) of the
Statute.
IV. Analysis and Conclusion
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 essentially the
same arguments asserted by the agency in Farmers Home. As to the
Respondent's reliance on FPM Supplement 711-1, Appendix C, that Appendix
was deleted, along with the entire supplement, on May 16, 1986.
Essential material from the supplement was updated and incorporated into
FPM Chapter 711. The revised Chapter does not contain a statement
similar to that which the Respondent states was contained in Appendix C
and upon which the Respondent relies. Based on the parties' stipulation
and our decision on remand in Farmers Home, we conclude that the
Respondent's refusal to provide the Charging Party with the names and
home addresses sought in this case violates section 7116(a)(1), (5), and
(8) of the Statute.
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 Veterans Administration Medical Center, Prescott, Arizona,
shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2401, AFL-CIO, the local representative of
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 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 American Federation of Government Employees, Local
2401, AFL-CIO, the local representative of the exclusive representative
of its employees, the names and home addresses of all bargaining unit
employees of the Veterans Administration Medical Center, Prescott,
Arizona.
(b) Post at the Veterans Administration Medical Center, Prescott,
Arizona, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms they
shall be signed by the Director of the Medical Center and shall be
posted in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted, and shall be
maintained for 60 consecutive days thereafter. Reasonable steps shall
be taken to ensure that such Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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., August 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, Local 2401, AFL-CIO, the local
representative of the exclusive representative of certain of our
employees, the names and home addresses of all employees in the
bargaining unit it represents.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce 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,
Local 2401, AFL-CIO, the local representative of the exclusive
representative of a bargaining unit of certain of our employees, the
names and home addresses of all bargaining unit employees of the
Veterans Administration Medical Center at Prescott, Arizona.
. . . (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.
28 FLRA NO. 92
NTEU, Chapter 207, and FDIC, Washington, D.C., Case No. 0-NG-1293
(Decided August 27, 1987)
STATUTE
7103(a)(14)
7106(a)(1)
SUBJECT MATTER INDEX ENTRIES
COMPENSATION SYSTEM
WAGES/SALARY RATES/FRINGE BENEFITS
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
FEDERAL DEPOSIT INSURANCE CORPORATION
GOVERNMENT CORPORATION
FEDERAL DEPOSIT INSURANCE CORPORATION
COMPENSATION
DIGEST NOTES
The Authority considered a single proposal in this negotiability
appeal.
The proposal, ruled negotiable, would provide that all fringe
benefits be made a part of the parties' agreement, and that no new
benefit be created without notice to the union and an opportunity to
bargain. The Authority rejected the agency's arguments that the
proposal was not sufficiently specific to allow the Authority to rule
upon it, and that it did not concern conditions of employment. The
Authority noted that the proposal concerned employee compensation, and
that it covered benefits which the agency provided to employees at its
discretion, and not those specifically provided for by law. (majority
opinion)
Case No. 0-NG-1293
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 207
Union
and
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(B) 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 duty to bargain.
II. Proposal
All benefit systems, e.g. dental care, 401(k), etc. will be
made a part of this contract. No new system will be created
without notice to the union and an opportunity to negotiate.
III. Positions of the Parties
The Agency asserts that it is not possible to determine the aspects
of the Agency's employee benefit programs which the Union intends for
negotiations under this proposal. On this ground, the Agency argues
that the Union's petition should be dismissed because the proposal is
not sufficiently specific to enable the Authority to provide the parties
with a negotiability ruling.
The Agency also argues that the proposal is outside its duty to
bargain because: (1) the benefits to which the proposal relates are
merely incidents of employment rather than conditions of employment
within the meaning of section 7103(a)(14) of the Statute; (2) the
proposal would require negotiations on benefits which are controlled by
Agency regulations for which a compelling need exists within the meaning
of section 7117(a)(2) of the Statute; (3) the negotiations contemplated
by the proposal would conflict with the Agency's right to determine its
budget under section 7106(a)(1) of the Statute; and (4) the proposal
concerns matters such as salary deferral 401(k) plans and life insurance
plans which cannot be negotiated because these matters are controlled by
Federal law.
The Union states that the intent of the proposal is to require the
Agency to provide the Union with advance notice and an opportunity to
negotiate over changes in employee benefits which the Agency initiates
during the term of the parties' agreement. Union petition for review;
Union response at 4. In this regard, it argues that the proposal is
sufficiently specific to enable the Authority to provide the parties
with a negotiability ruling.
The Union asserts that the proposal covers benefits which meet the
definition of conditions of employment in section 7103(a)(14) of the
Statute -- that is, "personnel policies, practices and matters . . .
affecting working conditions" -- and it is not intended to apply to
benefits which are exempted from section 7103(a)(14) because they are
specifically provided for by Federal statute. In the latter regard, the
Union states this proposal concerns benefits which the Agency extends to
employees at its discretion. Union response at 4-5.
Finally, the Union argues that the Agency's other objections to the
proposal are speculative at this time because they do not apply to this
proposal, but to what the Union may propose for negotiations in the
future.
IV. Analysis and Conclusions
A. The meaning of the proposal
The proposal provides that existing Agency benefit systems will be
made a part of the parties' agreement and that no new benefit system
will be created without notice to the Union and an opportunity to
negotiate. As explained by the Union, the proposal would require the
Agency to provide the Union with an opportunity to negotiate over
changes in employee benefits, including money-related benefits, which
the Agency initiates at its discretion in the future.
Further, stressing that the proposal is concerned with the Union's
opportunity to negotiate such matters, the Union states that this
proposal would only require negotiations which are consistent with
applicable laws and regulations. Because it is not inconsistent with
the proposal's wording, we adopt the Union's explanation of the proposal
for the purposes of this decision.
B. The proposal is sufficiently specific
Based on the language of this proposal and its intended meaning, as
discussed above, we find that the proposal is sufficiently specific to
enable us to provide the parties with a negotiability ruling.
C. The proposal is within the duty to bargain
The Authority has expressly held and recently 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. 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). This
proposal is negotiable in this regard because (1) it concerns employee
compensation, (2) it covers those benefits which the Agency provides
unit employees at its discretion, rather than benefits which are
specifically provided by law, and (3) the proposal is not intended to
require negotiations over matters which are inconsistent with applicable
law and regulations.
The Agency's other objections to this proposal, concerning whether
the Union may seek bargaining on non-negotiable matters at a later date,
are misplaced. Like Proposal 11 in American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Local 3804),
implementation of this proposal does not require the Agency to waive its
right to object to future Union proposals on the grounds that the
proposals are inconsistent with applicable laws or regulations, or
require the Agency to negotiate over matters in the future which are
outside its duty to bargain. This proposal would merely establish that
the Agency shall have contractual obligations -- analogous to the
Agency's statutory obligations -- to provide the Union with an
opportunity to negotiate concerning mid-contract changes in conditions
of employment. Local 3804, 21 FLRA No. 104 at n.25.
The Agency will have the opportunity to object to proposals submitted
for negotiation on specific benefit matters, on the above-discussed
grounds, if it plans changes in employee benefits in the future and the
Union requests bargaining. At this time, the Agency's objections amount
to speculation which does not show that this proposal is nonnegotiable.
American Federation of Government Employees, AFL-CIO, International
Council of U.S. Marshals Service Locals and Department of Justice, U.S.
Marshals Service, 11 FLRA 672, 680 n.16 (1983).
V. Order
Upon request or as otherwise agreed to by the parties, the Agency
must bargain concerning the Union's Proposal. /2/
Issued, Washington, D.C., August 27, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
In my view, the Union has failed to set forth sufficient and specific
information to enable the Authority to make a negotiability ruling
concerning the proposal in this case. I believe, therefore, that the
petition for review should be dismissed on the same basis as that
concerning Proposal 1 in Fort Knox Teachers Association and Fort Knox
Dependents Schools, 27 FLRA No. 80 (1987).
In addition, to the extent that the proposal would require
negotiations over money-related fringe benefits, I would find the
proposal to be nonnegotiable for the reasons set forth in my opinions 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); and Federal Deposit Insurance Corporation and National
Treasury Employees Union, 28 FLRA No. 80 (1987).
Issued, Washington, D.C., August 27, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Chairman Calhoun's dissenting opinion immediately follows this
decision and Order.
(2) In finding the proposal to be within the duty to bargain, we make
no judgments as to the merits of the proposal.
28 FLRA NO. 91
AFGE, Nat'l Council of SSA Field Operations Locals, and Social
Security Admin., Case No. 0-AR-1288 (Decided August 27, 1987)
SUBJECT MATTER INDEX ENTRIES
FSLMR STATUTE
7106(a)
DIGEST NOTES
The Authority denied a union's request for clarification of an
Authority decision denying the agency's exceptions to an arbitrator's
award. The Authority refrained explicitly from deciding whether its
rules and regulations provide for the filing of requests for
clarification, and ruled only that such a request was not warranted in
this case.
Case No. 0-AR-1288 (26 FLRA No. 82)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF
SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS LOCALS, AFL-CIO
Union
and
SOCIAL SECURITY ADMINISTRATION
Agency
ORDER DENYING REQUEST FOR CLARIFICATION
This matter is before the Authority on a request filed by the Union
seeking clarification of our decision of April 28, 1987. In that
decision, we denied the Agency's exceptions to the Arbitrator's award
interpreting the parties' Memorandum of Agreement (MOA) concerning the
monitoring of teleservice center (TSC) employee phone calls. We held
that the award was not based on a nonfact or contrary to section 7106(a)
of the Statute as the Agency alleged. In our decision, we noted that
"(i)t is clear from the record that both the Union and the Agency
understood that a sample period could vary in each center and could be
as long or as short as appropriate and that the sample period in effect
at the time of the MOA at the TSCs represented by the Union was the
entire year." 26 FLRA No. 82, slip op. at 3-4 (citations omitted and
emphasis added).
The Union requests clarification of the underlined portion of our
decision. The Union argues that the Authority's intent in using the
word "appropriate" is unclear and that the sample period in effect at
each TSC at the time the MOA was entered into was not the entire year.
The Agency filed an opposition to the Union's request in which it argues
that the Authority's decision is clear on its face and that the request
is an attempt to circumvent the time limits for filing a request for
reconsideration and an attempt to relitigate issues already addressed by
the Authority.
In our decision we specifically concluded, based on the record, that
the Union and the Agency understood that the sample period at each TSC
could vary in each center and could be as long or as short as
appropriate, that is, whatever period is consistent with law, rule or
regulation and the parties' collective bargaining agreement. We also
concluded, contrary to the Union's argument, that the sample period in
effect at the time of the MOA was the entire year.
We hold that the Union's request for clarification must be denied.
Without passing upon whether the Authority's Rules and Regulations
provide for the filing of such requests, we find that clarification is
not warranted in this case.
Accordingly, since our decision is clear, the Union's request for
clarification is denied.
Issued, Washington, D.C., August 27, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 90
SSA, HHS, and AFGE, Local No. 3231 (Mullin, Arbitrator), Case No.
0-AR-1274 (Decided August 25, 1987)
STATUTE
7106(a)(2)(A) & (B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
DIRECT EMPLOYEES
7106(a)(2)(B)
ARB AWARDS, REMEDIES ORDERED BY ARBS
PERFORMANCE APPRAISALS
RATINGS CHANGED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
EXCEEDED HIS AUTHORITY
SUBSTITUTED HIS JUDGMENT FOR THAT OF MANAGEMENT
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
7106(a)(2)(B)
CODE OF FEDERAL REGULATIONS
5 C.F.R. 430.204(K)
PERFORMANCE APPRAISAL SYSTEM
ARBITRATION AWARDS AFFECTING PERFORMANCE APPRAISALS
PERFORMANCE APPRAISAL REVISED
DIGEST NOTES
An employee received a rating of "excellent" as to two "generic job
tasks" in her performance appraisal. She filed a grievance, asserting
that she should have received a rating of "outstanding" on these two
points. The arbitrator determined that the evidence showed that the
grievant's performance in the year in question had remained at the level
at which she had performed in previous years; in previous years, she
had received a rating of "outstanding" for the two tasks. The
arbitrator sustained the grievance, and directed the agency to change
the ratings to "outstanding."
In its exceptions, the agency argued that the award was contrary to
section 7106(a)(2)(A) and (B), in that the arbitrator had substituted
his judgment for that of management in determining the agency's
performance standards. The Authority agreed, and set aside the award.
The Authority noted that the arbitrator had conceded that the supervisor
was not specifically required to examine the grievant's ratings of
previous years; nonetheless, the arbitrator had considered those
ratings in arriving at his decision. In so doing, the Authority
reasoned, the arbitrator had conducted an independent evaluation of the
grievant's performance, in violation of section 7106(a)(2)(A) and (B).
(majority opinion)
Case No. 0-AR-1274
SOCIAL SECURITY ADMINISTRATION
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 3231
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Charles L. Mullin, Jr. filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The grievant had been rated "Excellent" as to Generic Job Tasks #1
and #40 in her performance appraisal. A grievance was filed protesting
that the grievant's ratings for those tasks should have been
"Outstanding." The matter was submitted to arbitration. As his award,
the Arbitrator issued the following:
The Grievant's Supervisor offered persuasive testimony in support
of the Performance Appraisal prepared for the Grievant as her
performance was rated for the particular period being evaluated.
It is accepted that there existed no specific requirement that in
making the evaluation he had to examine ratings of previous years.
At the same time, when his rating was challenged with respect to
Generic Job Tasks #1 and #40, and the Union demonstrated with
persuasive evidence that the Grievant's performance remained at
the same level as in previous years for those tasks, the decrease
in rating of those two Generic Job Tasks from "Outstanding" to
"Excellent" became vulnerable. Management did not offer evidence
to counter that of the Union and, consequently, the balance must
tip in favor of the Grievant. Accordingly, Management is directed
to reflect a change in GJT Items #1 and #40 from "Excellent" to
"Outstanding."
III. Positions of the Parties
A. The Agency's Exceptions
In its exceptions, the Agency contends that the Arbitrator's award is
contrary to the Statute and Government-wide regulations. Specifically,
the Agency contends that the Arbitrator's award is contrary to section
7106(a)(2)(A) and (B) of the Statute because the Arbitrator has
unlawfully substituted his own judgment for that of management as to
what its performance standards should be. The Agency argues that the
Arbitrator did not find that the Agency violated any provision of the
parties' collective bargaining agreement, or of the Agency's appraisal
system, and therefore had no authority to order the grievant's rating
changed. The Agency also contends that the Arbitrator's award is
contrary to Government-wide regulations because, by finding that
management should have considered the grievant's performance of past
years, he has in effect extended the rating period unlawfully beyond the
one-year period prescribed by 5 C.F.R. Section 430.204(K).
B. The Union's Opposition
In its opposition, the Union first argues that the Agency's
exceptions are untimely. The Union also contends that the Agency cannot
file exceptions in this case because the Agency waived its right to file
exceptions to arbitrators' awards in expedited arbitrations.
On the merits of the case, the Union argues that the Arbitrator did
nothing more than apply the Agency's performance standards in a fair and
equitable manner, which was a proper exercise of his authority and one
required by the parties' collective bargaining agreement.
IV. Analysis and Conclusions
Initially, we find that the Agency's exceptions were timely filed and
are properly before us. We have previously addressed and rejected the
Union's argument that under the parties' collective bargaining
agreement, exceptions may not be filed to expedited arbitration awards.
See Health Care Financing Administration and American Federation of
Government Employees, AFL-CIO, Local 1923, 26 FLRA No. 101 (1987).
In Social Security Administration and American Federation of
Government Employees, Local Union 1923, 25 FLRA No. 37 (1987), we
discussed the role of arbitrators in resolving performance appraisal
disputes and the principles that have been established regarding
arbitrators' awards in these disputes. Based on our decisions in SSA
and AFGE Local Union 1923 and the cases cited in that decision, we
conclude that the Arbitrator's award in this case must be set aside.
An arbitrator may sustain a grievance on finding that management has
not applied its own standards to the grievant, or has applied the
standards in violation of law, regulation, or an appropriate provision
of the parties' collective bargaining agreement. The Arbitrator here
did not make any such finding. The Arbitrator found that there was no
specific requirement that the supervisor examine the grievant's ratings
of previous years. Despite this finding, the Arbitrator found that the
ratings in question "became vulnerable" when they were compared with
previous ratings for comparable performance. We conclude that, by
considering factors that the Arbitrator conceded were not required to be
considered by management, he conducted an independent evaluation of the
grievant's performance under the elements and standards established by
management for Generic Job Tasks #1 and #40, and substituted his
judgment for that of management in the exercise of its rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees and
assign work. In view of our conclusion, we need not address the
Agency's other exception to the award.
V. Decision
Accordingly, the award is set aside.
Issued, Washington, D.C., August 25, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee, dissenting:
I disagree with the conclusion of the majority that the Arbitrator
conducted an independent evaluation of the grievant's performance and
improperly substituted his judgment for that of management contrary to
section 7106(a)(2)(A) and (B) of the Statute. In my opinion, the Agency
did not establish that the Arbitrator's award is inconsistent with the
Statute and, therefore, the exception should be denied.
As quoted in the majority decision, the Arbitrator's award is very
brief. Nevertheless, it seems clear on the face of the award that the
Arbitrator based his conclusion concerning the grievant's actual
performance during the rating period on the evaluation prepared by the
grievant's supervisor. The Arbitrator stated: "The Grievant's
Supervisor offered persuasive testimony in support of the Performance
Appraisal . . . for the particular period being evaluated." In my
opinion, the Arbitrator credited the supervisor's appraisal and did not
conduct an independent evaluation of the grievant's actual performance.
The Agency seems to concede this point in its exception. The Agency
does not contend that the Arbitrator conducted an independent appraisal
of the grievant's performance. The essence of the Agency's exception is
that the Arbitrator improperly substituted his judgment for that of
management as to the summary rating for that performance. Exceptions at
2-3.
With regard to the summary rating, while it is clear that the
Arbitrator's judgment concerning the rating to which the grievant was
entitled differed from that of management, I find that the Agency did
not provide sufficient support for its assertion that the Arbitrator's
judgment was improper under the Statute. For one thing, the Agency did
not provide us with the relevant performance standards and/or its
definitions of the summary ratings involved in the dispute to establish
that there was any improper substitution of judgment, and the
information is not otherwise apparent in the record before us.
Moreover, the Union establishes in its opposition to the Agency's
exceptions that the dispute involved a provision in the parties'
collective bargaining agreement that performance standards will be
applied to employees in a fair and equitable manner. Opposition at 3-4.
The Authority has previously held that an arbitrator may order
corrective action for an agency's violation of a requirement in a
collective bargaining agreement that performance standards will be
fairly and equitably applied. Bureau of Prisons, Department of Justice
and American Federation of Government Employees, Local 148, 21 FLRA No.
15 (1986), slip op. at 306. Under the decision in Bureau of Prisons and
other currently applicable Authority precedent, an arbitrator's remedial
authority in such cases is very limited. However, an arbitrator may,
based on standards established by management, management's description
of an employee's actual performance in an evaluation and management's
definition of summary ratings, determine that the employee is entitled
to a higher rating and order the agency to change the rating
accordingly. Id. at 6.
In this case, it seems to me that it is reasonable to infer from the
brief award that the Arbitrator effectively determined that the
grievant's final performance rating of "Excellent" was not arrived at in
a fair and equitable manner as required by the parties' agreement.
Relying on the supervisor's appraisal, the Arbitrator expressly found
that the grievant's performance under the standards involved remained at
the same level as in previous years. Therefore, it appears that the
Arbitrator based his award on management's established standards and its
description of the grievant's actual performance. Further, in the
absence of any evidence to the contrary, it does not appear that the
Arbitrator substituted his judgment for management's definition or
criteria for summary ratings. In my opinion, therefore, the award can
be interpreted as consistent with the Statute under the rationale in
Bureau of Prisons as an appropriate remedy for the Agency's unexplained
failure to accord the grievant the summary rating of "Outstanding",
which management had previously determined was to be accorded to the
level of performance achieved by the grievant. In these circumstances,
I have concluded that the award is not on its face inconsistent with
section 7106(a)(2)(A) and (B) of the Statute and the Agency has not
established otherwise. The Agency's exception therefore should be
denied.
Issued, Washington, D.C., August 25, 1987.
Jean McKee, Member
28 FLRA NO. 89
AFGE, Local 32, and OPM, Case No. 0NG-1047 (Decided August 24, 1987)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A) & (B)
7117(c)
SUBJECT MATTER INDEX ENTRIES
ASSIGN WORK, RESERVED MGM'T RIGHT
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE STANDARDS
DIRECT EMPLOYEES, RESERVED MGM'T RIGHT
PERFORMANCE APPRAISAL SYSTEM
PERFORMANCE STANDARDS
NEGOTIABILITY PROCEDURE
BURDEN OF CREATING A RECORD
WORDS AND PHRASES OF PROPOSAL NOT EXPLAINED ADEQUATELY
PERFORMANCE APPRAISAL SYSTEM
ARBITRAL REVIEW
CONTENT OF PERFORMANCE STANDARDS
AUDITING OR MEASURING WORK PERFORMANCE
METHOD OR MEANS OF AUDITING WORK
TIMELINESS STANDARDS
CRITICAL ELEMENTS
MANAGEMENT'S RIGHT TO ESTABLISH
PERFORMANCE STANDARDS
CONTENT OF PERFORMANCE STANDARDS
ADJUSTMENTS FOR INCREASED DIFFICULTY
CONFLICTS BETWEEN STANDARDS
FAIR AND EQUITABLE STANDARDS
IMPLEMENTATION OF PERFORMANCE STANDARDS
APPLICATION TO INDIVIDUALS
FAIR AND REASONABLE APPLICATION
TIME EXCLUDED FROM APPLICATION OF PERFORMANCE STANDARDS
UNITED STATES CODE
5 U.S.C. 4302
DIGEST NOTES
The Authority considered sixteen proposals dealing with the agency's
performance appraisal system in this negotiability appeal.
Two nonnegotiable proposals would have required that the performance
appraisal system be "fair and consistent." Citing precedent, the
Authority ruled that the proposals were contrary to management's section
7106(a)(2)(A) and (B) rights to direct employees and to assign work.
The Authority reasoned that the wording of the proposals would have
subjected the content as well as the application of the appraisal system
to bargaining. (Proposals 1 and 2)
A nonnegotiable proposal would have specified quality control
procedures. The Authority ruled that the proposal would have restricted
management in changing the type and percentage of work to be reviewed,
and that it therefore violate management's section 7106(a)(2)(A) and (B)
rights to direct employees and to assign work. (proposal 3)
A proposal dealing with the guidance to be given employees regarding
performance standards and the consequences of failing to meet the
standards was found to be partly within and partly outside the duty to
bargain. A requirement that management inform employees of performance
standards and critical elements would obligate management to comply with
the dictates of 5 U.S.C. 4302, and so was within the duty to bargain.
(part (a), proposal 4) A requirement that management refrain from
charging errors within the first thirty days after issuing the guidance
of part (a) was ruled outside the duty to bargain, as an interference
with management's rights to direct employees and to assign work. (part
(b)) A provision which would have required the definition of material
error to be consistent within and among work units was held
nonnegotiable, on grounds that it would have required negotiation over
the content of performance standards. (part (c), proposal 4)
Two nonnegotiable proposals would have regulated management's
sampling of employee performance by spot checks and audits. The
Authority deemed the proposals an interference with management's section
7106(a)(2)(A) and (B) rights to direct employees and to assign work.
(proposals 5 and 6)
Three nonnegotiable proposals would have required fairness and
consistency in performance standards and critical elements. The
Authority ruled that the proposals interfered with management's rights
to direct employees and assign work. (proposals 7, 8, and 9)
A nonnegotiable proposal would have required that assignments of work
to employees be fair and equitable, and that performance standards take
into account the difficulty of the work subject to review. The
Authority held the proposal inconsistent with management's rights to
direct employees and to assign work. (proposal 10)
A nonnegotiable proposal would have provided that employee records be
unaffected by errors not discovered until the review stage. The
Authority ruled the proposal a violation of the agency's section
7106(a)(2)(A) and (B) rights. (proposal 11)
The petition for review as to the twelfth proposal was dismissed, as
the Authority was unable to determine the meaning of key terms used in
the proposal. (proposal 12)
A nonnegotiable proposal would have set out periods of time in which
work would be excluded from appraisal in the circumstances specified.
The Authority determined that the proposal was an interference with
management's rights to direct employees and to assign work. (proposal
13)
A nonnegotiable proposal would have required the agency to adopt a
separate set of performance standards for employees spending less than
forty-five percent of their productive time on regular work. The
Authority deemed the proposal an interference with the agency's section
7106(a)(2)(A) and (B) rights to establish performance standards.
(proposal 14)
A nonnegotiable proposal would have required that performance
standards protect employees from responsibility for "delays and
failures" of the automated support system. The Authority held that the
proposal violated management's section 7106(a)(2)(A) and (B) rights.
(proposal 15)
A nonnegotiable proposal would have excluded from consideration time
on the job before actual work assignments were made. The Authority
ruled that the proposal would have required management to negotiate on
the content of performance standards, in violation of section
7106(a)(2)(A) and (B). (proposal 16)
Case No. 0-NG-1047
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 32, AFL-CIO
Union
and
OFFICE OF PERSONNEL MANAGEMENT
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 proposals dealing with the Agency's performance
appraisal ("review") system. /1/
II. Proposals 1 and 2
Proposal 1
The review system will in all aspects be fair and consistent
within sections and from section to section. No section will be
exempt from review nor will any employee be exempt from review.
(submitted November 22, 1983, as Proposal 2)
Proposal 2
The review system will be fair and consistent. (submitted May
30, 1984, as Proposal 12)
A. Position of the Agency /2/
The Agency contends that the proposals violate management's rights to
assign work and direct employees, under section 7106(a)(2)(A) and (B),
and to determine the methods and means of performing work, under section
7106(b) of the Statute.
B. Analysis and Conclusion
The Authority has consistently found that proposals which
substantively restrict management's ability to identify critical
elements of a position and establish performance standards are
nonnegotiable because they conflict with management's right to assign
work and direct employees under section 7106(b)(2)(A) and (B) of the
Statute. For example, see American Federation of Government Employees,
Locals 3748 and 3365, AFL-CIO and Agricultural Research Service,
Northern States Area and Department of Agriculture, Forest Service,
Black Hills National Forest, 20 FLRA 495 (1985), aff'd sub nom. AFGE
Locals 3748 and 3365 v. FLRA, 797 F.2d 612 (8th Cir. 1986). In that
case, the Authority found a proposal requiring performance standards to
be "fair, objective, job-related, and measurable" to be nonnegotiable
because it was inconsistent with management's rights to assign work and
direct employees. In affirming that decision, the Court of Appeals for
the Eighth Circuit stated at 797 F.2d at 618 as follows:
To allow the Union to negotiate over the meaning of such a broad
and subjective term as "fair," for example, would effectively open
the door to bargaining over any aspect of performance standards.
Contradicting their expressed wish to affect only the application
of performance standards, the Union is attempting to gain a
foothold in territory that is management's exclusively, i.e.,
fashioning the content of performance standards.
The proposals in this case require that the review system be "fair
and consistent" both within sections and from section to section
throughout the Agency. Nothing in the wording of the proposals
indicates that the requirements are limited to the application of the
system rather than the content of the system itself. Proposals
restricted to the application of critical elements and performance
standards have been found negotiable as appropriate arrangements under
section 7106(b)(3). See, for example, American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management, 3 FLRA
784 (1980). As noted, however, this proposal does not concern the
application of the elements and standards; it concerns the content of
the review system. Thus, the decision in Office of Personnel Management
is distinguishable.
Like the proposal in Agriculture Research Service, the proposals here
would effectively determine the content of critical elements and
performance standards. Accordingly, for the reasons stated in
Agriculture Research Service, the proposals are inconsistent with
management's rights to assign work and direct employees. See also
American Federation of Government Employees, AFL-CIO, Local 1603 and
U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60 (1986).
The Agency provides no support for its assertion that the proposals
conflict with section 7106(b)(1) and they do not otherwise appear to
conflict with this section. Therefore, this Agency contention must be
denied.
For the reasons provided above, Proposals 1 and 2 are not within the
duty to bargain because they directly interfere with management's right
to assign work and direct employees under section 7106(a)(2)(A) and (B)
of the Statute.
III. Proposal 3
The methodology of review for quality control purposes is as
follows: Management will choose which work is reviewed and the
percentage of work which is reviewed based on workload
considerations on a weekly basis. Exceptions to this practice may
be made by management in response to the following types of
things: a small workload where all work for the date will be
reviewed; issuance of a Quality Assurance Report or Inspector
General Report that pinpoints a problem area in a section.
Exceptions mean management may change the type and percentage of
work reviewed mid-week. This subsection does not apply to reviews
for criminal investigation purposes. (submitted December 14,
1983, and again on May 30, 1984, as Proposal 3b)
A. Position of the Agency
The Agency contends that the proposal is outside the scope of
bargaining because it interferes with management's rights under section
7106(a)(2)(A) and (B) to assign work, direct employees, and conduct
performance appraisals in accordance with law and Government-wide
regulations. In addition, the Agency asserts that the proposal
interferes with its right to determine its internal security practices,
under section 7106(a)(1).
B. Analysis and Conclusion
Management's rights under section 7106(a)(2)(A) and (B) encompass the
right to determine the quantity, quality and timeliness of employees'
work. See, for example, U.S. Department of Treasury, Internal Revenue
Service, Philadelphia Service Center, and National Treasury Employees
Union and NTEU, Chapter 71, 16 FLRA 749, 767 (1984); American
Federation of Government Employees, AFL-CIO, Local 1923 and Department
of Health and Human Services, Social Security Administration, 12 FLRA 17
(1983); National Treasury Employees Union and Department of the
Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom.
National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir.
1982). Furthermore, these management rights include the right to
determine the aspects of employees' work to be evaluated in preparation
of employee performance appraisals. See Department of the Treasury,
Internal Revenue Service, Midwest Regional Office, Chicago, Illinois, 16
FLRA 141 (1984); American Federation of Government Employees, AFL-CIO,
Local 3004 and Department of the Air Force, Otis Air Force Base,
Massachusetts, 9 FLRA 723, 724 (1982).
Proposal 3 is to the same effect as Proposals 2-6 found nonnegotiable
in National Federation of Federal Employees, Local 1454 and Veterans
Administration, 26 FLRA No. 99 (1987). Those proposals in that case
were concerned with how the agency would sample employees' work to
measure the timeliness of the employees' work performance. As such, we
found that the proposals directly interfered with management's rights to
direct employees and to assign work under section 7106(a)(2)(A) and (B)
of the Statute.
Since Proposal 3 here restricts management in changing the type and
percentage of work reviewed for performance appraisal purposes, it is,
likewise, outside the duty to bargain.
In connection with its contention that the proposal interferes with
its right to determine its internal security practices, the Agency
asserts that the proposal would prevent it from insuring that Government
funds are not illegally expended or diverted due to negligence or fraud.
However, the proposal specifically states that it would not apply to
reviews for criminal investigation purposes. In the absence of evidence
in support of its allegation, we find the Agency's position in this
regard to be without merit.
Based on the foregoing analysis, we conclude that Proposal 3
interferes with the Agency's rights to direct employees and assign work,
under section 7106(a)(2)(A) and (B) of the Statute. Therefore, it is
outside the duty to bargain. The proposal does not violate the Agency's
right to determine its internal security practices, under section
7106(a)(1) of the Statute.
IV. Proposal 4
(a) Employees will be provided clearly written guidance and
reference materials on (1) proper completion of forms; (2)
correct application of laws, regulations and procedures; (3)
accurate information to annuitants; (4) accurate, complete, and
grammatical correspondence; and (5) the degree of failure which
will constitute a material error.
(b) No error charging violation of such guidance will be
charged within the first 30 days of the issuance of guidance;
(c) The definition of material error will be consistent within
and among work units, taking account of actual differences in the
work assignments. (submitted December 14, 1983, and again on May
30, 1984, as Proposal 2)
A. Position of the Agency
The Agency contends that the proposal violates its rights under
section 7106(a)(2)(A) and (B) of the Statute to direct employees, to
assign work, and to establish performance standards.
B. Analysis and Conclusion
The Authority observed in American Federation of Government
Employees, AFL-CIO, Local 3028 and Department of Health and Human
Services, Public Health Service, Alaska Area Native Health Service, 13
FLRA 697, 699 (1984) that proposals which merely obligate management to
comply with the statutory requirement that performance standards and
critical elements be communicated to employees were within the duty to
bargain. See also American Federation of Government Employees, AFL-CIO,
Local 1760 and Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland, 25 FLRA No. 2 (1987) (Proposal
3(a)); American Federation of Government Employees, AFL-CIO, General
Committee of AFGE for SSA Locals and Social Security Administration, 23
FLRA No. 43 (1986) (Proposal 5), petition for enforcement filed sub nom.
FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Mar. 9,
1987). Such proposals are within the duty to bargain in that they do
not interfere with an agency's discretion to identify job elements and
to establish performance standards for employees' positions. Rather
such proposals would, in essence, have the effect of requiring an agency
to comply with the legal requirement in 5 U.S.C. Section 4302 that
performance standards be communicated to employees. We find that part
(a) of this proposal would merely require the Agency to provide its
employees with the guidance and reference materials necessary to perform
their jobs in a satisfactory manner. In our view, the requirement that
performance standards be communicated to employees includes a
requirement to supply employees with information necessary for the
satisfactory achievement of those standards.
The Authority has previously determined that proposals which require
an agency to provide formal training to bargaining unit employees are
inconsistent with management's right to assign work under section
7106(a)(2)(B) of the Statute. For example, see International
Brotherhood of Electrical Workers, AFL-CIO, Local 121 and U.S.
Government Printing Office, Washington, D.C., 8 FLRA 188 (1982)
(Proposal 1); International Association of Fire Fighters, AFL-CIO, CLC,
Local F-116 and Department of the Air Force, Vandenberg Air Force Base,
California, 7 FLRA 752 (1982). However, contrary to the Agency's
contention that part (a) of the proposal interferes with its right to
assign work because it requires management to provide training, we find
that a requirement to provide written guidance and reference materials
necessary for the satisfactory performance of an employee's job is not
an assignment of work to the employee. Therefore, this Agency
contention must be denied.
Part (b) of the proposal prohibits management from charging errors
within the first 30 days of the issuance of the guidance stated in part
(a). This part of Proposal 4 is to the same effect as the portion of
Provision 7 found nonnegotiable in American Federation of Government
Employees, AFL-CIO, Local 1760 and Department of Health and Human
Services, Social Security Administration, 28 FLRA No. 26 (1987) because
it also limited management's ability to evaluate employees for a
specified period of time. Provision 7 in that case prevented management
from evaluating employees for the first 120 days after a reassignment.
In finding Provision 7 nonnegotiable we stated that such a proposal did
not permit management to appraise employees on their ability to master
new job requirements. Thus, we held that such a restriction on
management's evaluation of employee performance directly interfered with
its rights to direct employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute. Consequently, for the reasons
more fully expressed in Department of Health and Human Services, Social
Security Administration, we find that as this part of Proposal 4 also
prevents management from evaluating employees on their ability to master
new job requirements, it directly interferes with management's rights to
direct employees and to assign work under section 7106(a) of the
Statute.
The Agency contends that part (c) of the proposal, which would
require the definition of material error to be consistent within and
among work units, and take into account actual differences in work
assignments, is nonnegotiable because it violates management's right to
appraise performance. We agree. In American Federation of Government
Employees, AFL-CIO, Local 1858 and U.S. Army Ordnance Missile and
Munitions Center and School) (USAOMMCS), Redstone Arsenal, Alabama, 26
FLRA No. 12 (1987) (Provision 1) we stated that the provision would
preclude management's determination that critical elements of similar
positions under a common job description should not be the same because,
in management's judgment, the different circumstances relating to work
performance in those positions warrant weighing job elements differently
and, thus, establishing different critical elements. Part (c) of this
proposal would only permit the definition of material error to vary in
order to account for actual differences in work assignments. It does
not permit management to apply varying definitions of material error, as
it deems appropriate, on the basis of other circumstances, such as the
work performance of employees. Therefore, it interferes with the
Agency's right to determine the content of performance standards.
For the reasons and cases cited in the foregoing analysis, we
conclude that part (a) of Proposal 4 is within the duty to bargain.
Parts (b) and (c), however, would require negotiations over the content
of performance standards, thereby interfering with management's rights
to direct employees and to assign work, under section 7106(a)(2)(A) and
(B). Therefore, parts (b) and (c) of the proposal are outside the
Agency's duty to bargain.
V. Proposals 5 and 6
Proposal 5
Samples, audits or spot checks of all aspects of work will be
spread as evenly as possible throughout the period for employee
performance appraisals in order to be as fair and consistent as
possible. (submitted November 22, 1983, as Proposal 4)
Proposal 6
If management performs audits to determine any aspect of any
element under performance standards, those audits or samples will
be done at least once per month for the entire period of the
appraisal to assure consistency. (submitted December 14, 1983,
and again on May 30, 1984, as Proposal 5)
A. Position of the Agency
The Agency contends that these proposals interfere with its rights to
direct employees and to assign work, under section 7106(a)(2)(A) and (B)
of the Statute.
B. Analysis and Conclusion
These proposals, in essence, would require supervisors who audit or
review any aspects of the work performance of their employees to do so
at least once per month, or, in the case of the first proposal, to
spread such audits "as evenly as possible throughout the period for
employee performance appraisals." As stated above in connection with
Proposal 3, we previously determined in Veterans Administration, 26 FLRA
No. 99 (1987) that proposals which concerned how the agency would sample
employees' work to measure the timeliness of the employees' work
performance directly interfered with management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute. As these proposals are intended to favor a particular sampling
technique to measure an employee's work performance they interfere with
management's rights and, are therefore, outside the duty to bargain.
VI. Proposals 7, 8 and 9
Proposal 7
All decisions regarding errors will be fair and consistent and
employees are encouraged to discuss any error charged to them
without fear of reprisal, with the team leader and section chief.
(submitted November 22, 1983, as proposal 6)
Proposal 8
(a) All decisions regarding material errors will be fair and
consistent and employees can discuss any error charged to them
without fear of reprisal with the team leader. (submitted
December 14, 1983, as Proposal 8a)
Proposal 9
(a) All decisions regarding material errors will be fair and
consistent and employees can discuss any error charged to them
without fear of reprisal with the team leader. If the dispute
cannot be settled to the employee's satisfaction, the employee can
discuss the matter, without fear of reprisal, with the management
official who will make the final decision for the agency.
(submitted May 30, 1984, as Proposal 6)
A. Position of the Agency
The Agency contends that these proposals violate management's rights
to direct employees and to assign work, under section 7106(a)(2)(A) and
(B) of the Statute.
B. Analysis and Conclusion
The Agency argues that the proposals deny management the right to
delegate to individual supervisors discretion as to how to deal with the
commission of errors by employees and dictate to management how it must
organize itself to do business. As stated above in reference to
Proposals 1 and 2, the Authority has consistently held that proposals
which substantively restrict management's ability to identify critical
elements of a position and establish performance standards are
nonnegotiable because they conflict with management's rights to assign
work and direct employees under section 7106(b)(2)(A) and (3) of the
Statute. For example, see Black Hills National Forest, 20 FLRA 495
(1985). In this case, these proposals have the effect of requiring
fairness and consistency in the elements and standards themselves.
Thus, they interfere with management's right to direct employees and
assign work under section 7106(b)(2)(A) and (B) of the Statute.
Accordingly, we conclude that Proposals 7, 8 and 9 are outside the duty
to bargain.
VII. Proposal 10
The assignment of work to employees as it relates to the review
system will at all times be done in a manner that is fair and
consistent. For example, employees will suffer no adverse impact
from work caught in a review backlog. Performance standards and
appraisals will take into consideration the relative difficulty of
the work subject to review. (submitted on November 22, 1983 as
Proposal 11)
A. Position of the Agency
The Agency contends that the proposal interferes with its rights to
direct and to discipline employees and to assign work, under section
7106(a)(2)(A) and (B) of the Statute.
B. Analysis and Conclusion
In American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 19 FLRA 93 (1985) (Proposals 1, 2, and
3), the Authority determined that three proposals, each describing a
specific work situation "outside their (the employees') control" and
seeking to insulate the employees from penalties attributable to such
circumstances, were nonnegotiable. The Authority found that the
proposals there were not limited to the assessment in a grievance
arbitration of the application of standards established by management,
but, rather, would have permitted arbitral review of whether the
performance standards themselves made the appropriate allowances for the
situations described, and, hence, restricted management's authority to
direct employees and assign work.
While the first sentence of the proposal in this case is couched in
terms of a general, nonquantitative requirement of fairness and
consistency, when read in the context of the proposal as a whole, it has
the same effect as the proposals found outside the duty to bargain in
Office of Personnel Management. That is, rather than establishing a
general, nonquantitative requirement by which the application of
management-developed performance standards could be evaluated in a
subsequent grievance proceeding, the proposal would permit arbitral
review of work assignments and would permit arbitrators to substitute
their judgment in these matters for that of the Agency. Moreover, the
third sentence of the proposal, which states that performance standards
themselves will take into consideration the relative difficulty of the
work subject to review, would clearly restrict management's authority to
establish performance standards. Compare, for example, American
Federation of Government Employees, AFL-CIO, Local 2849 and Office of
Personnel Management, New York Regional Office, 7 FLRA 571 (1982)
(Proposal 3) (where the Authority found that, in the circumstances and
context of that case, review by an arbitrator under the proposal would
have determined only whether the application of performance standards,
not the performance standards themselves established by management, made
allowance for factors beyond an employee's control, and therefore held
that the proposal was within the duty to bargain).
Accordingly, for the reasons stated above, and based on Office of
Personnel Management, Proposal 10 is inconsistent with management's
rights to assign work and to direct employees under section
7106(a)(2)(A) and (B) of the Statute, and, therefore, is outside the
duty to bargain. In view of this decision it is unnecessary to address
the Agency's other contention.
VIII. Proposal 11
Employee work records will not be affected by errors which are not
discovered until a review by Review and Control or by Quality
Assurance. (submitted December 14, 1983, and again on May 30,
1984, as Proposal 2)
A. Position of the Agency
The Agency contends that the proposal violates management's right to
assign work and to direct employees through the establishment of
performance standards, pursuant to section 7106(a)(2)(A) and (B) of the
Statute.
B. Analysis and Conclusion
The proposal on its face and according to the Agency's uncontroverted
statement of its effect would absolve employees from the consequences of
their mistakes in certain circumstances. This proposal has the same
effect as Proposals 1-6 found nonnegotiable in American Federation of
Government Employees, Local 1760, AFL-CIO and Department of Health and
Human Services, Social Security Administration, 15 FLRA 909 (1984). The
Authority determined that the proposals there, while purportedly
informing employees of the nature and gravity of errors in the
performance of their work, actually would have had the effect of
defining errors and thus prohibiting management from considering certain
mistakes in evaluating the accuracy of work. Thus, the proposals were
found to interfere with management's establishment of performance
standards in violation of section 7106(a)(2)(A) and (B) of the Statute.
Similarly, this proposal would prohibit management from considering
certain errors, that is, those not discovered until a review by the
Quality Assurance section, in evaluating the accuracy of employees'
work. Therefore, for the reasons stated more fully in Social Security
Administration, at 912-13, the instant proposal is inconsistent with
management's rights, pursuant to section 7106(a)(2)(A) and (B) of the
Statute, and is outside the obligation to bargain. See also American
Federation of Government Employees, Local 1822, AFL-CIO and Veterans
Administration Medical Center, Waco, Texas, 9 FLRA 709, 711 (1982).
IX. Proposal 12
Unless performance standards are established for project work, it
will be considered non-measured work. Time spent on this and
other non-measured work will not be considered as having been
spent on measured work. (submitted December 14, 1983, as Proposal
6 and again on May 30, 1984, as Proposal 5)
A. Position of the Agency
The Agency contends that this proposal is outside the duty to bargain
because it violates its rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute.
B. Analysis and Conclusion
The Agency asserts that this proposal would require negotiations over
the content of employee duties and functions to be included in
performance appraisals and would obligate management to negotiate over
its determinations to direct and assign work to employees.
The Union did not file a response to the Agency's assertions and did
not in any other way explain the meaning of the proposal. The proposal
uses the terms "project work" and "measured work" without defining their
meaning. We are unsure of the meaning of these terms in the context of
this proposal and the Union has not provided any clarification. The
proposal, therefore, does not set forth specific and sufficient
information to enable us to reach a reasoned determination on its
negotiability under law and regulation. Accordingly, the petition for
review of Proposal 12 does not meet the conditions for review prescribed
in section 7117(c) of the Statute and section 2424.1 of our Rules and
Regulations. See Fort Knox Teachers Association and Fort Knox
Dependents Schools, 27 FLRA No. 80 (1987) (Proposal 1). The Union's
petition for review of Proposal 12 is dismissed.
X. Proposal 13
Quantity and quality measures will be a 13 week moving average.
Excluded from the covered time are (1) the first 120 days in the
job; (2) the first 120 days in the division; (3) time during
non-production status; (4) the first two weeks after a
non-production period of two weeks or longer; (5) the first two
weeks in a different section, block or type of work within a
division. During periods of performing non-measured work,
employees will not be credited with work processed or charged for
time expended. (submitted December 14, 1983, as Proposal 10 and
again on May 30, 1984, as Proposal 7)
A. Position of the Agency
The Agency contends that Proposal 13 is outside the duty to bargain
because it interferes with management's rights to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.
B. Analysis and Conclusion
This proposal would expressly limit management's ability to evaluate
employees in a variety of circumstances set out in the proposal. As we
previously stated with respect to Part (b) of Proposal 4 in this case,
under our holding in Department of Health and Human Services, Social
Security Administration, 28 FLRA No. 26 (1987), management's right to
direct employees and to assign work under section 7106(a)(2)(A) and (B)
of the Statute includes the right to evaluate employees on their ability
to master new job requirements. Thus, for the reasons more fully stated
in Department of Health and Human Services, Social Security
Administration, we find that as this proposal also prevents management
from appraising employee performance in the situations listed, it
directly interferes with management's rights to direct employees and to
assign work under section 7106(a)(2)(A) and (B) of the Statute.
XI. Proposal 14
Reviewers will be subject to the regular production system when
performing more than 45% of the regular work. The agency may
adopt a reasonable alternative system for measuring the production
of reviewers in other situations. (submitted December 14, 1983,
as Proposal 14 and again on May 30, 1984, as Proposal 8)
A. Position of the Agency
The Agency contends that the proposal interferes with its rights
under section 7106(a)(2)(A) and (B) to direct employees, assign work,
and appraise employees' performance.
B. Analysis and Conclusion
The proposal requires the Agency to adopt a separate set of
performance standards for employees who spend less than 45 percent of
their productive time on regular work. In National Federation of
Federal Employees, Local 1497 and Headquarters, Lowry Technical Training
Center (ATC), Lowry Air Force Base, Colorado, 6 FLRA 9 (1981), the
Authority found that a proposal which would have required that
performance standards be the same for employees having the same position
description was outside the duty to bargain, pursuant to section
7106(a)(2)(A) and (B) of the Statute. The Authority reasoned that the
proposal would prevent the determination that the content of performance
standards should be different even if the circumstances relating to the
jobs and work performance of such employees would warrant the
application of different standards. The proposal in this case would
have the reverse effect, but its substantive limitation on the Agency's
right to establish performance standards is the same. The proposal
would require the Agency to establish different performance standards
for certain employees even if the Agency determines that the performance
standards should be the same as those employees who spend more than 45
percent of their productive time on regular work. The proposal would
prevent management from exercising its statutory authority to establish
performance standards, and, thus, pursuant to the Agency's right to
direct employees and assign work under section 7106(a)(2)(A) and (B) of
the Statute, is outside the duty to bargain.
XII. Proposal 15
The performance standards will take account of the fact that
employees are not responsible for delays and failures of the
automated support systems. (submitted December 14, 1983, as
Proposal 15 and again on May 30, 1984, as Proposal 10).
A. Position of the Agency
The Agency contends that the proposal interferes with its rights
under section 7106(a)(2)(A) and (B) to direct employees and to assign
work.
B. Analysis and Conclusion
The proposal, by its express terms, describes a specific work
situation, that is, delays and failures of the automated support
systems, and seeks to insulate employees from penalties attributable to
the occurrence of such a circumstance. In American Federation of
Government Employees, Local 32, AFL-CIO and Office of Personnel
Management, 19 FLRA 93 (1985) (Proposals 1, 2, and 3), the Authority
determined that the proposals there, which sought an identical result,
would have provided for arbitral review of the content of performance
standards, and would have permitted arbitrators to substitute their
judgment for that of the agency. The proposals there restricted
management's authority to establish performance standards in violation
of section 7106(a)(2)(A) and (B) of the Statute. Based on Office of
Personnel Management, we conclude that, Proposal 15 in this case is also
outside the duty to bargain.
XIII. Proposal 16
Timeliness of work will begin as of the date the employee is
assigned to perform the work in a timely manner. (submitted
December 14, 1983 as Proposal 16 and again on May 30, 1984 as
Proposal 11)
A. Position of the Agency
The Agency contends that the proposal interferes with its rights
under section 7106(a)(2)(A) and (B) of the Statute to direct employees
and to assign work.
B. Analysis and Conclusion
According to the Agency's uncontroverted statement as to the meaning
and effect of this proposal, it would prevent management from
considering, for performance appraisal reasons, time spent by employees
on the job before actual work assignments are made, and would allow
employees to wait for an assignment rather than seek out their
supervisors to ask for work. The Authority determined that a proposal,
which prohibited an agency from counting time lost due to the
unavailability of needed facilities against employees when evaluating
their work performance, was outside the duty to bargain because it would
have permitted employees to choose to wait for the facilities to become
available when alternative means of performing the work existed.
American Federation of Government Employees, AFL-CIO, Local 1923 and
Department of Health and Human Services, Social Security Administration,
12 FLRA 17 (1983) (Proposal 1). As that proposal would have required
the agency to negotiate the content of performance standards,
specifically the quantity and timeliness of the employees' work product,
it interfered with management's section 7106(a)(2)(A) and (B) rights to
direct employees and to assign work. Similarly with respect to this
proposal we conclude that it would require the Agency to negotiate
concerning the timeliness of the employees' work product, and, hence, on
the content of performance standards. It conflicts with management's
rights under section 7106(a)(2)(A) and (B) of the Statute and is outside
the duty to bargain. See also National Treasury Employees Union and
NTEU, Chapter 72 and Internal Revenue Service, Austin Service Center, 11
FLRA 271 (1983).
XIV. Order
The Agency must negotiate upon request or as otherwise agreed to by
the parties concerning part (a) of Proposal 4. /3/ The petition for
review as it relates to the remaining proposals is dismissed.
Issued, Washington, D.C., August 24, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The 16 proposals in this case are a consolidation of proposals
submitted by the Union in bargaining on November 22, 1983, December 14,
1983, and May 30, 1984, and declared nonnegotiable by the Agency in a
letter dated August 17, 1984. In this case we have grouped the
proposals in a manner which assures their complete consideration and
also eliminates the needless repetition of proposals whose language
remained identical throughout the separate occasions when they were
submitted.
(2) The Union made no substantive arguments on any of the disputed
proposals in its Petition for Review and further, did not file a Reply
Brief in this case.
(3) In deciding that part (a) of Proposal 4 is within the duty to
bargain, we make no judgment as to its merits.
28 FLRA NO. 88
Overseas Education Ass'n and DOD Dependents Schools, Case No.
0-NG-1312 (Decided August 21, 1987)
STATUTE
7103(a)(14)
7105(a)(2)(E)
7106(a)(2)(A) & (B);
7106(b)(1), (2), (3)
7117
SUBJECT MATTER INDEX ENTRIES
ASSIGN WORK, RESERVED MGM'T RIGHT
ADDITIONAL DUTIES
HOURS OF WORK
COMPENSATION SYSTEM
AUTHORITIES GOVERNING PAYMENT
20 U.S.C. 901 et. seq. (DOD OVERSEAS TEACHER PAY)
WAGES/SALARY RATES/FRINGE BENEFITS
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
EDUCATIONAL PERSONNEL (20 U.S.C. 241(a))
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING (7106(b)(2))
IMPACT AND IMPLEMENTATION OF NEW MANUAL
JOINT LABOR-MANAGEMENT COMMITTEE
UNITED STATES CODE
5 U.S.C. 5342(a)(2) (RE PREVAILING-RATE EMPLOYEES)
20 U.S.C. 901-907 (OVERSEAS TEACHERS PAY ACT)
DIGEST NOTES
The Authority considered three proposals in this negotiability
appeal.
A nonnegotiable proposal would have granted employees additional
preparation time for additional work required under a new manual drafted
by the agency. The Authority ruled that the proposal conflicted with
the agency's section 7106(a)(2)(B) right to assign work. The Authority
held that the proposal was not a section 7106(b)(2) appropriate
arrangement, stating that the establishment of job requirements does not
in itself affect employees adversely. (proposal 2)
A negotiable proposal would establish joint labor-management
committees to review and evaluate the impact and implementation of the
agency's new manual. The Authroity interpreted the proposal as
establishing a procedure which might culminate in proposals concerning
the manual or its impact and implementation. The Authority determined
that the proposal would not require management to negotiate over
proposals dealing with the content of the manual, and concluded that the
proposal did not interfere with any of management's 7106 rights.
(proposal3)
A negotiable proposal would grant additional compensation to unit
employees when their duties extend beyond the normal duty day. Under
the Overseas Teachers Pay Act (20 U.S.C. 901-907), said the Authority,
the agency has broad discretion regarding the compensation of its
teachers; the exercise of that discretion, the Authority ruled, is
within the duty to bargain. The Authority rejected the agency's
argument concerning prevailing-rate employees as inapplicable.
(majority opinion, proposal 1)
Case No. 0-NG-1312
OVERSEAS EDUCATION
ASSOCIATION
Union
and
U.S. DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 three Union proposals. The proposals were submitted
after the Agency forwarded to the Union for review the final draft copy
of DS Manual 2090.3, Procedures Manual for Compensatory Education (the
Manual). The Manual states that compensatory education is designed to
provide "a program of basic skills instruction which addresses the needs
of students of average or above average ability, achieving significantly
below grade level."
II. Procedural Issues
As threshold matters, in addition to claiming that the Union's
proposals are nonnegotiable because they are inconsistent with
applicable law, rule or regulation, the Agency contends that it has no
duty to bargain concerning various proposals or portions thereof in this
case because (1) they are governed by provisions in the parties'
Agreement; (2) no change has been made in the areas covered by the
proposals sufficient to give rise to a duty to bargain; or (3) they
have been rendered moot by implementation of the Manual. Since these
claims do not raise issues as to whether the proposals are inconsistent
with applicable law, rule or regulation, they do not meet the conditions
for review of negotiability issues under section 2424.1 of our
Regulations. American Federation of Government Employees, Local 12,
AFL-CIO and Department of Labor, 26 FLRA No. 89 (1987).
Where the conditions for review of negotiability issues have been
met, however, 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, an alleged
conflict between a proposal and a controlling agreement. See American
Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627,
631 (D.C. Cir. 1983). To the extent that there are additional issues
regarding the duty to bargain in the specific circumstances of 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 claimed existence of threshold duty to bargain
questions does not preclude us from determining the negotiability of the
proposals in this case since they are otherwise properly before us.
III. Proposal 1
The FLRA Members have expressed different opinions concerning
Proposal 1. The decision and order on Proposal 1 and Chairman Calhoun's
dissenting opinion immediately follow this decision.
IV. Proposal 2
Participating unit employees shall be authorized additional
preparation time for additional work required by the duties
prescribed in the Compensatory Education Manual.
A. Positions of the Parties
The Agency contends that the proposal interferes with its rights
under section 7106(a)(2)(A) and (B) of the Statute to direct employees
and to assign work. It claims that Proposal 2 is not materially
different from a group of proposals which the Authority held
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 Union characterizes the proposal, an alternative to Proposal 1,
as an appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute for employees who will have new duties added to their
jobs as a result of new procedures in the Manual. It asserts that the
Manual effectively eliminates certain "School-Based Planning Committees"
and thereby results in additional duties for compensatory education
teachers.
B. Analysis and Conclusion
1. The Proposal conflicts with Management's Right to
Assign Work.
Proposal 2 requires the Agency to allocate time during the regular
workday for employees to prepare for additional work assertedly
prescribed by the Manual. It is to the same effect as the group of
proposals which were held nonnegotiable in NFFE Local 1236 and Defense
Language Institute. In that case, the Authority held that the proposals
directly interfered with management's right to assign work "by
allocating a specific amount of time for the accomplishment of a
specific duty." Proposal 2, by requiring the Agency to authorize
additional time to be devoted to preparation, also seeks to allocate a
specific amount of time to accomplish certain work. Thus, based on the
reasons and case cited in NFFE Local 1263 and Defense Language
Institute, it is inconsistent with management's right to assign work
under section 7106(a)(2)(B) of the Statute. See also Fort Knox Teachers
Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (9186)
(Proposal 2).
2. The Proposal Does Not Conflict with Management's
Right to Direct Employees
The Statute does not define the right to direct employees. In the
absence of any indication that the phrase as used in the Statute has a
meaning other than its ordinary meaning, the Authority determined that
the right to direct employees means "to supervise and guide (employees)
in the performance of their duties on the job." National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d
553 (D.C. Cir. 1982). The right to direct employees is exercised
through supervising employees and determining the quantity, quality and
timeliness of work production and establishing priorities for its
accomplishment. For a general discussion of this matter See Social
Security Administration, Northeastern Program Service Center and
American Federation of Government Employees, Local 1760, AFL-CIO, 18
FLRA 437, 439-40 (1985) (deciding methods to audit employees work);
Tidewater Virginia Federal Employees Metal Trades Council and Navy
Public Works Center, Norfolk, Virginia, 15 FLRA 343, 344 (1984)
(requiring employees to account for their conduct and work performance);
NTEU and Bureau of the Public Debt, 3 FLRA at 776 (establishing
critical elements and performance standards).
In our view, the proposal on its face does not concern directing
employees within the meaning of section 7106(a)(2)(A). It does not
involve supervising employees or determining the quantity, quality and
timeliness of work production or establishing priorities for its
accomplishment. Moreover, the Agency makes no showing in the record as
to how this proposal relates to directing employees, and a relationship
is not otherwise apparent to us. The cases cited by the Agency in
support of its contention did not involve the right to direct employees,
only the right to assign work. Hence, we find that the proposal does
not interfere with management's right to direct employees.
3. The Proposal is Not an Appropriate Arrangement
We turn now to the question of whether Proposal 2, in spite of the
fact that it interferes with management's right under section
7106(a)(2)(B), is nevertheless negotiable as an appropriate arrangement
for employees adversely affected by the exercise of that right within
the meaning of section 7106(b) (3). The threshold question is whether
the proposal is an "arrangement" for adversely affected employees. See
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA No. 4 (1986).
The Union states that the purpose of the proposal is to mitigate the
adverse effects on certain unit employees of being required to perform
additional duties prescribed in the Manual. Assuming for the purpose of
this decision that the Manual prescribes additional job requirements as
the Union claims, in our view it follows that Proposal 2 concerns the
effects of management's establishing job requirements. The
establishment of job requirements, however, does not by itself adversely
affect employees. See 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), (employees are not adversely
affected because the requirements of their jobs are changed -- adverse
effect comes when action is taken against them based upon application of
those job requirements). Accord Alford v. Department of Health,
Education and Welfare, 1 MSPB 305 (1980) (employees may not appeal from
the Agency's development of performance standards for their positions
but only from actions taken against them on the basis of those
standards). Therefore Proposal 2 does not concern an "arrangement" for
adversely affected employees.
Consequently, we need not reach the question whether the proposal is
an "appropriate" arrangement, since it does not qualify for
consideration under section 7106(b)(3). See Patent Office Professional
Association and Patent and Trademark Office, Department of Commerce, 25
FLRA No. 29 (1987) (Proposal 3 K), appeal filed sub nom. Patent Office
Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26,
1987).
4. Conclusion
The proposal is outside the duty to bargain.
V. Union Proposal 3
DODDS shall establish a review committee in each region where
unit employees are employed for the purpose of reviewing and
evaluating the procedural requirements incorporated in the
Compensatory Education Manual. The first review period will run
for three months prior to implementation of the manual. Each
review committee will report findings to the OEA and DODDS in
Washington for the purpose of finalizing negotiations. After
implementation of the manual the review committees will continue
to monitor and evaluate the manual procedural requirements for one
year. After the one year the committees will report findings to
the OEA and DODDS in Washington for the purpose of determining
whether changes are necessary in the manual. If changes are
necessary then the parties shall renegotiate on the manual.
The regional review committee shall consist of at least four
members equally divided between the OEA and DODDS. Although each
party is free to choose members to the committees it is
recommended that some of the participants be compensatory
education teachers.
A. Positions of the Parties
The Agency asserts that Proposal 3 has the effect of requiring that
the planning of the Compensatory Education Program be accomplished by
joint labor-management committees. In this connection it argues that
the proposal impermissibly interjects the Union into the deliberative
process leading to the exercise of management's right under section
7106. In support it cites Authority decisions in Fort Knox Teachers
Association and Fort Knox Dependent Schools, 22 FLRA No. 88 ( 1986)
(Proposal 3) and Panama Canal Federation of Teachers, Local 29 and
Department of Defense Dependent Schools, Panama Region, 19 FLRA 814
(1985) (Proposals 1, 6, 8 and 10). The Agency further agrues that the
proposal concerns the methods and means of performing work under section
7106(b)(1).
The Union characterizes the proposal as a procedure, within the
meaning of section 7106(b)(2), to be followed by management in the
exercise of its reserved rights under the Statute. The Union states
that the proposal constitutes "ground rules" or "a procedure" for
negotiations over the impact and implementation of the Manual.
According to the Union, the joint management-union committees would
review and evaluate the actual impact and implementation problems
arising after the implementation of the Manual and thereafter make
recommendations to or advise the parties' respective bargaining teams of
the committtees' findings. The Union does not intend the proposal to
require the Agency to accept the recommendations of the committees but
intends it to require the Agency to bargain over those recommendations
to the extent that they are negotiable. Response at 7-10.
B. Analysis and Conclusion
We conclude that the proposal is within the duty to bargain. It
would establish a procedure for review and evaluation of the impact and
implementation of the Manual, which might give rise to future bargaining
proposals concerning the Manual.
More particularly, the proposal would require establishing joint
labor-management committees to review and evaluate the impact and
implementation of the Manual. These committees would then advise the
parties of their findings and make recommendations. Either party could
subsequently propose negotiations, as it considered necessary, to bring
about changes in the Manual or its impact and implementation. Any
proposal submitted by the Union in such negotiations would, of course,
be subject to the section 7117 procedures if the Agency alleged it to be
outside the duty to bargain because of inconsistency with applicable
laws and regulations.
In significant part this is a proposal to bargain in the future, to
the extent consistent with applicable laws and regulations, over
whatever matters related to the Manual the parties may decide, based on
the advice and recommendations of the joint committees. The proposal
does not itself either mandate changes in the Manual or its impact and
implementation, or require negotiation over any particular changes. It
only would establish a procedure which might, depending on the results
of the committees' reviews and the parties' reactions to them, culminate
in proposals for negotiations. Based on the foregoing, we find that the
record does not establish that the proposal interferes with any Agency
rights under section 7106. If agreed upon, this proposal in the future
could give rise to bargaining proposals that are nonnegotiable because,
for example, they would impermissibly interject the Union into
management's deliberative process leading to the exercise of its
statutory rights. This proposal, however, does not purport to obligate
the Agency to bargain regarding such new proposals. Rather, the Union
explicitly states its intention that the Agency "will only be obligated
to negotiate over recommendations the committees make if those
recommendations are themselves negotiable." Union Response at 9. In
addition while the proposal itself refers only to "renegotiat(ion) on
the manual," the Union states that the proposal "merely establishes a
procedure for further impact and implementation negotiations(.)" Union
Response at 8. Consistent with this statement of intent, we do not
interpret the proposal as requiring negotiations on proposals relating
to the content or substance of the manual.
In a somewhat analogous situation, a union proposed to establish a
joint labor-management committee to develop the agency's training
program. The Authority held that the proposal was a negotiable
procedure under section 7106(b)(2) of the Statute. American Federation
of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the
Army Adjutant General, Publication Center, St. Louis, Missouri, 14 FLRA
438 (1984). The Authority found that the committee would serve as a
forum through which the union could express its views regarding the
agency's training programs but would not require agency to negotiate
concerning the content of those programs, which would have conflicted
with management's right to assign work.
Similarly, in American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Chicago Region,
Illinois, 7 FLRA 217, 229-30 (1981) (proposal 6), the Authority held
that a proposal to create a joint labor-management committee to
recommend changes in the agency performance appraisal system concerned a
negotiable procedure. Under that procedure as under the present
proposal, the agency retained its discretion to accept or reject any of
the committee's recommendations.
The decisions the Agency cites in support of its position are
inapposite. The proposals in those cases provided for union
participation on management committees involved in the exercise of a
management right and in matters which did not concern conditions of
employment, rather than for union involvement in a joint
management-union forum to review and evaluate the impact and
implementation of the exercise of section 7106 rights and formulate
recommendations for bargaining over those matters.
In Department of Defense Dependents Schools, Panama Region, Proposals
1 and 8 and in Fort Knox Dependent Schools, Proposal 3 sought to require
bargaining over the composition of committees established by management
to study and make recommendations concerning, among other matters, the
selection of curriculum, text books and teaching material. In those
cases, the Authority found that management had established the
committees to undertake deliberations leading to the exercise of its
rights reserved under section 7106(b)(1) of the Statute. The Authority,
therefore, concluded that while management could elect to bargain over
those proposals it could not be required to do so since the committees
concerned an integral part of the agency's substantive decision-making
process for the exercise of the agency's right under section 7106(b)(1).
Additionally, in Department of Defense Dependents Schools, Panama
Region, Proposal 6 required that the Agency Cooperative Work Experience
Programs be accomplished by certain specified individuals, some of whom
would be unit employees and others non-employees. Thus, the Authority
concluded that to the extent that it concerned unit employees the
proposal was inconsistent with management's right to assign work under
section 7106(a)(2)(A); to the extent that it related to non-employees,
the proposal did not concern conditions of employement of unit employees
within the meaning of section 7103(a)(14) of the Statute.
Similarly, in Department of Defense Dependents Schools, Panama
Region, Proposal 10 required a Union representative Council which, among
other things, the agency had empowered to act with respect to matters
concerned with the school budget and curriculum. In that case the
Authority held that the proposal required union participation in the
deliberative process leading to the exercise of management's right to
determine its budget under section 7106(a)(1).
In contrast, this proposal does not itself concern substantive
matters. It does not in any respect interfere with management's
statutorily reserved rights. Therefore, we conclude that the proposal
is within the duty to bargain.
VI. Order
The Agency must upon request or as otherwise agreed to by the parties
bargain concerning Proposal 3. /1/ The Union's petition for review as
to Proposal 2 is dismissed.
Issued, Washington, D.C., August 21, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 1
Proposal 1
Participating unit employees shall receive additional
compensation for all time required to perform duties, related to
the Compensatory Education, beyond the normal duty day.
A. Positions of the Parties
The Agency argues that the employees involved are not covered by
section 9(b) of the Prevailing Rate Act of 1972 and section 704 of the
Civil Service Reform Act. It claims that, in these circumstances,
Congress did not intend Federal agencies to negotiate over wages, and
Proposal 1 is therefore inconsistent with law. The Union claims that
the proposal is negotiable under the Defense Department Overseas
Teachers Pay and Personnel Practices Act (Overseas Teachers Pay Act), 20
U.S.C. Sections 901-907.
B. Analysis and Conclusion
1. Effect of 20 U.S.C. Sections 901-907 on the Negotiability of the
Proposals
The proposal would require negotiating additional compensation for
certain employees when their duties concerned with compensatory
education extend beyond the normal duty day.
The Overseas Teachers Pay Act provides, in pertinent part, as
follows:
Section 902. Regulations of Secretary of Defense
(a) . . . the Secretary of Defense shall prescribe and issue
regulations to carry out the purposes of this chapter. Such
regulations shall govern --
. . . .
(3) the entitlement of teachers to compensation;
(4) the payment of compensation to teachers;
. . . .
(10) such other matters as may be relevant and appropriate to
the purposes of this chapter.
Section 903. Administration -- Employement and Salary
Practices
(a) The Secretary of each military department in the Department
of Defense shall conduct the employment and salary practices
applicable to teachers and teaching positions in his military
department in accordance with this chapter, other applicable law,
and the regulations prescribed and issued by the Secretary of
Defense under section 902 of this title.
. . . .
(d) the Secretary of each military department may prescribe and
issue such regulations as he deems appropriate to carry out his
functions under this chapter.
The quoted provisions of Overseas Teachers Pay Act vest broad
discretion in the Agency concerning the compensation of teachers. It is
well established that, to the extent that an Agency has discretion with
respect to a matter affecting the working conditions of its employees
and that discretion is not intended to be sole and exclusive, the matter
is within the duty to bargain. See, for example, National Treasury
Employees Union, Chapter 6 and Internal Revenue Service, New Orleans
District, 3 FLRA 748, 759-60 (1980). Insofar as matters relating to the
compensation of employees are not specifically provided for by Federal
statute but, instead, are within the discretion of an agency, they are
conditions of employment. As to these matters, the Authority has
recently reaffirmed that nothing in the Statute, or its legislative
history, bars negotiation of proposals concerning them 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. 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).
Here, we find that Proposal 1, regarding additional compensation for
duties required to be performed beyond the normal duty day, concerns a
matter within the Agency's administrative discretion under the Overseas
Teachers Pay Act and it has not been demonstrated that such discretion
was intended to be sole and exclusive. The exercise of that discretion
is subject to bargaining. See, for example, American Federation of
Government Employees, AFL-CIO, Local 3525 and United States Department
of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal
1).
2. The Provisions of Law Applicable to Prevailing Rate
Employees Cited by the Agency are Inapposite
As we discussed in more detail in National Maritime Union of America,
AFL-CIO and Department of the Navy Military Sealift Command, 25 FLRA No.
8 (1987) appeal filed sub nom. Department of the Navy, Military Sealift
Command v. FLRA, 87-3179 (3rd Cir. March 12, 1987). pay of prevailing
rate employees is governed by the terms of the Prevailing Rate Act of
1972 (the Act). Section 9(b) of the Act is a savings clause, which
allowed prevailing rate employees who had negotiated over, among other
things, wages prior to the Act to continue to do so. Section 704 of the
Civil Service Reform Act preserved the scope of bargaining for employees
covered by this savings clause for negotiations occurring under the
Statute. See Columbia Power Trades Council and United States Department
of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986).
We do not rely on section 9(b) or section 704 in ruling on this
proposal because the Agency does not claim nor does the record otherwise
establish that the employees who are the subject of the proposal are
prevailing rate employees as defined in the Act. 5 U.S.C. Section
5342(a)(2). Consequently, the pay of these employees is not governed by
the Act. It follows that section 9(b) and section 704 which preserved
bargaining rights on pay matters for certain employees who would
otherwise have their pay determined by that pay system have no relevance
to the negotiability of proposals on pay matters relating to these
employees. National Maritime Union of America and Military Sea Lift
Command, 25 FLRA No. 8 (1987), appeal filed sub nom. Department of the
Navy Military Sealift Command v. FLRA, No. 87-3179 (3rd Cir. March 16,
1987).
3. Conclusion
The proposal is within the duty to bargain.
C. Order
The Agency must upon request or as otherwise agreed to by the parties
bargain concerning Proposal 1. /2/
Issued, Washington, D.C., August 21, 1987
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
In my opinion in Overseas Education Association, Inc. and Department
of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987),
Petition for review filed sub nom. Overseas Education Association v.
FLRA, No. 87-1279 (D.C. Cir. June 25, 1987), I stated that in my view
the discretion of the Secretary of Defense under 20 U.S.C. Section 902
to determine the compensation of overseas teachers is exclusive and not
subject to negotiations absent a clear expression of Congressional
intent to the contrary. As in that case, I find no such expression
here. As a result, I would find that Proposal 1 is not negotiable.
Issured, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) In finding this proposal within the duty to bargain, we make no
judgment as to its merits.
(2) In finding this proposal within the duty to bargain, we make no
judgment as to its merits.
28 FLRA NO. 87
Dep't of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii,
and Hawaii Federal Employees Metal Trades Council, Case No. 98-CA-70294
(Decided August 21, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 98-CA-70294
DEPARTMENT OF THE NAVY
PEARL HARBOR NAVAL SHIPYARD
PEARL HARBOR, HAWAII
Respondent
and
HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to provide the
Hawaii Federal Employees Metal Trades Council, AFL-CIO (the Charging
Party), with the names and home addresses of bargaining unit employees
located at the Pearl Harbor Naval Shipyard in Pearl Harbor, Hawaii.
II. Facts
The Hawaii Federal Employees Metal Trades Council, AFL-CIO is the
exclusive representative in Unit One composed of all nonsupervisory
graded and ungraded employees of the Pearl Harbor Naval Shipyard and
Unit Two, composed of all graded (Classification Act) employees at the
Pearl Harbor Naval Shipyard. By a series of letters, the Charging Party
requested that the Respondent furnish it with the names and home
addresses of all Unit One and Unit Two employees. By letter dated
Decmeber 15, 1986, the Respondent refused to furnish the information
requested. The parties 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, cousel, or training provided to management officials
or supervisors relating to collective bargaining.
III. Position of the Parties
The Respondent contends that the routine disclosure of the names and
home addresses of employees requested by the Charging Party is
prohibited by the Privacy Act, 5 U.S.C. 552a and that the Charging
Party's request must be subjected to a balancing test. The Respondent
contends that the balancing test would not be met because the General
Counsel has provided no evidence that (1) there are no alternative means
of communicating with employees, (2) the Charging Party does not
currently communicate effectively with unit employees, or (3) the
Charging Party requires names and home addresses for discussion and
negotiation of subjects within the scope of collective bargaining. The
Respondent also contends that there is no guarantee that the information
requested by the Charging Party will not be misused. The Respondent
maintains that the Authority erred in its decision on remand 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 the Farmers Home Administration Finance
Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23,
1986). The Respondent argues that the Authority completely ignored the
Federal Personnel Manual, Chapter 294, Appendix C, which assertedly
provides that labor organizations should not be furnished with
employees' home addresses since such disclosure would be an unwarranted
intrusion into an employee's personal privacy.
The General Counsel argues that the Authority's decision on remand in
Farmers Home, 23 FLRA No. 101, 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 contends
that the Respondent's admitted failure to furnish the employees' names
and home addresses constitutes a clear violation of section 7116(a)(1),
(5), and (8) of the Statute.
IV. Analysis and Conclusion
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. Finally, we reject the Respondent's
assertion concerning the Federal Personnel Manual, Chapter 294, Appendix
C, for the reasons stated in Department of the Navy, Naval Air Station,
Moffett Field, California, 28 FLRA No. 10 (1987). As we noted in that
decision, Appendix C was deleted on March 12, 1985 when Chapter 294 was
revised, and the revised Chapter contains no statement similar to that
which was contained in Appendix C.
Based on the parties' stipulation and our decision on remand in
Farmers Home, we find that the Respondent was required to furnish the
Charging Party with the names and home addresses of employees in the
bargaining units. Its refusal to do so violated section 7116(a)(1),
(5), and (8) of the Statute.
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, Pearl Harbor Naval Shipyard, 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 its
employees, the names and home addresses of all employees in the
bargaining units 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) Upon request of the Hawaii Federal Employees Metal Trades
Council, AFL-CIO, the exclusive representative of its employees, furnish
it with the names and home addresses of all bargaining unit employees in
Unit One and Unit Two of the Pearl Harbor Naval Shipyard at Pearl
Harbor, Hawaii.
(b) Post at the Pearl Harbor Naval Shipyard copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Commander of the Pearl Harbor Naval Shipyard 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 IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order as to what steps have been taken to comply.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier, III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the Hawaii
Federal Employees Metal Trades Council, AFL-CIO, the exclusive
representative of certain of our employees, the names and addresses of
all employees in the bargaining units 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, upon request of the Hawaii Federal Employees Metal Trades
Council, AFL-CIO, the exclusive representative of bargaining units of
certain of our employees, furnish it with names and home addresses of
all bargaining unit employees of the Pearl Harbor Naval Shipyard, Pearl
Harbor, Hawaii.
. . . (Activity)
Dated: . . . By: . . . (Signature) . . . (Title)
This Notice must remain posted for 60 days consecutive days from the
date 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 IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, California 94103, and
whose telephone number is: (415) 995-5000.
28 FLRA NO. 86
AFGE, Local 1857, and John M. Neill, Case No. 9-CO-60014 (Decided
August 21, 1987)
STATUTE
7114(a)(1)
7116(b)(1) & (8)
7118
SUBJECT MATTER INDEX ENTRIES
UNION ULP (ALLEGED) (7116(b)(1))
SETTLEMENT AGREEMENT
UNION ULP (ALLEGED) (7116(b)(8))
7114(a)(1)
SETTLEMENT AGREEMENT
GRIEVANCE SETTLEMENT AGREEMENTS
UNFAIR LABOR PRACTICES, REMEDIES FOR UNION VIOLATIONS
AGREEMENTS
HONOR SETTLEMENT AGREEMENT
REPRESENTATION
REPRESENT ALL UNIT EMPLOYEES FAIRLY
DIGEST NOTES
In this unfair labor practice case, the Authority, having found no
prejudicial error, adopted the findings and conclusions of the
administrative law judge, and modified his recommended order.
The judge ruled that the union had breached its section 7114(a)(1)
duty of fair representation, in violation of section 7116(b)(1) and (8),
when it had deleted the name of the charging party, an individual
employee, from a list of employees eligible for back pay under a
settlement agreement. Applying the standard set out in Authority
precedent for determining breaches of the duty of fair representation,
the judge noted that the union had relied on the reports of several
employees who "bore animosity" toward the charging party in removing his
name from the list. The judge determined that the union had been aware
of the other workers' feelings about the employee, and that therefore
the union had been obligated to obtain the employee's side of the story
before deleting his name from the list. The judge concluded that the
union had deliberately and unjustifiably treated the charging party
differently from other unit employees.
Case No. 9-CO-60014
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1857, AFL-CIO
Repondent
and
JOHN M. NEILL, An Individual
Charging Party
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in the
above entitled proceeding, finding that the Respondent, as alleged in
the complaint, violated its statutory duty of fair representation under
section 7114(a)(1) of the Federal Service Labor-Management Relations
Statute (the Statute) by deleting an employee's name from a list of
employees who, pursuant to a settlement agreement, were eligible to
receive backpay. The Judge recommended that the Respondent be ordered
to cease and desist from those practices and take certain affirmative
action. The Respondent filed exceptions to the Judge's decision and the
General Cousel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed and 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 as modified. /*/
ORDER
Pursuant to section 2423.29 of the Authority's Rule and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, we order that the American Federation of Government Employees,
Local 1857, AFL-CIO shall:
1. Cease and desist from:
(a) Breaching its statutory duty to fairly represent all of the
employees in the bargaining unit by discriminatorily excluding John M.
Neill, a unit employee in the Meat Department of the Commissary at
McClellan Air Force Base, from a grievance settlement it negotiated with
McClellan Air Force Base.
(b) In any like or related manner, interfering with, restraining, or
coercing any employee in the exercise of the 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) Fairly represent all employees in its unit of exclusive
recognition at McClellan Air Force Base, as required by section
7114(a)(1) of the Statute.
(b) Request McClellan Air Force Base to include John M. Neill in the
May 23, 1986 list of eligble employees for purposes of computing and
paying to him the overtime that he is entitled to. Failing in such
endeavor, Local 1857, AFGE, AFL-CIO, shall make John M. Neill whole for
the backpay compensation to which he was entitled under the terms of the
May 1986 grievance settlement between American Federation of Government
Employees, Local 1857, AFL-CIO and McClellan Air Force Base.
(c) Post at its business offices and its normal meeting places,
including all places where notices to members and to employees of
McClellan Air Force Base are customarily posted, 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
President of the American Federation of Government Employees, Local
1857, AFL-CIO, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including bulletin boards and
all other places where Union notices to members and unit 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) Submit appropriate signed copies of such Notice to the Commander
of McClellan Air Force Base, for posting in conspicuous places where
unit employees are located, where they should be maintained for a period
of 60 consecutive days from the date of the posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE PURPOSES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT breach our statutory duty to fairly represent all of the
employees in the bargaining unit by discriminatorily excluding John M.
Neill, a unit employee in the Meat Department of the Commissary at
McClellan Air Force Base, from a grievance settlement we negotiated with
McClellan Air Force Base.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of the rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL fairly represent all employees in our unit of exclusive
recognition at McClellan Air Force Base, as required by section
7114(a)(1) of the Statute.
WE WILL request McClellan Air Force Base to include John M. Neill in
the May 23, 1986 list of eligible employees for purposes of computing
and paying to him the overtime that he is entitled to. Failing in such
endeavor, we shall make John M. Neill whole for the backpay compensation
to which he was entitled under the terms of the May 1986 grievance
settlement between American Federation of Government Employees, Local
1857, AFL-CIO and McClellan Air Force Base.
. . . (Labor Organization)
Dated: . . . By: . . . (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IX,
whose address is: 901 Market Street, Suite 220, San Francisco, CA
94103, and whose telephone number is: (415) 995-5000.
Case No.: 9-CO-60014
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1857, AFL-CIO
Respondent
and
JOHN M. NEILL, An Individual
Charging Party
Stefanie Arthur, Esquire
For the General Counsel
Bernard L. Allamano, Esquire
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor Management
Relations Statute, Chapter 71 of Title 5 of the U.S.C. Code, 5 U.S.C.
Section 7101, et seq., and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on June 19, 1986, by Mr.
John M. Neill, an individual, a Complaint and Notice of Hearing was
issued on September 15, 1986, by the Regional Director for Region IX,
Federal Labor Relations Authority, San Francisco, California. The
Complaint, which was amended at the hearing, alleges that American
Federation of Government Employees, Local 1857, AFL-CIO, (hereinafter
called the Union or Local 1857), violated Sections 7116(b)(1) and (8) of
the Federal Service Labor-Management Relations Statute, (hereinafter
called the Statute), by virtue of its actions in deliberately and
unjustifiably excluding Mr. Neill from a grievance settlement and
thereby depriving him of back pay compensation to which he was entitled.
Thus, it is the General Counsel's contention that Local 1857's action
in the aforementioned respect breached its duty of fair representation
imposed by Section 7114(a)(1) of the Statute.
A hearing was held in the captioned matter on November 17, 1986, in
Sacramento, California. All parties were afforded the full opportunity
to be heard, to examine and cross-examine witness, and to introduce
evidence bearing on the issues involved herein. The General Counsel and
the Respondent submitted post-hearing briefs which have been duly
considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL-CIO, at all
times material herein, has been the certified exclusive representative
of a nationwide consolidated unit of nonsupervisory, nonprofessional
employees of the Air Force Logistics Command who are serviced by the Air
Force Logistics Command's Civilian Personnel Office.
Local 1857, at all times material herein, has been an affiliate and
an agent of the American Federation of Government Employees, AFL-CIO,
for purposes of representing the unit employees at McClellan Air Force
Base, Sacramento, California. Among other employees represented by
Local 1857 at McClellan Air Force Base are the "Meatcutters" working in
the Commissary. This latter group includes WG-5 Meatcutter Helpers,
WG-8 Meatcutters, and since the position was created in January 1984,
the WL-8 Meatcutter Work Leader.
At all times material herein, Mr. John Neill has been employed in the
Commissary at McClellan Air Force Base and has been a member of the
bargaining unit represented by Local 1857. At all relevant periods
prior to February 5, 1984, Mr. Neill worked as a WG-8 Meatcutter. On
February 5, 1984, he was temporarily promoted to the newly created
position of Meatcutter Work Leader. Thereafter, following the
expiration of 120 days, he was permanently promoted to the position of
Meatcutter Work Leader.
Mr. Edward Jasper Griffin, Jr. has been the Meat Market Manager of
the Commissary since September 1983. In such position he is the
supervisor of the Meatcutters, the Meatcutter Helpers and the Meatcutter
Work Leader. Upon assuming the position of Meat Market Manager he
issued a directive to his subordinates which required them to have
donned their protective equipment prior to reporting for the start of
their respective shifts. The protective equipment includes a plastic
"bump cap" that protects the head from bumps and knicks, a "safety
apron" that's made of a light weight metal mesh with shoulder straps,
"steel toed shoes" and a five finger "safety glove" that goes on the
left hand and is worn when utilizing a knife. In addition the employees
are required to wear white pants, a white smock and a white apron.
Due to Mr. Griffin's directive which required the employees to have
their safety or protective equipment on prior to reporting for work, the
employees were forced to arrive at work five minutes before they were
actually on the clock. Thus, they worked approximately five minutes
without pay.
On November 8, 1985, Local 1857 filed an activity grievance over the
requirement that the Meatcutters in the Commissary don their protective
clothing and equipment prior to the commencement of their shifts.
Thereafter, by a decision issued on December 27, 1985, the Union's
grievance was sustained in part and denied in part. Thus, Air Force
Commissary officials were directed to immediately allow the employees
who were required to wear protective clothing while working to have five
minutes on the clock at the start of their respective shifts to don such
protective clothing. However, Local 1857's requested remedy, i.e. that
all AWOL charges of tardiness be cancelled and that employees who had
worked under Supervisor Griffin since 1983 be paid 1/4 hour of overtime
for each day worked, was denied.
Subsequently, Local 1857 requested arbitration on that part of the
grievance which had been denied by management. However, prior to the
matter being submitted to arbitration, Mr. Mark Commerford, an Air Force
Attorney who had been assigned to the matter, determined that since the
regulation required the Meatcutters to wear protective clothing as part
of their assigned jobs, they were entitled to utilize company time to
don the protective clothing. Accordingly, he concluded that the
Meatcutters were entitled to back pay compensation for the time they had
spent prior to the start of their respective shifts donning protective
clothing. In line with the foregoing conclusion he entered into
discussions with Ms. Dora M. Solorio, 1st Vice President and Chief
Steward of Local 1857, for purposes of reaching an agreement as to which
employees were entitled to overtime pay for the approximately five
minutes they had spent donning protective equipment prior to the start
of their respective shifts. In the early part of May 1986, Ms. Solorio
and Mr. Commerford entered into a settlement which was based on their
previous discussions. According to the settlement each WG-8 Meatcutter
who had been forced to work five minutes prior to the start of his shift
between September 1983 and January 12, 1986 was to be paid for such
time. Further, the settlement also included a WG-5 Meatcutter Helper
who had, during the above cited period, performed meatcutter duties.
The Union, according to the settlement, was to submit a list of eligible
employees.
On an unspecified date between the May 12 and May 23, 1986, Ms.
Solorio submitted a list of 12 employees who allegedly were eligible for
coverage under the settlement agreement. Eleven of such employees were
WG-8 Meatcutters and the twelfth was the WG-5 Meatcutter Helper. On May
23, 1986, Mr. Commerford sent a letter to Ms. Solorio wherein he deleted
the names of four WG-8 Meatcutters for specified reasons and also added
the name of Mr. John Neill. With respect to Mr. Neill's name he
informed Ms. Solorio that Meat Market Manager Griffin had advised him
that Mr. Neill had worked as a WG-8 Meatcutter during the period in
question. After reviewing Mr. Commerford's letter, Ms. Solorio met with
Mr. Commerford and accepted the four deletions from her list. However,
she declined to accept the inclusion of Mr. Neill on the list and
declined to sign off on the matter until such time as his name was
deleted from the list of employees eligible for overtime pay. On May
27, 1986, Mr. Commerford agreed to delete Mr. Neill's name from the list
as long as Ms. Solorio made and signed a notation on the list indicating
that Mr. Neill was deleted at her insistence and the reasons therefor.
Thus, on the final list to which the parties affixed their signatures,
Ms. Solorio wrote the following notation:
I agree to all the names on the list with the exception of John
Neill who is a WL and does not go out on the floor to do
meatcutting until well after the start of the shift,
On the basis of the above letter, the employees identified therein
received back pay for the five minutes that they had spent prior to the
start of their respective shifts putting on protective clothing.
Because his name had been deleted from the list, Mr. John Neill did not
receive any back pay.
According to the credited testimony of Mr. Griffin and Mr. Neill, the
order requiring the employees to have protective clothing on at the
start of their respective shifts was unrelated to the time when they
actually began cutting meat. Thus, even though a meatcutter might not
have been assigned the job of cutting meat at the start of his shift, he
nevertheless was still required to have had donned the protective
clothing when his shift started.
At the hearing Ms. Solorio testified that she had Mr. Neill's name
removed from the list of employees eligible for overtime since the
grievance only included wage grade meatcutters and not work leaders.
Further, according to Ms. Solorio, she also took into consideration the
fact that she "had also been informed for some time that John Neill
would put on his protecting clothing after the start of the shift in the
supervisor's office." Ms. Solorio admits that she never personally
inquired of Mr. Neill whether the information she allegedly received
from approximately nine out of the fourteen employees was correct.
Mr. Neill and Mr. Griffin credibly testified that at all time
pertinent to the grievance Mr. Neill always put on his protective
clothing prior to reporting for work. Morover, a number of witnesses,
testifying on behalf of the Union, acknowledged that prior to becoming a
work leader, Mr. Neill regularly changed into his work clothing prior to
the start of his shift. It was only after he became a work leader,
according to them, that Mr. Neill stopped putting on his protective
clothing before the start of his shift. However, despite their
respective testimony in this respect, as noted above, based particularly
on his demeanor, I have credited Mr. Neill's testimony that he always
put on his protective clothing prior to the start of his shift.
Moreover, as demonstrated at the hearing, Mr. Neill wore his mesh apron
in such a way that it could not be observed under his white smock coat
even if the upper portion of the coat was open. Thus, according th Mr.
Neill, he wore his metal mesh apron without the upper bib portion, which
generally went over the neck, and tied it around his waist. Inasmuch as
I credit Mr. Neill's testimony in this respect, I discredit the
testimony of Respondent's witnesses to the extent that they base their
respective conclusions, that he, Mr. Neill, was not wearing the
protective vest, on their inability to see the vest when the upper
portion of his smock was open.
The three meatcutters testifying on behalf of the Union /1/
acknowledge having had individual problems with Mr. Neill following his
promotion to the position of work leader. Thus, according to them, Mr.
Neill was responsible for having several of the unit employees charged
with being AWOL when they failed to report for work at the start of
their respective shifts due to the fact that they were utilizing,
contrary to instructions, to work time to don their protective clothing.
The record reveals that Mr. Neill's alleged activity in the above
respect was known to the Union and served as the basis for a grievance
by the employees. The Union was also aware that a number of employees
had charged Mr. Neill with making ethnic remarks.
With respect to the coverage of the settlement agreement, i.e., who
was eligible for payment, Mr. Commerford testified that although the
settlement agreement mentioned WG-8 Meatcutters it was intended to cover
all employees who had worked prior to the start of the shift.
Discussion and Conclusions
The General Counsel contends that the Union breached its duty of fair
representation imposed by Section 7114(a) of the Statute and thereby
violated Sections 7116(b)(1) and (8) of the Statute when it deleted Mr.
Neill's name from the list of employees eligible for overtime payments.
Thus, the General Counsel would find that the preponderance of the
credible evidence adduced at the hearing clearly establishes that the
"union deliberately and unjustifiably treated Mr. Neill differently then
other similarly situated bargaining unit employees."
The General Counsel, in his post hearing briefs, makes it clear that
"the complaint does not allege, nor has General Counsel contended, that
Mr. Neill's union membership or lack thereof, played any part in the
Union's discriminatory conduct toward him."
The Union, on the other hand, takes the position that the weight of
the evidence supports a finding that Ms. Solorio, the Union
representative, did not breach the duty of fair representation.
According to the Union, since Ms. Solorio acted reasonably in light of
the information related to her by Mr. Neill's co-workers, there was no
failure to accord Mr. Neill fair representation. Thus, the Union argues
that the test is whether "she acted arbitrarily, discriminatorily or in
bad faith based upon what she knew at the moment."
Finally, the Union points out that at no time was Ms. Solorio ever
informed by either Mr. Neill, Mr. Griffin or Mr. Commerford that she had
improperly excluded Mr. Neill from the list of employees eligible for
overtime pay. Without a showing of such knowledge, it appears to be the
Union's position, that the Union's action falls short of constituting a
failure to accord fair representation to Mr. Neill. Finally, in
accordance with the foregoing, it is the Union's position that a Union
owes no duty of fair representation to an employee who does not seek
such representation.
In agreement with the Union, I find the following facts to be
pertinent to the resolution of the instant complaint. On or about May
27, 1986, the Union filed a grievance concerning the requirement that
the meatcutters don their protective clothing on their own time prior to
the start of their respective shifts. Mr. Neill qualified as a
meatcutter during at least a portion of the relevant period.
Subsequently, he became a work leader, which position was also covered
by the grievance and subsequent settlement, since such settlement was
not limited solely to meatcutters but rather included all bargaining
unit members who were required to spend their own time putting on
protective equipment. /2/ Ms. Solorio, the Union representative, had
been informed by several of Mr. Neill's fellow employees that he, Mr.
Neill, had become a work leader, that in such position he had been
responsible for charging a number of meatcutters with AWOL when they had
been several minutes late, that Mr. Neill had been charged by several
unit employees with making ethnic remarks and that Mr. Neill did not put
on his protective clothing prior to starting his shift. That, Ms.
Solorio, based on the above information, and without any inquiry to Mr.
Neill concerning the validity of the information received from his
fellow unit members, deleted Mr. Neill's name from the list of employees
eligible for overtime payments.
Based upon the above summary of pertinent facts it is clear that Mr.
Neill was treated differently than other similarly situated unit
employees. However, the fact taht he was treated differently than his
fellow unit employees does not necessarily establish that the Union
violated the duty of fair representation imposed by Section 7114(a)(1)
of the Statute.
In National Federation of Federal Employees, Local 1453, et al., 23
FLRA No. 92, the Authority set forth the standard to be applied in
judging whether or not a union had fulfilled its duty of fair
representation. Thus, the Authority stated,
Based upon the clear language of the Statute and the applicable
legislative history, we find that where union membership is not a
factor, the standard for determining whether an exclusive
representation has breached its duty of fair representation under
Section 7114(a)(1) is whether the Union deliberately and
unjustifiably treated one or more bargaining unit employees
differently from other employees in the unit. That is, the
Union's actions must amount to more than mere negligence or
ineptitude, the Union must have acted arbitrarily or in bad faith,
and the action must have resulted in disparate or discriminatory
treatment of a bargaining unit employee.
The Authority further noted that the standard was consistent with the
standard used in Executive Order cases and with the standard used by the
NLRB in deciding similar cases.
Applying the above standard to the pertinent facts summarized, supra,
I find that the Union's action in having Mr. Neill's name deleted from
the list of unit employees eligible for overtime payment breached the
duty of fair representation imposed upon the Union by Section 7114(a)(1)
of the Statute. In reaching this conclusion I rely particularly on the
fact that the Union was aware, at the time that it decided to rely on
information submitted by Mr. Neill's co-workers relative to his
eligibility for overtime, that such co-workers bore animosity to Mr.
Neill predicated on the fact that they believed that he had made ethnic
remarks and participated in activity which resulted in a number os such
co-workers being charged AWOL. Having notice of such animosity, the
Union nevertheless opted to rely on such information, and without more,
insisted that Mr. Neill's name be deleted from the list of eligibles to
his, Mr. Neill's, detriment. Being aware of the animosity existing
between Mr. Neill and his fellow employees, I find that Respondent
should have checked with Mr. Neill for his position on the matter. This
is particularly true when the Union, which attempts to justify its
position on the ground that the grievance was only applicable to WG-8
Meatcutters, knew or should have known, that during part of the
pertinent period in question Mr. Neill had served as a WG-8 Meatcutter.
Finally, one knowledgeable in labor relations, must be highly suspicious
of a Union's motive when it gratuitously removes a unit employee who is
also a union member from eligibility for monetary payments to be borne
solely by management. /3/
Based upon the foregoing considerations, I find that the Union
deliberately and unjustifiably treated Mr. Neill differently from other
unit employees, and thus failed in its duty of fair representation. /4/
Accordingly, I find that by such action, the Respondent Union
violated Section 7116(b)(1) and (8) of the Statute. In order to rectify
the violation it is hereby recommended that the Authority adopt the
following order designed to effectuate the pruposes and policies of the
Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. Section 7118, it is ordered
that the American Federation of Government Employees, Local 1857,
AFL-CIO, shall:
1. Cease and desist from:
(a) Breaching its statutory duty to fairly represent all of the
employees in the bargaining unit by discriminatorily excluding
John Neill, a unit employee in the Meat Department of the
Commissary at McClellan Air Force Base, from a grievance
settlement it negotiated with McClellan Air Force Base.
(b) In any like or related manner, interfering with,
restraining or coercing any employee in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Request McClellan Air Force Base to include Mr. John Neill
in the May 2, 1986, grievance settlement for purposes of computing
and paying to him the overtime that he is entitled to. Failing in
such endeavor, Local 1857, AFGE, AFL-CIO, shall make John Neill
whole for the backpay compensation to which he was entitled under
the terms of the May 23, 1986 grievance settlement between
American Federation of Government Employees, Local 1857, AFL-CIO
and McClellan Air Force Base.
(b) Post at McClellan Air Force Base copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the President of AFGE Local 1857 or his designated agent 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 and employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations notify the Regional Director of 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: March 17, 1987
Washington, D.C.
FOOTNOTES
(*) We have modified the affirmative portions of the Judge's
recommended Order to clarify references to the settlement agreement and
to conform to the orders we have issued in cases involving similar
violations by labor organizations.
(1) Mr. Bruce Winter, Mr. Charles McKay and Mr. Paul McDaniel.
(2) The Union does not agree that the settlement was to include
everyone in the unit who was required to don protective clothing on
their own time.
(3) The record indicates that Mr. Neill served as a Union Steward in
1983 and 1984. There is no showing that he has since such time resigned
his Union membership.
(4) In reaching this conclusion, I find, contrary to the contention
of the Union, that in order to find a violation of the duty of fair
representation, it is not necessary, in all cases, to establish that the
affected employee individually sought representation by the Union.
Here, inasmuch as the grievance herein was a class action applicable to
all similarly situated unit employees there was no necessity for Mr.
Neill to make an individual request for representation.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT breach our statutory duty to fairly represent all of the
employees in the bargaining unit by discriminatorily excluding John
Neill, a unit employee in the Meat Department of the Commissary at
McClellan Air ForeBase, from a grievance settlement we have negotiated
with McClellan Air Force Base.
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 request McClellan Air Force Base to include Mr. John Neill in
the May 2, 1986, grievance settlement for purposes of computing and
paying to him the overtime that he is entitled to. Failing in such
endeavor, Local 1857, AFGE, AFL-CIO, shall make John Neill whole for the
backpay compensation to which he was entitled under the terms of the May
23, 1986 grievance settlement between American Federation of Government
Employees, Local 1857, AFL-CIO and McClellan Air Force Base.
. . . (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 94103,
and whose telephone number is: (415) 995-5000.
28 FLRA NO. 85
DOD, Dep't of the Air Force, and Air Force Plant Representative
Office (Dep't 27), General Dynamics, Fort Worth Division, Fort Worth,
Tex., and AFGE, Local 1361,
Case No. 6-CA-710102 (Decided August 2, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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 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 judge ruled that all
arguments raised by the agency against the disclosure of the information
were disposed of by Authority precedent.
Case No. 6-CA-70102
UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE AIR FORCE AND
AIR FORCE PLANT REPRESENTATIVE OFFICE
(DEPARTMENT 27), GENERAL DYNAMICS,
FORT WORTH DIVISION,
FORT WORTH, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1361
Charging Party
DECISION AND ORDER
I. Decision
The Administrative Law Judge issued the attached decision in this
case. The Judge found that the Respondent, Air Force Plant
Representative Office (Department 27), General Dynamics, Fort Worth
Division, Fort Worth, Texas (AFPRO), had engaged in the unfair labor
practices alleged in the complaint by refusing to provide the Charging
Party with the names and home addresses of bargaining unit employees.
He ordered that Respondent AFPRO be ordered to take appropriate remedial
action. The Judge further found that Respondent United States
Department of Defense, Department of the Air Force had not engaged in
certain other unfair labor practices alleged in the complaint, and he
recommended dismissal of that portion of the complaint. The Respondent
has filed exceptions to the Judge's decision finding that Respondent
AFPRO had engaged in the unfair labor practices alleged, and the General
Cousel filed an opposition to the Respondent's exceptions. No
exceptions were filed to the Judge's dismissal of the complaint with
respect to Department of the Air Force.
Pursuant to section 2423.29 of our Regulations and section 7118 of
the Federal Service Labor-Management Relations Statute (the Statute), we
have reviewed the rulings of the Judge and we find that no prejudicial
error was committed. The rulings are affirmed. On consideration of the
Judge's decision and the entire record, we adopt the Judge's findings,
conclusions, and recommended Order. We note in particular that no
exceptions were filed to the Judge's dismissal of that portion of the
complaint alleging violations of the Statute by the Department of the
Air Force.
II. Order
A. Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Federal Service Labor-Management
Relations Statute, the Air Force Plant Representative Office (Department
27), General Dynamics, Fort Worth Division, Fort Worth, Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, AFL-CIO, Local 1361, the exclusive representative
of certain of its employees, the names and home addresses of all unit
employees.
(b) 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) Furnish the American Federation of Government Employees, AFL-CIO,
Local 1361, the exclusive representative of certain of its employees,
with the names and home addresses of all employees it represents.
(b) Post at its facility where bargaining unit employees represented
by the American Federation of Government Employees, AFL-CIO, Local 1361
are located, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commanding Officer of the Air Force Plant
Representative Office (Department 27), General Dynamics, Fort Worth
Division, Fort Worth, Texas, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2424.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, Dallas, Texas, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
B. The portion of the complaint that alleges violations of the
Statute by the United States Department of the Defense, Department of
the Air Force is dismissed.
Issured, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, AFL-CIO, Local 1361, the exclusive
representative of units of our employees, the names and home addresses
of all bargaining unit employees it represents.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them be the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 1361, the exclusive representative of units of our
employees, with the names and home addresses of all bargaining unit
employees 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 of the Federal Labor Relations Authority, Region VI, whose
address is: Federal Office Building, 525 Griffin Street, Suite 926,
Dallas, TX 75202 and whose telephone number is: (214) 767-4996.
Case No.: 6-CA-70102
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE AND
AIR FORCE PLANT REPRESENTATIVE
OFFICE (DEPARTMENT 27), GENERAL
DYNAMICS, FORT WORTH DIVISION
FORT WORTH, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1361
Charging Party
Christopher J. Ivits, Equire
For the General Counsel
James A. Harper, Esquire
For the Respondent
Mr. Carl W. Holt
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq. and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on December 24, 1986, by
Local 1361, American Federation of Government Employees, (hereinafter
called the Union or Local 1361), a Complaint and Notice of Hearing was
issued on February 27, 1987, by the Regional Director for Region VI,
Federal Labor Relations Authority, Dallas, Texas. The Complaint alleges
that the United States Department of Defense Department of the Air Force
and Air Force Plant Representative Office (Department 27) General
Dynamics, Fort Worth Division, Fort Worth, Texas, (hereinafter called
the Respondent Air Force and Respondent AFPRO), violated Sections
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute), by refusing to
provide the Union with the names and home addresses of bargaining unit
employees. /1/
A hearing was held in the captioned matter on April 29, 1987, in
Dallas, Texas. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. /2/ The General Counsel and the
Respondent submitted post-hearing briefs which have been duly considerd.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions, and recommendations.
Findings of Fact
The Union is the exclusive representative of two units of
Respondent's employees employed at Air Force Plant Representative's
Office, Department of Air Force, General Dynamics, Fort Worth, Texas.
The parties Stipulated as follows:
(1) Respondent AFPRO is a subdivision of Respondent Air Force.
(2) Major Rodney W. Wickers is the legal advisor to the
commander of AFPRO and is a legal representative of AFPRO.
(3) The Union has requested the names and home addresses of
bargaining unit employees, and AFPRO has denied their request.
The date of the request was on or about December 5, 1986. The
denial is dated December 8, 1986. General Counsel's Exhibit
Number 2 consists of the request and the denial.
(4) AFPRO does not maintain a list of bargaining employees per
se.
(5) The Finance Office for AFPRO is located at Kirkland Air
Force Base, New Mexico, and the personnel files are also located
at Kirkland Air Force Base, New Mexico.
In order to obtain a list such as requested by the Union, separate
computer systems would have to be merged to create such a list. A list
could be accomplished within a reasonable time period or time limit.
The list does not constitute guidance, advice, counselling or
training for management officials or supervisors relating to collective
bargaining.
Mr. Robert E. Fitch, President of Local 1361 and the author of the
letter to Colonel Robert Riggs, wherein the Union requested the names
and home addresses of all bargaining unit employees, testified that on
December 9, 1986, the day after receiving the Respondent AFPRO denial of
his request he held a conversation with Major Rodney Wickers. According
to his, Mr. Fitch's uncontradicted testimony, he was told by Major
Wicker's that the reason that the names and addresses were not supplied
was that "he had been directed by headquarters not to furnish it." Mr.
Fitch further testified that he understood heardquarters to mean
"Kirkland Air Force Base at the headquarter AFCMD". /3/ Mr. Fitch
further testified that as of the date of the hearing, the Union had not
received the names and home addresses of the bargaining unit employees.
Mr. Carl Holt, a National Representative for AFGE, testified that
upon being informed by Mr. Fitch that Respondent AFPRO had refused his
request for the home addresses of the bargaining unit employees, he met
with Major Rodney Wickers and inquired as to the reasons for the denial.
Major Wickers informed him that AFCMD'S labor relations office which
services AFPRO and is located at Kirkland Air Force Base gave him the
directions to deny the Union's request.
Discussion and Conclusions
The General Counsel relying on the Authority's decision in Farmers
Home Administration, supra, takes the position that Respondent AFPRO
violated sections 7116(a)(1), (5) and (8) of the Statute when it failed
and refused to make the names and home addresses of bargaining unit
employees available to the Union. Alternatively, General Counsel,
relying on the Authority's decision in U.S. Department of the Treasury,
IRS and IRS, Austin District and IRS, Houston, District, 23 FLRA No.
100, contends that the record supports the conclusion that Respondent
Air Force violated Sections 7116(a)(1) and (5) of the Statute when it
interfered with the bargaining relationship between the Union and
Respondent AFPRO and directed AFPRO not give the Union the names and
home addresses of the bargaining unit employees. Inasmuch as Repondent
Air Force was responsible for the actions of its subordinate AFPRO in
not making the names available, the General Cousel would further find
that Respondent Air Force violated Sections 7116(a) (1), (5) and (8) of
the Statute.
Respondent's Counsel, who acknowledges the Authority's findings to
the contrary, contends that the disclosure of the home addresses of the
bargaining unit employee would violate the Privacy Act. Although not
argued in his post-hearing brief, it appears that Counsel for the
Respondent also challenges the necessity for the names since he
attempted to prove at the hearing that there were other alternative
means of communication available to the Union.
In agreement with the General Cousel I find that the Authority's
decision in Farmers Home Administration, Finance Office, St. Louis,
Misouri, supra, is dispositive of all Respondent's contentions and/or
defenses. Thus, the Authority held that release of the names and home
addresses of unit employees is not prohibited by the Privacy Act, that
regardless of the existence of alternative means of communication the
names and home addresses of unit employees should be supplied to the
Union on request, and, finally, that the exclusive representative need
not offer any explanation as to the reasons it seeks such information
since the Union's need "is so apparent and essentially related to the
nature of exclusive representation itself . . .". /4/
Accordingly, based primarily on the Authority's decision in Farmers
Home Administration, Finance Office, St. Louis, Missouri, supra, I find
that Respondent AFPRO'S refusal to furnish the Union with the names and
home addresses of bargaining unit employees constituted a violation of
Section 7116(a)(1), (5) and (8) of the Statute.
To the extent that the Complaint, alternatively, alleges the AFPRO'S
action in refusing to make the home addresses available was at the
direction of Respondent Air Force, I find that the record evidence fall
short of establishing such a fact. Thus, all that the record shows is
that on two occasions when AFPRO representatives were questioned as to
the reasons for the refusal of AFPRO to make the requested information
available, they were told that "AFCMD'S labor relations office at
Kirland AFB" or "headquarter" had instructed AFPRO not to make the
addresses available. Such non-specific testimony, standing alone, is
insufficient to establish that Respondent Department of the Air Force
was responsible for AFPRO'S action. Accordingly, it is hereby
recommended that the Authority dismiss the Complaint in its entirety to
the extent that it names the United States Department of Defense
Department of the Air Force as a respondent and charges such entities
with a violation of Sections 7116(a)(1), (5) and (8) of the Statute.
Having found that Respondent AFPRO violated the Statute by refusing
to supply the Union with the names and home addresses of the bargaining
unit employees, it is hereby recommended that the Federal Labor
Relations Authority adopt the following order designed to effectuate the
purposes and policies of the Statute.
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, 5 U.S.C., Section 7118, it
is ordered that the Air Force Plant Representative Office (Department
27) General Dynamics, Fort Worth Division, Fort Worth, Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, Local 1361, the
exclusive representative of a unit of its 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 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 Federal Service Labor-Management Relations
Statute:
(a) Furnish the American Federation of Government Employees,
AFL-CIO, Local 1361, the exclusive representative of a unit of its
employees, the names and home addresses of all employees in the
bargaining unit.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government employees,
AFL-CIO, Local 1361, are located, copies of the attached Notice on
forms to be furnished by the Federal Labor relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer of the Air Force Plant Representative Office (Department
27) General Dynamics, Fort Worth Division, Fort Worth, Texas, and
shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are
not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal
Labor Relations Authority, 525 75202, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the Complaint, to the extent that it joins
United States Department of the Defense Department of the Air Force as a
party respondent, should be, and hereby in dismissed in its entirely.
/s/ Burton S. Sternburg
BURTON S. STERNBURG
Administrative Law Judge
Dated: June 24, 1987
Washington, D.C.
FOOTNOTES
(1) According to the Complaint Respondent AFPRO allegedly refused to
make the requested information available to the Union pursuant to
instructions from Respondent Air Force.
(2) Based on the Federal Labor Relations Authority's decision in
Farmers Home Administration, Finance Office, St. Louis, Missouri, 23
FLRA No. 101, Resondent was denied the opportunity to put on evidence
which would allegedly establish that the Union had alternative means of
communication with the unit employees.
(3) Although no specific explanation of AFCMD appears in the record a
letterhead indicates that the initials stand for "Air Force Contract
Management Division", which appears to be a division of AFPRO.
(4) Although not specifically raised as a defense by Counsel for the
Respondent, I find that the requested material to be "normally
maintained" and "reasonably available" despite the fact compilation of
same necessitates the merger of two separate computer systems. See,
Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 24 FLRA
No. 5, wherein the Authority adopted the Administrative Law Judge's
conclusion that the utilization of 40-man hours to dompile the home
addresses of bargaining unit employees did not negate a finding that the
material was "readily available".
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
We 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 by the American
Federation of Government Employees, AFL-CIO, Local 1361, the exclusive
representative of a bargaining unit of our employees, the names and home
addresses of all employees in the bargaining unit.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of their rights guaranteed by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
AFL-CIO, Local 1361, the exclusive representative of a bargaining unit
of our employees, the names and home addresses of all employees in the
bargaining unit.
. . . (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 VI,
whose address is: 525 Griffin Street, Suite 926, Dallas, TX 75202, and
whose telephone number is: (214) 767-4996.
28 FLRA NO. 84
VA, Washington, D.C., and VA Medical Center, Houston, Tex., and AFGE,
Local 1633, Case No. 6-CA-70087 (Decided August 21, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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 PERSONAL 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))
TYPES OF INFORMATION SOUGHT
NAMES AND 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)
DIGEST NOTES
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. 6-CA-70087
VETERANS ADMINISTRATION,
WASHINGTON, D.C., AND
VETERANS ADMINISTRATION MEDICAL
CENTER, HOUSTON, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1633
Charging Party
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority under section 2429.1(a) of our
Regulations based on the parties' stipulation of facts. The complaint
alleges that the Resondent violated section 7116(a)(1), (5), and (8) of
the Federal Service Labor-Management Relations Statute (the Statute) by
refusing to provide the Charging Party with the names and home addresses
of bargaining unit employees. The Respondent and the General Counsel
filed briefs. For the reasons stated below, we find that the Respondent
has committed the unfair labor practices as alleged.
II. Facts
The American Federation of Government Employees, AFL-CIO (AFGE) is
the exclusive representative of a consolidated unit which includes,
among other units, a unit of eligible nonprofessional employees at the
Veterans Administration Medical Center, Houston, Texas. Local 1633 (the
Union) acts as AFGE'S agent with respect to the employees. By letter
dated November 17, 1986, the Union requested the names and home
addresses of all bargaining unit employees, which, by letter dated
December 5, 1986, the Respondent declined to provide. The parties have
stipulated that the Respondent maintains a computerized listing of all
unit employees and their home addresses at its data processing center in
Austin, Texas. The information requested is maintained in the official
personnel files at the Medical Center, and each supervisor maintains
files on unit employees containing the requested information.
III. Positions of the Parties
A. The Respondent
The Respondent contends that disclosure of the information requested
is prohibited by law. Additionally, the Respondent argues that the
information is not relevant and necessary to the Union's
representational duties and that there are alternative means to
communicate with the employees. The Respondent further asserts that
such disclosure would violate the employees' right to privacy as
protected in the parties' master agreement.
B. The General Counsel
The General Counsel argues that this case is controlled by the
Authority's decision on remand 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). The General Cousel submits that
the Respondent's refusal to provide the names and home addresses of
bargaining unit employees violates section 7114(b)(4) of the Statute and
consitutes the unfair labor practices alleged in the complaint.
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of the names and home addresses of bargaining unit employees to
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 of Home analyzed the two exceptions to the Privacy
Act's bar to disclosure of personal information pertinent to the release
of employees' names and home addresses: exception (b)(2), concerning
the Freeedom of Information Act, and exception (b)(3), relating to
"routine use" of information. We found that both exceptions to the
Privacy Act's bar applied so as to authorize release of the information
under the Privacy Act. We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available.
Consistent with our decision in Farmers Home, we therefore find that
the Respondent was required to furnish the Union with the names and home
addresses of the employees in the bargaining unit and its refusal to do
so violated section 7116(a)(1), (5), and (8) of the Statute. In so
finding, we conclude that the Respondent fails to establish that the
parties' master agreement prohibits release of the names and home
addresses of the bargaining unit employees or that the agreement
constitutes a clear and unmistakable waiver of the exclusive
representative's statutory right to the information. See, for example,
Veterans Administration, Washington, D.C. and Veterans Administration
Medical Center, Cincinnati, Ohio, 26 FLRA No. 86 (1987) (and the case
cited in the decision).
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 Veterans Administration, Washington, D.C., and Veterans
Administration Medical Center, Houston, Texas, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 1633, the agent for the exclusive
representative of a unit of its employees, the names and home addresses
of all unit employees located at the Veterans Administration Medical
Center, Houston, Texas.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Furnish the American Federation of Government Employees, Local
1633, the agent for the exclusive representative of a unit of its
employees, with the names and home addresses of all unit employees
located at the Veterans Administration Medical Center, Houston, Texas.
(b) Post at the Veterans Administration Medical Center, Houston,
Texas, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Director of the Veterans Administration Medical
Center, Houston, Texas, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Resonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2424.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal Labor
Relations Authority, Dallas, Texas, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 1633, the agent for the
exclusive representative of a unit of our employees, the names and home
addresses of all bargaining unit employees located at the Veterans
Administration Medical Center, Houston, Texas.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 1633, the agent for the exclusive representative of a unit of our
employees, with the names and home addresses of all bargaining unit
employees located at the Veterans Administration Medical Center,
Houston, Texas.
. . . (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 of the Federal Labor Relations Authority, Region VI, whose
address is: Federal Office Building, 525 Griffin Street, Suite 926,
Dallas, TX 75202 and whose telephone number is: (214) 767-4996.
28 FLRA NO. 83
Warner Robins Air Logistics Center, Robins Air Force Base, Ga., and
AFGE, Local 987 (Williams, Roger C., Arbitrator), Case No. 0-AR-1290
(Decided August 21, 1987)
STATUTE
7106(a)(2)(A) & (B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMINDES ORDERED BY ARBS
PERFORMANCE APPRAISALS
PERFORMANCE APPRAISAL CHANGED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
7106(a)(2)(B)
ARB AWARDS, REVIEW OF, EXCEPTIONS DENIED
ARB AWARDS CHANGING PERFORMANCE APPRAISALS
TEST OF APPROPRIATE CIRCUMSTANCES
PERFORMANCE APPRAISAL SYSTEM
ARBITRATION AWARDS AFFECTING PERFORMANCE APPRAISALS
PERFORMANCE APPRAISAL CHANGED
DIGEST NOTES
An employee received a rating of "did not meet" for a noncritical job
element pertaining to time and attendance. As a result, the employee
was given an overall performance rating of "minimally acceptable." He
filed a grievance. The arbitrator determined that the employee's
supervisor had so rated him on the job element due to a miscalculation
of the percentages involved, and that the employee indeed had met the
standard for the job element. The arbitrator ordered that the
employee's rating be changed to "met," and his overall performance
rating accordingly changed to "fully successful."
In its exceptions, the agency argued that the award was contrary to
section 7106(a)(2)(A) and (B), because, rather than directing the agency
to re-evaluate the grievant's performance, the arbitrator had ordered
that the rating be changed as he had specified in his award.
The Authority denied the agency's exception. Under Authority
precedent, an arbitrator sustaining a grievance such as the instant one
may direct that the grievant's performance receive the rating to which
the grievant is entitled under the established elements and standards,
in appropriate circumstances. The circumstances are appropriate when
the disputed appraisal, elements, and standards are such that they
permit the arbitrator to determine, "in an objective, nondiscretionary,
and essentially mechanistic manner," and without an independent
evaluation, that the grievant is entitled to a different rating. The
circumstances of this case, said the Authority, met this test.
Concluding, therefore, that the arbitrator had not independently
evaluated the grievant's performance or substituted his judgment for
that of management, the Authority upheld the arbitrator's award.
(majority opinion, with concurrence in result)
Case No. 0-AR-1290
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 987
Union
DECISION /1/
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator Roger C. Williams filed by the Agency under section 7122(a)
of the Federal Sector Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations.
II. Background and Arbitrator's Award
The grievance in this case concerns the performance rating of the
grievant for his job element 5E, pertaining to time and attendance, for
the rating period ending January 31, 1985. Subelement A of element 5E
establishes a standard of 3-5 instances of tardiness during the rating
period. Subelement B apparently establishes a standard of sick leave
usage in 1-3 day increments, excluding major illnesses, of between 3-1/2
to 4 percent of available hours. /2/ The grievant's supervisor rated
him as not meeting the standard for both subelements stating in the
grievant's appraisal that the grievant had been tardy mor than 5 times
during the rating period and that the grievant's use of sick leave of
1-3 day increments during the rating period had exceeded 4 percent of
available hours. Accordingly, the grievant was rated as "did not meet"
for element 5E and, because the element was noncritical, the grievant as
a result received an overall performance rating of "minimally
acceptable." The grievant filed a grievance that was submitted to
arbitration contending that the rating of "did not meet" for both
subelements was incorrect because his actual performance udner both
subelements met the established standard.
The Arbitrator concluded that the evidence and testimony "prove(d)
that (the grievant) was not tardy more than 5 times during the appraisal
period." The Arbitrator noted in particular that although the grievant's
supervisor testified that the grievant was tardy "8 or 9 times," the
supervisor had no records to substantiate any tardiness of the grievant.
On this basis the Arbitrator determined that the established standard
had been incorrectly applied to the grievant and that under the
established standard, the grievant's performance met the standard. The
Arbitrator also determined that the grievant's supervisor had
miscalculated the percentage of available hours during the rating period
the grievant's 48 hours of sick leave representd. The Arbitrator ruled
that accurately calculated under the method applied by the grievant's
supervisor, the grievant's sick leave was less than 4 percent of
available hours. Consequently, the Arbitrator ruled that the grievant's
performance met the established standard and that the grievant's
supervisor would have rated the grievant as having met the standard if
he had calculated the percentage correctly. Accordingly, the Arbitrator
determined that the grievant had met the established standards for job
element 5E and that he had been incorrectly evaluated as having not met
the standards. As his award, the Arbitrator directed that the
grievant's rating be changed to "met" and that because the grievant had
met the standard for all his job elements, his overall performance
rating be changed to "fully successful."
III. Exception
The Agency contends that the award is contrary to management rights
under section 7106(a)(2)(A) and (B) of the Statute. The Agency
maintains that the award is deficient because instead of directing
management to reevaluate the grievant's performance under the disputed
element, the Arbitrator improperly directed that the grievant's
performance rating be changed from "did not meet" to "met."
IV. Analysis and Conclusions
We conclude that the Agency has failed to establish that the award is
contary to section 7106(a)(2)(A) and (B) of the Statute. In many
decisions we have discussed in detail the role of an abritrator in
resolving disputes pertaining to performance appraisal matters. See,
for example, General Services Administration, Region 10 and American
Federation of Government Employees, Council 236, 22 FLRA No. 8 (1986).
We have found that an arbitrator may resolve a grievance over whether an
employee was adversely affected in his or her performance appraisal by
management's application of the established performance standards. The
arbitrator may sustain the grievance on finding that management had not
properly applied to the grievant the standards which it has established.
In sustaining the grievance, the arbitrator may direct when appropriate
that the grievant's work product or performance be granted the rating to
which entitled under the established elements and standards. As to when
such a direction would be appropriate, we have indicated that the
disputed appraisal and elements and standards should be of the type that
permits the arbitrator "in an objective, nondiscretionary, and
essentially mechanistic manner to determine without an independent
evaluation that the aggrieved employee was entitled to a different
rating under the established standards." GSA, Region 10, 22 FLRA No. 8
at 5; Social Security Administration, Office of Hearings and Appeals,
Region II and American Federation of Government Employees, Local 1760,
21 FLRA No. 86 (1986) at 6.
We find that the appraisal and the elements and standards in dispute
in this case permitted the Arbitrator in an objective, nondiscretionary,
and essentially mechanistic manner to determine without an independent
evaluation that the grievant was entitled to ratings of "met" under the
established standards for both subelements of the disputed element and
consequently a rating of "met" for the element, itself. Based on the
evidence and testimony presented, the Arbitrator resolved the
objectively verifiable dispute over whether the grievant was tardy more
than 5 times during the rating period. Once he found that the grievant
had not been tardy more than 5 times, the Arbitrator determined without
an independent evaluation that the grievant was entitled to a rating of
"met" for that subelement. Similarly, he corrected the miscalculation
of the grievant's supervisor on what percentage of total available hours
the grievant's 48 hours of sick leave represented. Having corrected the
miscaluculation, the Arbirtrator determined without an independent
evaluation that the grievant was entitled to a rating of "met" for the
subelement and would have received that rating from his supervisor but
for the miscalculation.
As we found in Bureau of Prisons, Department of Justice and American
Federation of Government Employees, Local 148, 21 FLRA No. 15 (1986), we
similarly find in this case that consistent with section 7106(a)(2)(A)
and (B) and with Authority precedent, the award has "simply and
appropriately applied to the grievant the performance standards
established by management." Slip op. at 6-7. In short, as in Bureau of
Prisons, the grievance and the award properly related only to the
application of management's performance standards to the grievant. The
award has not resulted in an independent evaluation of the grievant's
performance under the elements in a substitution of judgment by the
Arbitrator for that of management as to what the grievant's evaluation
and rating should be. See Bureau of Prisons at 7. Accordingly, no
basis is provided for finding the award deficient as alleged.
V. Decision
The Agency's exception is denied.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member McKee, concurring in the result
I concur with the conclusion of the majority that the Agency has
failed to establish that the Arbitrator's award is contrary to section
7106(a)(2)(A) and (B) of the Statute. Therefore, I also join in the
result that the Agency's exceptions must be denied.
However, I do not agree completely with the majority's reasoning in
reaching the result. Sepcifically, I would expand the discretion of the
arbitrator in performance appraisal disputes where the arbitrator
determines that management improperly applied established performance
standards. In this instance, my colleagues restrict the arbitrator to a
remedy only where the performance appraisal and the standards permit the
arbitrator
"in an objective, nondiscretionary, and essentially mechanistic
manner to determine without an independent evaluation that the
aggrieved employee was entitled to a different rating under the
established standards."
In my view, an arbitrator should not be so constrained in determining
and awarding the rating to which an employee is entitled under a
performance standard.
I believe that an arbitrator should have the discretion to determine
and award the appropriate rating under any performance standard when it
is determined that management improperly applied the standard in an
appraisal. The arbitrator should not be limited to situations where the
standard is susceptiable to an "objective, nondiscretionary, and
essentially mechanistic" review and application.
In my opinion, the discretion to fashion a remedy in performance
appraisal grievances should be similar to the discretion of the Merit
Systems Protection Board (MSPB) and arbitrators in resolving disputes
concerning performance-based actions under 5 U.S.C. 4303.
When an Agency has removed or demoted an employee for unacceptable
performance, the MSPB or an arbitrator, may examine the employee's
elements and standards in the light of statutory requirements and the
agency's evaluation of the employee's performance under those elements
and standards. Also, the arbitrator may determine whether the agency
has established by substantial evidence that the employee's performance
was in fact unacceptable in one or more of the elements. See, for
example, Callaway v. Department of the Army, 23 M.S.P.R. 592 (1984);
Baker v. Defense Logistics Agency, 25 M.S.P.R. 614 (1985); Rogers v.
Department of Defense Dependents Schools, Germany Region, No. 86-888
(Fed. Cir. March 3, 1987). Where the agency does not support its
conclusions with the requisite substantial evidence, the MSPB or an
arbitrator may order the agency to cancel the action and make the
grievant whoel. See Callaway, supra.
In view of the discretion exercised by the MSPB and arbitrators in
these instances, I have concluded that it would be consistent, where
cases may be appealed to the Authority under section 7122(a) of the
Statute, for arbitrators to have similar discretion in resolving similar
disputes. In such a case, management should have to substantiate its
conclusion concerning an employee's rating and the arbitrator should
have the discretion to determine whether the evidence adequately
supports the rating.
If an arbitrator determines that a rating is not adequately
supported, the arbitrator should have the discretion to direct the
agency to cancel the rating. Under the standard and the evidence
presented, the arbitrator should have the discretion to grant the rating
to which the grievant is entitled.
I recognize that the position of the majority is based on currently
applicable Authority precedent. On the other hand, also well
established is that arbitrators have considerable latitutde in
fashioning remedies in disputes. Veterans Administration Hospital,
Newington, Connecticut and National Association of Government Employees,
Local R1-109, 5 FLRA 64, 67 (1981), citing United Steelworkers of
America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960).
Of course, an arbitrator's award must not be contrary to law or
Government-wide rule or regulation. I do not believe that allowing an
arbitrator this discretion is contrary to any law, rule or regulation.
Moreover, Federal courts have reviewed and approved the discretion of
MSPB and arbitrators in performance-based action cases. In addition,
allowing arbitrators such discretion would promote grievance arbitration
as an effective means of dispute resolution. This is a benefit Congress
clearly recognized in the Statute.
I conclude, in view of the discretion exercised by the MSPB and
arbitrators in performance-based actions, that in similar cases, which
may be appealed to the Authority under section 7122(a) to have similar
discretion. Therefore, to the extent that prior Authority decisions
would unduly limit the arbitrator's discretion in awarding an aggrieved
employee a performance rating, I believe that those decisions hould no
longer be followed.
Accordingly, I agree with the result reached by my colleagues but I
do not reach the result by their analysis.
Issued, Washington, D.C., August 21, 1987
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Member McKee filed a separate opinion concurring in the result.
(2) As quoted by the Arbitrator in his award, the language of the
standard, itself, is unclear. However, the record before the Authority,
particularly the application of the standard to the griveant, indicates
that sick leave usage in the range of 3-1/2 to 4 percent meets the
standard.
28 FLRA NO. 82
NTEU and HNS, Region V, Chicago, I11., Case No. 0-NG-1340 (Decided
August 21, 1987)
STATUTE
7105(a)(2)(E)
7106(a)(2)(C)
SUBJECT MATTER INDEX ENTRIES
APPOINTMENTS, SELECTION FOR
RATING AND RANKING PANELS
UNION OBSERVERS
FEDERAL PERSONNEL MANUAL
SUPPLEMENT 335-1, APPENDIX B, SECTION B-13A
MANAGEMENT RIGHTS: GENERALLY
DELIVERATIVE PROCESS LEADING TO EXERCISE OF RESERVED MGM'T RTS
PROMOTIONS
RATING PANELS
UNION PARTICIPATION ON PANEL
DIGEST NOTES
The Authority considered a single proposal in this negotiability
appeal.
The proposal, which would have permitted union observers at merit
promotion rating and ranking panels, in continuance of a practice under
a provision of the parties' agreement which the agency had announced it
no longer could enforce, was ruled nonnegotiable by the Authority. In
agreement with the agency's argument against the proposal, the Authority
ruled that the provision was barred under Authority precedent holding
that the presence even of a passive union observer at rating and ranking
panels would interfere with management's section 7106(a)(2)(C) right to
select. The Authority cited numerous cases in which it has held that
management's 7106 rights include not only the right to act but the right
to discuss and deliberate; proposals providing for union participation
in such discussion and deliberation, said the Authority, interfere with
management's substantive decision-making.
Case No. 0-NG-1340
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, REGION V,
CHICAGO, ILLINOIS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statue). It raises issues
concerning the negotiability of a single proposal submitted by the Union
in response to notification by the Agency that it would no longer
enforce a provision of the parties' collective bargaining agreement.
The particular provision allowed for Union observers at merit promotion
rating and ranking panels. The Agency asserted that the provision was
no longer enforceable in view of the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 2298 and Department
of the Navy, Navy Exchange, Charleston, South Carolina, 22 FLRA No. 37
(1986), that the presence of even a passive union observer would
interfere with management's right to select under section 7106
(a)(2)(C).
II. The Proposal
When a promotion panel is established for the purposes of
ranking eligible candidates in accordance with subsection I of
this section, the Employer will appoint at least three (3) members
to evaluate the potential of the candidate for the vacant
position. Whenever a bargaining unit employee is appointed as a
ranking panel member, the Union will be notified when such a panel
is convened in order to designate a representative to observe the
panel's operation. Such notification shall be in writing to the
Chapter President and be at least five (5) days in advance.
III. Positions of the Parties
In its petition, the Union notes that the proposal would require a
Union observer on rating and ranking panels only when the Agency
appoints a bargaining unit member to a rating and ranking panel. The
Union argues that by appointing a bargaining unit member to the panel,
the Agency would have elected to include members of the Union's
bargaining unit in internal management discussions and deliberations
involved in the exercise of a management right. Under the proposal, the
role of the Union observer would be to ensure that the interests of unit
employees who are members of ranking panels are maintained and to police
the administration of the contract.
The Agency asserts that the proposal conflicts with its right to
select under section 7106(a)(2)(C) of the Statute. In support, it
contends that the presence of a Union representative on rating and
ranking panels would hamper the operations of the panels.
The Union's response to the Agency's statement of posiition was
untimely and, therefore, we have not considered it. The Union
acknowledges receiving the Agency's statement on December 1, 1986. The
Union's response contains a statement of service dated December 22,
1986, and the response was not received by the Authority until December
29, 1986. Under section 2424.7 of the Authority's regulations the
response should have been filed with the Authority within 15 days after
the date the Union received the Agency's statement of position.
IV. Analysis and Conclusions
The Authority has consistently held that the management rights
enumerated in section 7106 of the Statute encompass not only the right
to act but also the right to discuss and deliberate concerning the
relevant factors upon which decisions as to the exercise of those rights
will be made. National Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 579-81 (1981),
enforced sub nom. National Federation of Federal Employees v. Federal
Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982); National
Federation of Federal Employees, Local 1431 and Veterans Administration
Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Moreover.
the Authority has held that proposals which require union participation
in such discussions and deliberations pertaining to the exercise of
management's right are not procedures, but concern management's
substantive decision making process. These types of proposals directly
interfere with management's statutory right to make the decisions
involved. See, for example, Homestead Air Force Base (requirements for
union observers at management conferences regarding decisions to
contract out work held nonnegotiable); VA Medical Center, East Orange
(union participation on committees which decide, among other things,
whether to remove probationary employees held nonnegotiable); National
Federation of Federal Employees, Local 1497 and Headquarters, Lowry
Technical Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565,
566-68 (1983) (union participation on panel to determine selective
factors held nonnegotiable).
The Authority has further held that regardless of whether the role of
a union observer is active or passive, the observer's presence would
interfere with the agency's right to freely engage in internal
discussion and deliberation prior to making decisions to take actions
under section 7106 and would improperly interject an outside party into
management's internal decision-making process. American Federation of
Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 3);
American Federation of Government Employees, AFL-CIO, Local 2302 and
U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA 17 (1984) (Propsal
2).
As described in the Federal Personnel manual Supplement 335-1,
Appendix B, section B-13A, a promotion rating panel is a permanent or ad
hoc committee established by management to evaluate, compare and rank
employees for promotion. Thus, a promotion panel is a body created by
management to carry out part of its deliberative process in the exercise
of that management right. Its functions are "wholly management
related." Compare National Federation of Federal Employees, Local 1263
Defense Language Institute, Presidio of Monterey, California, 14 FLRA
761 (1984) (Provision 1), rev'd as to other matters sub nom. Defense
Language Institute v. Federal Labor Relations Authority, 767 F.2d 1398
(9th Cir. 1985) (when meetings are not "wholly management related").
Its functions concern discussion or action on aspects of the evaluation
and comparison of the qualifications of applicants for selection and are
an integral part of management's exercise of its right under section
7106(a)(2)(C) to make selections. See American Federation of Government
Employees, AFL-CIO, Mint Council 157 and Department of the Treasury,
Bureau of the Mint, 19 FLRA 640 (1985) (Provision 3). The fact that the
Agency assigns a bargaining unit employee the work of participating on a
promotion panel does not change the nature of the panel as a body
performing a function which is an integral part of the exercise of a
management right.
The Union argues, however, that by including a bargaining unit
employee on a promotion panel, the agency has opened that deliberative
process to an "outside party" and has lost the protection of section
7106 to exclude the Union from it. We do not find that argument
persuasive. Under section 7106, management retains its discretion to
assign to unit employees whatever work is necessary to accomplish the
mission of the Agency. Accordingly, a proposal which prohibited the
agency from assigning bargaining unit employees the task of rating,
evaluating, or grading the performance of other unit employees was held
nonnegotiable because it directly interfered with the agency's right to
assign work. American Federation of Government Employees, AFL-CIO,
Local 3385 and Federal Home Loan Bank Board, District 7, Chicago,
Illinois, 7 FLRA 398 (1981).
As to the proposal in this case, we find that an employee performing
a work assignment which comprises a part of management's deliberative
process is not in any realistic sense an "outside party." Rather, the
employee must follow the prescriptions of management concerning the
substance and confidentiality of the work. Such work assignments do not
diminish the Agency's right to limit access to the internal deliberative
process involved in the exercise of its management rights and do not
give the Union the right to negotiate to have an observer present.
Based on these reasons we find that the proposal interferes with the
Agency's right to make selections under section 7106(a)(2)(C) and is not
within the duty to bargain.
V. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 81
NFFE, Local 1623, and South Carolina National Guard, Columbia, S.C.,
Case No. 0-NG-1189 (Decided August 21, 1987)
STATUTE
7105(a)(2)(D), (E)
7106(a)(2)(A), (B); 7106(b)(2), (3)
7114(c)
7117(a)(1)
SUBJECT MATTER INDEX ENTRIES
ASSIGN WORK, RESERVED MGM'T RIGHT
PERFORMANCE STANDARDS
CODE OF FEDERAL REGULATIONS
5 C.F.R. 531.411
5 C.F.R. 531.412(b)
COMPENSATION SYSTEM
WAGES/SALARY RATES/FRINGE BENEFITS
WITHIN-GRADE INCREASES
PERFORMANCE STANDARDS
CONDITIONS OF EMPLOYMENT (7103(a)(14)), STATUTORY EXCLUSIONS
MILITARY ASPECTS OC CIVILIAN EMPLOYMENT (7103(a)(2)(B)(ii))
GRIEVANCE PROCEDURE, NEGOTIATED
ADVERSE ACTIONS -- NATIONAL GUARD TECHNICIANS
NATIONAL GUARD TECHNICIANS
DISCIPLINE
MILITARY DISCIPLINE BY TECHNICIAN'S MILITARY UNIT
GRIEVANCES
PERFORMANCE APPRAISAL SYSTEM
CRITICAL ELEMENTS
EMPLOYEE PARTICIPATION IN SYSTEM'S FORMULATION/IMPLEMENTATION
PERFORMANCE STANDARDS
CONTENT OF PERFORMANCE STANDARDS
UNITED STATES CODE
5 U.S.C. 4302(b)(6)
5 U.S.C. 5596
32 U.S.C. 709
32 U.S.C. 709(e)(1), (4)
DIGEST NOTES
The Authority considered five provisions of a local agreement
disapproved by the agency's head in this negotiability appeal.
A nonnegotiable provision would have included suspensions of thirty
days or fewer in the parties' negotiated grievance procedure. The
Authority ruled the provision inconsistent with section 709(e) of the
National Guard Technicians Act (32 U.S.C. 709(e)), which reserves to the
adjutant general the right to take action regarding suspensions.
(provision 1)
A negotiable provision would define adverse actions to include
non-disciplinary removals. The Authority rejected the agency's argument
that the provision conflicted with 32 U.S.C. 709(e)(1) and (e)(4).
(provision 2)
A nonnegotiable provision would have required agreement between
employees and management on performance standards and critical elements
for employees or positions. Because the establishment and content of
performance standards are matters within the sole discretion of
management, said the Authority, the provision was in violation of
section 7106(a)(2)(A) and (B). The provision also was defective in
assigning responsibilities to persons outside the bargaining unit.
(provision 3)
A provision dealing with within-grade increases was found to be
partly within and partly outside the duty to bargain. A sentence which
would have required the agency to give a retroactive within-grade
increase to an employee whose performance improved after an initial
denial on grounds of unacceptable performance was ruled nonnegotiable,
as contrary to 5 C.F.R. 531.412(b). (last sentence, provision 4) The
remainder of the provision, which dealt with notification to employees
of denials of with-in grade increases, was ruled negotiable. (first
three sentences, provision 4)
A provision dealing with "technician/military compatibility" was
ruled nonnegotiable, on the grounds that it concerned a matter connected
with the military aspects of civilian employment; as such, the matter
was excluded from the definition of "conditions of employment" of
section 7103(a)(14). (provision 5)
Case No. 0-NG-1189
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1623
Union
and
SOUTH CAROLINA NATIONAL GUARD COLUMBIA, SOUTH CAROLINA
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 five provisions of a local agreement disapproved by the
Agency head under section 7114(c) of the Statute. /1/
II. Provision 1
ARTICLE XVI
Section 4. FORMAL DISCIPLINARY ACTIONS: DEFINITION: A formal
disciplinary action is any action taken against an employee which
causes a letter or other document which is critical of the
employee to be placed in the personnel folder up to and including
suspensions of thirty (30) days or less.
A. Positions of the Parties
The Agency Points out the parties' negotiated grievance procedure
covers disciplinary actions but not adverse actions. The Agency argues
that by defining suspensions of 30 days or less as "formal disciplinary
actions" and not as adverse actions, the provision effectively brings
suspensions within the coverage of the parties' grievance procedure and
subjects such actions to arbitral review. Consequently, according to
the Agency, the provision violates 32 U.S.C. Section 709(e)(4) and (5)
and an Agency regulation, for which a compelling need is asserted, which
limit the appeal of suspensions, among other matters, to the adjutant
general of the jurisdiciton concerned.
The Union first contends that, because the local management
negotiating team did not allege a compelling need for the Agency
regulation to bar negotiation on the provision, to do so on appeal
violates section 7114(b)(2) of the Statute. The Union further asserts
that the Agency has failed to demonstrate a compelling need for its
regulation. Finally, the Union states that the proposal does not affect
the legal treatment of suspensions as appealable to the adjutant
general.
B. Analysis and Conclusion
Contrary to the Union's claim, the provision expressly includes
suspensions of 30 days or less among those matters defined as "formal
disciplinary actions." As a result, suspensions for 30 days or less
would be covered by the parties' negotiated grievance procedure. By
including suspensions within the coverage of the negotiated grievance
procedure this proposal is inconsistent with the National Guard
Technicians Act of 1968, as amended, 32 U.S.C. Section 709 (the
Technicians Act). /2/
Specifically, section 709(e) of the Technicians Act expressly
reserves to the adjutant general of the jurisdiction concerned the right
to take the actions enumerated in subsection (5), including suspensions.
In Association of Civilian Technicians, Pennsylvania State Council and
Pennsylvania Army and Air National Guard, 14 FLRA 38 (1984) (Proposal 5)
the Authority held that inclusion in a negotiated grievance and
arbitration procedure of a grievance concerning an adjutant general's
decision to take any of the actions enumerated in section 709(e) is
precluded by that provision of the Technicians Act. Because Provision 1
in this case includes suspensions within the coverage of the parties'
negotiated grievance procedure, the provision conflicts with section
709(e) of the Technicians Act. Consequently, based on the reasoning and
cases cited in Pennsylvania Army and Air National Guard, the provision
is outside the duty to bargain. In view of our dispostion of this
provision, it is unnecessary to address the parties' additional
agruments concerning the provision's negotiability. /3/
III. Provision 2
ARTICLE XVI
Section 5. ADVERSE ACTIONS: Definition: Adverse actions are
disciplinary and non-disciplinary removals, suspensions, furloughs
without pay, and reductions in rank or pay.
A. Positions of the Parties
The Agency contends that the provision conflicts with 32 U.S.C.
Section 709(e) by defining non-disciplinary removals as adverse actions.
Apparently, the Agency believes that the provision would prevent it
from removing a technician from a position, as required by 32 U.S.C.
Section 709(e)(1) and (2), /4/ when the technician fails to meet certain
legal prerequisites for employment as specified in those sections of
law.
The Union states that the provision is consistent with law as well as
with an Agency regulation implementing law.
B. Analysis and Conclusion
Unlike Provision 1 in this case which conflicts with 32 U.S.C.
Section 709(e), no such inconsistency is apparent with respect to this
provision. That is, the mere fact that Provision 2 "mixes" removals
under 32 U.S.C. Section 709(e)(1) and (2) with adverse action removals
covered by Section 709(e)(4), as the Agency alleges, provides no support
for the contention that the provision conflicts with applicable law. In
fact, the effect of this provision is to exclude from coverage of the
negotiated grievance procedure non-disciplinary removals. Thus, whether
a Technician is removed for disciplinary or non-disciplinary reasons
under section 709(e), the affected employee has only those rights set
out in subsections (e)(5) and (6).
Consequently, we find no conflict between Provision 2 and applicable
law. Therefore, the provision is within the duty of bargain.
IV. Provision 3
ARTICLE XXXIV
Section 2. In the event that the employee and supervisor
cannot agree upon applicable performance standards and critical
elements for an employee or position, the matter shall be referred
to the second line supervisor and through subsequent supervisors
in an attempt to resolve the matter. If the matter cannot be
resolved thru supervisory channels, the SPMO will make the final
decision. /5/
A. Positions of the Parties
"SPMO" refers to the Support Personnel Management Office of the
Agecny. The Agency contends that the provision would require it to
negotiate concerning both the content of performance standards and
positions outside the bargaining unit, and is therefore contrary to the
Statute.
The Union, on the other hand, contends that it is simply trying to
negotiate a procedure for a fair review of performance standards under
section 7106(b)(2) of the Statute. The Union also states that the
provision is not intended to assign duties to anyone outside the
bargaining unit.
B. Analysis
1. Content of Performance Standards
The Authority has consistently held that proposals which
substantively restrict management in its identification of critical
elements of a position and establishment of performance standards are
inconsistent with section 7106(a)(2)(A) and (B) of the Statute as
improper interference with management's rights to direct employees and
assign work. See, for example, National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
(1980), aff'd sub nom. National Treasury Employees Union v. Federal
Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982).
It is equally well established, on the other hand, that there is a
duty to bargain under section 7106(b)(3) on appropriate arrangements for
employees adversely affected by management's exercise of its authoirty
under section 7106(a), that is, in terms of this provision, actions
taken under the performance standards established by management which
adversely affect employees. See, for example, American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 3 FLRA 784, 791-92 (1980) (Proposal 5).
Thus, in the facts of that case, the Authority found that the proposal
in dispute merely established a general, non-quantitative requirement by
which the application of critical elements and performance standards
established by management may subsequently be evaluted in a grievance by
an employee who believes that the application of management's
performance standard has adversely affected him or her. In finding that
proposal to be within the duty to bargain, the Authority specifically
noted that such an arrangement did not affect management's discretion to
determine the content of performance standards, nor did it authorize an
arbitrator to substitute his or her judgment for that of management as
to the content of the standards.
Turning to Provision 3, by its terms it refers to agreement between
employees and management on performance standards and critical elements
for an employee or position. Therefore, it seeks to negotiate
concerning the establishment and content of performance standards and
critical elements, matters which the Authority has held to be within the
sole discretion of management, under section 7106(a)(2)(A) and (B) of
the Statute. Moreover, there is nothing in the language of the
provision substantiating the Union's contention that the provision is
intended to assure that performance standards are fair and equitable.
Such a provision would, in any event, have to be limited to the
application of standards to employees rather than the establishment of
the standards themselves in order to be within the duy to bargain, as
indicated above.
2. Positions Outside the Bargaining Unit
It is well established that proposals are not within the duty bto
bargain if they apply to employees or positions outside the bargaining
unit. See, for example, American Federation of Government Employees,
National Council of Social Security Administration Field Operation,
Office of Field Operations, Baltimore, Maryland, 17 FLRA No. 6 (1985)
(Proposal 5). Here, in agreement with the Agency, we find that the last
sentence of this provision, by assigning a specific responsibility to
the SPMO, applies to employees and positions outside the bargaining
unit. American Federation of State, County, and Municipal Employees,
AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983)
(Proposal 1); and 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 14
(1987) (Provision 6).
C. Conclusion
Based on the reasons and cases cited above, Provision 3 conflicts
with the Agency's right to direct employees and to assign work, under
section 7106(a)(2)(A) and (B) of the Statute. Moreover, the provision
applies to employees or positions outside the bargaining unit.
Therefore, the provision is outside the Agency's duty to bargain.
V. Provision 4
ARTICLE XXXIV
Section 7. In the event a determination to withhold a within
grade increase is made by the supervisor the approval must be
obtained by the second level supervisor. A minimum notice period
of 30 days must be provided the employee. The employee must be
informed of the requirements that must be met to be considered at
a satisfactory level of competence, and will be provided 90
calendar days within which to improve performance and receive a
redetermination of satisfactory level of competence. If employee
has improved to a satisfactory level the within grade increase
will be retroactive to the original due date.
A. Position of the Parties
The Agency contends that the provision is nonnegotiable because it
conflicts with certain requirements in the Federal Personnel Manual
(FPM) and with the Back Pay Act (5 U.S.C. Section 5596).
The Union contends that the provision complies with Government-wide
regulations and concerns a condition of employment under section
7106(b)(2) and (3) of the Statute. The Union also contends that because
the provision concerns within-grade increases, the Back Pay Act does not
apply at all.
B. Analysis
Under Office of Personnel Management (OPM) regulations, one of the
conditions which must be met for an employee to receive a within-grade
increase (WGI) is a determination by the employing agency that the
employee's performance is at an acceptable level of competence. When a
WGI has been withheld, an agency may, at any time thereafter, grant the
WGI when it determines that the employee has demonstrated sustained
performance at an acceptable level of competence. See 5 C.F.R. Section
531.411, "Continuing evaluation after withholding a within-grade
increase." Of Articular importance in terms of the negotiability of this
provision, 5 C.F.R. Section 531.412(b), "Effective date of a
within-grade increase," provides that "when an acceptable level of
competence is achieved at some time after a negative determination, the
effective date is the first day of the first pay period after the
acceptable determination is made." These regulations have previously
been found to be Government-wide in scope. American Federation of
Government Employees, AFL-CIO, Local 1858 and U.S. Army Ordnance Missile
and Munitions Center and School (USAOMMCS) Redstone Arsenal, Alabama, 26
FLRA No. 12 (1987).
It appears from the record that the parties' dispute concerns the
provision's last sentence. The Agency contends that, in a circumstance
where an employee's performance has improved to an acceptable level of
competence, the provision would require a WGI to be granted
retroactively to the date that an employee would have received such an
increase, but for the Agency's initial determination to withhold the
increase because the employee's performance was unacceptable. Under the
Agency's interpretation, the last sentence of the provision conflicts
with the requirement of 5 C.F.R. Section 531.412(b) that the effective
date of the WGI be the first day of the first pay period after the
acceptable level of competence determination is made, and not any prior
date.
The Union, on the other hand, contends that the provision's last
sentence has been either misunderstood or misinterpreted by the Agency.
It asserts that the element of retroactivity referred to by the
provision does not concern the Agency's decision to withhold an
employee's WGI. Rather, it applies only when the employee has been
given notice that performance must improve or the WGI will be withheld.
Thus, under its interpretation, the last sentence of the provision
refers to the 90-day period during which employees are given the
opportunity to demonstrate acceptable performance under 5 U.S.C. Section
4302(b)(6) /6/ prior to any decision by the Agency to withhold a WGI.
Hence, according to the Union, the meaning of the disputed sentence is
that if the employee brings his performance up to an acceptable level
during this 90-day period, the WGI will be given effect as of the date
the increase was origninally due.
We find that the Union's interpretation is at variance with the plain
language of the provision. Under the Union's interpretation, the last
sentence of the provision refers to a period prior to any decision by
the Agency to withhold an employee's WGI. If this were the case, the
word "retroactive" in the provision, would be without meaning or effect.
On the assumption that the language in a provision is intended to have
some effect, we conclude, in agreement with the Agency, that the last
sentence of the provision conflicts with 5 C.F.R. Section 531.412 (b).
As to the Agency's further contention that the provision conflicts
with the Back Pay Act, 5 U.S.C. Section 5596, we find that provision of
law inapplicable to this dispute. The Back Pay Act concerns employees
affected by unjustified or unwarranted personnel actions. On the other
hand, Provision 4, on its face, does not address either unjustified or
unwarranted decisions to withhold periodic step increases.
With respect to the Union's view that the provision is negotiable
under either section 7106(b)(2) or (3) of the Statute, we have held that
section 7106(b)(2) and (3) applies only to management's exercise of
rights reserved to it by the Statute. Because the provision violates a
Government-wide regulation, it cannot be either a negotiable procedure
to be followed by management in exercising a reserved right or an
appropriate arrangement for employeees adversely affected by the
exercise of a management right. American Federation of Government
Employees, Local 1546 and Department of the Army, Sharpe Army, Lathrop,
California, 25 FLRA No. 78 (1987).
C. Conclusion
For the reasons stated, the last sentence of Provision 4 conflicts
with a Government-wide regulation and is outside the duty to bargain
under section 7117(a)(1) of the Statute. The first three sentences of
the provision, however, are not alleged by the Agency to be outside the
duty to bargain, nor do they otherwise appear to conflict with the
Statute or other laws or Government-wide regulations. Therefore, the
first three sentences of the provision are within the duty of bargain.
VI. Provision 5
ARTICLE XXXV
TECHNICIAN/MILITARY COMPATIBILITY: Technicians, as a condition
of employment, must maintain membership in the National Guard.
The following will apply to all technicians in the areas of
compatibility and assignment. /7/
1. If a technician is made incompatible for any reason the
Support Personnel Management Office will work with the Military
Personnel Office to try and reassign the technician into a
compatible position
2. If it becomes apparent that a technician was made
incompatible for the purpose of removing him from his civilian
position the Support Personnel Management Office will initiate an
investigation and seek corrective action as may be appropriate.
3. Technicians who are being separated for incompatibility
have the right to informally appeal to the Adjutant General, and
have their appeal considered prior to separation from technician
employment.
A. Positions of the Parties
The Agency contends that, because this provision would require
bargaining on military matters, it conflicts with law and an Agency-wide
regulation for which there is a compelling need.
The Union contends that the provision concerns only procedures which
will assist employees in fulfilling the requirements of law. It also
contends that the provision does not interfere with any of the Agency's
management rights, and, therefore, is fully negotiable under section
7106(b)(2) and (3) of the Statute.
B. Analysis and Conclusion
Under 32 U.S.C. Section 709(b) and (e)(1), /8/ the employees
represented by the Union in this case must, as a condition of their
civilian employment, become and remain military members of the National
Guard and maintain the military grade specified for their technician
positions. Based upon these provisions of law, the Agency promulgated
Technician Personnel Regulation (TPR) 300 (302.7, paragraph 7-8) which,
among other things, describes the manner in which civilian technicians
will maintain military membership in the National Guard, including
compatible civilian and military job designations.
The Authority has previously determined that, where a union's
proposal concerns a matter in connection with the military aspects of
technician employment, it concerns a subject which is not a "condition
of employment" within the meaning of section 7103(a)(14) and,
accordingly, is outside the duty to bargain under the Statute. See
Association of Civilian Technicians, Pennsylvania State Council and the
Adjutant General, Department of Military Affairs, Commonwealth of
Pennsylvania, 3 FLRA 50 (1980). All three sections of this provision
clearly concern military aspects of technician employment and are,
therefore, outside the Agency's duty to bargain. See also National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, Topeka, Kansas, 15 FLRA 52 (1984).
As we conclude that the entire provision is nonnegotiable because it
concerns a matter in connection with the military aspects of technician
employment, it is unnecessary to address the parties' contentions with
respect to a compelling need for the Agency regulation at issue. We
also note that because it has not been alleged, nor has the Authority
found, that the provision conflicts with any of management's substantive
rights under the Statute, it is also unnecessary to address the Union's
contention that the provision is negotiable under section 7106(b) (2) or
(3).
VII. Order
The petition for review relating to Provisions 1, 3 the last sentence
of Provision 4, and Provision 5 is dismissed. The Agency must rescind
its disapproval of Provision 2 and the first three sentences of
Provision 4 which were bargained on and agreed to by the parties at the
local level. /9/
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Union withdrew its appeal on two additional provisions
because the Agency withdrew its allegation of nonnegotiability
concerning them. Since the dispute on these two provisions has been
rendered moot, they will not be considered further.
(2) The relevant portions of the Technicians Act are set out in the
Appendix to this decision.
(3) Additionally, the fact that the parties may have negotiated an
identical provision in a previous contract, as asserted by the Union at
n. 3 of its Reply Brief, has no bearing on our finding that this
provision is nonnegotiable because it is inconsistent with law. See,
for example, Maritime Metal Trades Council and Panama Canal Commission,
17 FLRA 890, 891 (1985).
(4) The pertinent provisions of the Technicians Act are set out in
the Appendix to this decision.
(5) In its Reply Brief, the Union indicates that a change in the
wording of the last sentence of this provision was made by the parties
at the local level in this case. However, this change is not a part of
the dispute before us and will not be considered.
(6) 5 U.S.C. 4302(b)(6) is set out in the Appendix to this decision.
(7) As with Provision 3, the Union indicated in its Reply Brief that
a change in the wording of this part of the provision was made by the
parties at the local level. However, this change is not a part of the
dispute before us and will not be considered.
(8) See the Appendix to this decision.
(9) In deciding that Provision 2 and the first three sentences of
Provision 4 are within the duty to bargain, we make no judgment as to
their merits.
APPENDIX
The pertinent parts of 32 US.C. 709 provide as follows:
Section 709. Technicians: employment, use status
. . . .
(b) Except as prescribed by the Secretary concerned, a technician
employed under subsection (a) shall, while so employed, be a member of
the National Guard and hold the military grade specified by the
Secretary concerned for that position.
. . . .
(e) Notwithstanding any other provision of law and under regulations
prescribed by the Secretary concerned-
(1) a technician who is employed in a position in which
National Guard membership is required as a condition of employment
and who is separated from the National Guard or ceases to hold the
military grade specified for his position by the Secretary
concerned shall be promptly separated from his technician
employment by the adjutant general of the jurisdiction concerned;
(2) a technician who is employed in a position in which
National Guard membership is required as a condition of employment
and who fails to meet the military security standards established
by the Secretary concerned for a member of a reserve component of
the Armed Forces under his jursidiction may be separated from his
employment as a technician and concurrently discharged from the
National Guard by the adjutant general of the jurisdiction
concerned;
(3) a technician may, at any time, be separated from his
technician employment for cause by the adjutant general of the
jurisdiction concerned;
(4) a reduction in force, removal, or an adverse action
involving discharge from technician employment, suspension,
furlough without pay, or reduction in rank or compensation shall
be accomplished by the adjutant general of the jurisdiction
concerned;
(5) a right of appeal which may exist with respect to clause
(1), (2), (3), or (4) shall not extend beyond the adjutant general
of the jurisdiction concerned; and
(6) a technician shall be notified in writing of the
termination of his employment as a technician and such
notification shall be given at least thirty days prior to the
termination date of such employment.
5 U.S.C. Section 4302, insofar as is relevant here, provides:
Section 4302. Establishment of performance appraisal systems
. . . .
(b) Under regulations which the Office of Personnel Management shall
prescribe, each performance appraisal system shall provide for-
. . . .
(6) reassigning, reducing in grade, or removing employees who
continue to have unacceptable performance but only after an
opportunity to demonstrate acceptable performance.
28 FLRA NO. 80
NTEU and FDIC, Washington, D.C., Case No. 0-NG-446 (Decided August
21, 1987)
STATUTE
7106(a)(1)
7117(a)(2); 7117(b)
SUBJECT MATTER INDEX ENTRIES
COMPELLING NEED (7117(a)(2))
CRITERIA AND STANDARDS
ESSENTIAL TO ACCOMPLISHMENT OF AGENCY'S MISSION
COMPENSATION SYSTEM
WAGES/SALARY RATES/FRINGE BENEFITS
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
DISCRETION TO ACT VS. "SPECIFICALLY PROVIDED FOR"
FEDERAL DEPOSIT INSURANCE CORPORATION
NON-APPROPRIATED-FUND EMPLOYEES
GOVERNMENT CORPORATION
FEDERAL DEPOSIT INSURANCE CORPORATION
COMPENSATION
DIGEST NOTES
This negotiability case, involving a single proposal, was remanded to
the Authority from the United States Court of Appeals for the District
of Columbia Circuit. On remand, the proposal, which would enable the
union to negotiate over the wages of bargaining-unit employees of the
Federal Deposit Insurance Corporation, was ruled negotiable.
In its original decision, the Authority had noted that FDIC is a
government corporation, not subject to the pay and allowance provisions
of Chapter 51 of Title 5 of the United States Code. The Authority had
ruled the provision nonnegotiable nonetheless, in agreement with FDIC's
argument that there was a compelling need for its regulation barring
negotiation over wages.
The District of Columbia Circuit reversed the Authority's ruling that
FDIC's regulation barred negotiation over the proposal, and remanded the
case to the Authority. On remand, FDIC raised a new compelling-need
argument against the proposal. The Authority, in agreement with the
union, ruled that the compelling-need argument was not before the
Authority on remand. As the agency's compelling-need and budgetary
arguments against the proposal had failed, the proposal was within the
duty to bargain. (majority opinion)
Case No. 0-NG-446 21 FLRA No. 36
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 207
Union
and
FEDERAL DEPOSIT INSURANCE CORPORATION, WASHINGTON, D.C.
Agency
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Federal Labor Relations Authority (Authority)
pursuant to a remand from the United States Court of Appeals for the
District of Columbia Circuit. The questions before us is whether a
proposal concerning wages is negotiable under the Federal Service
Labor-Management Relations Statute (the Statute). Based on the
following reasons we find the proposal is negotiable. /1/
II. The Proposal
Article 59 - Salary
Section 1
The salary structure, that is the grades and steps of the
schedule, being used by FDIC will be maintained. Hereafter, all
employees will have their current salaries adjusted for the
cost-of-living/comparability factor. The adjustment will be equal
to the statistical adjustment recommended to the President by the
Pay Advisory Council. (After October 1980 the adjustment factor
developed by the Council will be modified to account for the
different comparability positions between FDIC and those employees
under the General Schedule. Beginning in January 1981 the parties
will meet to seek agreement on the modification formula.) This
adjustment will become effective the beginning of the first pay
period following the announcement of it by the council or other
appropriate sources. It will be unaffected by Presidential or
Congressional actions.
Section 2
NTEU agrees to establish with the EMPLOYER a productivity
committee that will monitor the impact of the new salary
adjustment system and seek reasonable ways to increase the
productivity of the EMPLOYER, e.g., decrease employee turnover,
remove work obstacles, improve upon available machinery and
procedures, raise employee morale, etc.
III. Background
In earlier decisions in this case the Authority found that this
proposal conflicted with an agency regulation for which a compelling
need exists. National Treasury Employees Union, Chapter 207 and Federal
Deposit Insurance Corporation, Washington, D.C., 14 FLRA 598 (1984);
National Treasury Employees Union, Chapter 207 and Federal Deposit
Insurance Corporation, Washington, D.C., 21 FLRA No. 36 (1986). On
appeal, the court reversed the Authority as to that holding and remanded
the case. The court also noted that in further proceedings the
Authority should be mindful of the bearing which the question of the
negotiability of pay and fringe benefits had on the case. National
Treasury Employees Union v. FLRA, No. 84-1286 (D.C. Cir. Mar. 20, 1987).
The Agency has requested that we consider a statement of position
which it submitted on the issue of the proposal's conflict with an
agency regulation for which a compelling need exists. The Union opposes
the Agency's request contending that, under the remand, the compelling
need question is not before the Authority.
The court's decision reversed the Authority's previous decisions in
this case which had been based on a finding that a compelling need
existed for the Agency's regulation. In so doing the court rejected the
assertion that a uniform method of setting salaries was essential to the
efficient accomplishment of the Agency's mission.
IV. Analysis and Conclusions
We accept as the law of the case the court's opinion that the
Agency's regulation does not bar negotiation of the proposal. For the
reasons found by the court, we find that the Agency has 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 regard to this particular compelling need
criterion the Agency's supplemental submission presents nothing new; it
merely reasserts the alleged essentiality of a uniform method of setting
pay.
However, in its supplemental submission the Agency also asserts a new
argument as to compelling need. It contends that its regulation
establishing a uniform pay system also meets the criterion set forth at
section 2424.11(b) of the Authority's regulations. /2/ This argument
was not raised as a bar to negotiation of the proposal prior to the most
recent remand to the Authority. We, therefore, grant the Union's
request that we not consider the Agency's supplemental submission to the
extent that it asserts section 2424.11(b) as a bar to negotiation of the
proposal. See National Treasury Employees Union and Internal Revenue
Service, 27 FLRA No. 25 (1987), petition for review filed sub nom.
Internal Revenue Service v. FLRA, (D.C. Cir. July 28, 1987).
We next consider the larger question of the extent to which the
subject of wages is within the duty to bargain and the bearing of that
issue on the negotiability of this proposal. Initially, we note that
the Agency has never asserted that this proposal is nonnegotiable purely
on the ground that it addresses the subject of wages. In any event, 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), /3/ 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 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.
As noted in our original decision in this case, /4/ the Agency is a
government corporation and is not subject to the pay and allowance
provisions of Chapter 51 of title 5 of the U.S. Code. Rather, such
matters are within the discretion of the Agency. Its contention that
the proposal interfered with its right under section 7106(a)(1) to
determine its budget was rejected in 21 FLRA No. 36 and there is no
reason to reconsider that disposition here. The Agency has asserted no
other ground for finding that the proposal is nonnegotiable, nor is any
apparent. In view of the rejection of its compelling need and budget
arguments and in the absence of any other basis for finding the proposal
nonnegotiable, we find that the proposal is within the duty to bargain.
V. Order
The Agency shall upon request, or as otherwise agreed to by the
parties, bargain concerning the proposal. /5/
Issued, Washington, D.C., August 21, 1987
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I. Introduction
In its decision remanding this case to the Authority, the United
States Court of Appeals for the District of Columbia Circuit observed
that, "beyond the facts of this case . . . there lies a larger issue.
There is some question as to whether the Federal government has any duty
to bargain over wages and fringe benefits . . . . We trust . . . that
the FLRA will proceed in this case mindful of the bearing upon it of the
larger issue subjudice." Memorandum Opinion at page 4.
In response, my colleagues find that this case is controlled by the
decision 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 agree that Eglin Air Force Base is applicable to
this case as a general proposition, and I expressly reassert the views
espoused in my dissenting opinion therein. I also think it necessary
and appropriate to make some further observations concerning the
negotiability of wage and money-related fringe benefit proposals as they
relate to the Federal Deposit Insurance Corporation (FDIC).
II. The "Compelling Need" Question
I do not interpret the Court's decision as foreclosing further
consideration of this issue by the Authority on remand. My colleagues
accept as law of the case the Court's finding that the FDIC regulation
establishing a uniform salary structure, including the calculation of
cost-of-living adjustments, has not been shown to be "essential to the
accomplishment of its mission in a manner which is consistent with the
requirements of an effective and efficient government." Majority Opinion
at 3.
I leave for another day any attempt at an in-depth articulation of
the standards to be applied in making a "compelling need" determination.
I note, however, that in enacting section 7117(b) of the Statute,
Congress must have foreseen certain agency regulations as falling within
its confines. While the legislative history of that provision amply
supports a conclusion that the provision should be narrowly construed, I
am concerned that the Authority and the Courts not leave it bereft of
meaning. Furthermore, resolution of the legal question of whether or
not a given regulation or regulatory scheme meets the criteria
established in 5 C.F.R. Section 2424.11 will frequently turn on the
totality of the factual circumstances surrounding the regulation's
promulgation and administration. Such matters are often within the
knowledge of the parties and not this Agency. As in all negotiability
cases decided under section 7117(c) of the Statute, those factual
circumstances must be established by the parties themselves. With all
due respect to the Court of Appeals, if the record in this case
permitted thorough review of the effects of the establishment of a
uniform COLA on FDIC employees in terms of morale, recruitment, employee
mobility, retention, economic efficacy or other legitimate personnel
management concerns, an enlarged discussion could be presented in
support of a compelling need for the regulations. Inasmuch as the
record does not permit me to make those findings, I will also turn to
the "larger issue" suggested by the Court.
III. Negotiability of Wages in the Absence of Specific
Legislative Authorization
In my opinion in Eglin Air Force Base and its progeny, I have
consistently stated that absent a clear expression of Congressional
intent to the contrary, wages and monetary fringe benefits of Federal
employees are not a proper subject of collective bargaining under the
Statute. I find no such statement in this case. Rather I find the FDIC
model a particularly compelling situation for requiring specific advance
approval of such negotiations by the Congress.
As a "mixed-ownership Government corporation," (31 U.S.C. Section
9101(2)(c)), FDIC personnel policies and procedures are governed by many
of the provisions of title 5 of the U. S. Code concerning Federal
employees (hiring, firing, reduction-in-force, retirement, etc). FDIC
is not, however, subject to the classification provisions codified at 5
U.S.C. Section 5101, et seq., or the General Schedule Pay Rates. 5
U.S.C. Section 5331. Nonetheless, through the resolutions of its Board
of Directors which have been found to constitute agency-wide rules or
regulations, FDIC has adopted the General Schedule salary system, as now
modified by the subsequent adoption of regional cost differentials, for
the vast majority of its employees. The FDIC has applied this method of
compensation since its inception. Above and beyond the rational reasons
the Agency may have for adopting this system to promote uniformity,
equality, and competitiveness of employee salaries both within the
Agency and vis-a-vis the employees' counterparts in other Federal
agencies, its adoption also serves to further the apparent Congressional
policy of treating FDIC employees like other Federal employees, as
exemplified by their inclusion in many of the provisions of title 5.
The fact that Congress did not itself subject FDIC employment
compensation to the General Schedule does not, in my view, warrant a
finding that it in any way intended these matters to be appropriate for
collective bargaining. Congress provided the Corporation with the
flexibility, in appropriate circumstances, to vary salary structures as
it might find necessary to recruit and retain highly skilled employees
in very technical occupations (bank examiners, etc.). However, the
broad inclusion of FDIC employees under many or most title 5 provisions,
demonstrates a general intent that these persons' conditions of
employment be similar to that of their competitive and excepted service
General Schedule counterparts. In my view, the "Federal character" of
FDIC employees thus further negates any inference of negotiability of
wages and monetary fringe benefits being drawn from the Congressional
silence.
Certain elements of public sector employment have long been regarded
as unique and decidedly different from those in the private sector.
Numerous legislatively-created rights not applied to all
employer-employee relationships attach with public employment. With it
also attach legislatively and administratively-created restraints on
certain terms and conditions of employment.
Legislative bodies at various levels of government have frequently
elected to temper these restraints by providing for collective
bargaining concerning wages and money-related fringe benefits. When
they have done so, however, it has almost universally been provided for
in an affirmative manner. See, for example, Section 10 of Pub. L. No.
91-375, Aug. 12, 1970, 84 Stat. 787 (postal service labor agreements);
New York Public Employees' Fair Employment Act, Section 201.4 (salaries
and wages are terms of employment subject to collective negotiations).
With certain limited exceptions Congress has not so provided Federal
employees with an affirmative statement of negotiability of wages and
monetary fringe benefits. Absent such an affirmation, I believe wage
bargaining was not intended by Congress and as a matter of public policy
should not be sanctioned without specific Congressional consent.
Accordingly, I respectfully dissent.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) Section 2424.11(b) provides:
(b) The rule or regulation is necessary to insure the
maintenance of basic merit principles.
(3) Eglin was initially appealed to the U.S. Court of Appeals for the
Eleventh Circuit. Subsequently, the appeal was withdrawn; however,
appeals of other cases which rely on Eglin are still pending before
various courts.
(4) 14 FLRA at 610.
(5) In finding this proposal within the duty to bargain, we make no
judgment as to its merits.
28 FLRA NO. 79
AFSCME, Local 2027, and ACTION, Case No. 0-NG-1385 (Decided August
21, 1987)
STATUTE
7105(a)(2)(E)
7106(a)(2)(A)
7114(a)(1)
7117
SUBJECT MATTER INDEX ENTRIES
FEDERAL PERSONNEL MANUAL
BOOK 620, S5-3(a)(2) and (3)
HOURS OF WORK
ALTERNATE WORK SCHEDULES
COMPRESSED WORK SCHEDULES (LESS THAN FIVE WORK DAYS/WEEK)
5-4-9 SCHEDULES
UNITED STATES CODE
5 U.S.C. 6127(b)
5 U.S.C. 6131(a)-(c)
DIGEST NOTES
The Authority considered two proposals dealing with alternate work
schedules in this negotiability appeal.
A nonnegotiable proposal would have applied its provisions regarding
the institution and implementation of alternate work schedules to
non-unit as well as bargaining-unit employees. As such, said the
Authority, the proposal was inconsistent with the Work Schedules Act (5
U.S.C. 6120 et. seq.), and therefore outside the duty to bargain. The
agency's other arguments against the proposal -- that it conflicted with
section 7106 rights and with government-wide regulations -- were
inapplicable, as alternate work schedules are fully negotiable within
the limits set by the Work Schedules Act itself. The Authority noted
that if the proposal were revised to limit its scope to bargaining-unit
employees, it would be negotiable. (proposal 2).
The remaining proposal concerned administration of the work-schedule
program. The Authority ruled that this proposal was not properly before
it, under section 7117. (proposal 3)
Case No. 0-NG-1385
AFSCME, LOCAL 2027
Union
and
ACTION
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 presents issues
concerning the negotiability of two proposals. /*/
II. Proposals 2 and 3
Proposal 2
Item 2 - Paragraph 3. (Responsibilities), Section f. (1)
(Employees) and Paragraph 6 (Criteria for Maintaining or
Implementing AWS)
Establish schedules in accordance with criteria for
implementation (see paragraph 6). In this regard, schedules and
changes will be acceptable to and compatible with other employee's
schedules in the work unit.
Based upon the criteria established for coverage, each work
unit will pre-schedule coverage by having employees voluntarily
work the periods within the Public Service Band and outside the
core time requirement. If a work unit cannot arrive at a
voluntary schedule, the supervisor will request from employees
their preferences for working these uncovered periods. The
supervisor will establish a schedule, based upon these
preferences, that will equitably alternate coverage amongst the
employees.
Proposal 3
Item 3 - Paragraph 8.A.8.(a) Credit Hours
When work has been assigned to an employee, the employee has a
right to elect to work credit hours for the purpose of varying the
length of a subsequent workday, work week, or pay period subject
to their supervisor's approval or disapproval which must be based
on workload needs and cannot be arbitrary or capricious. (Only
the underlined portions are in dispute.)
A. Position of the Parties
The Agency claims that Proposal 2 violates Government-wide
regulations, specifically, Federal Personnel Manual (FPM) Book 620,
S5-3(a)(2) and (3) and General Accounting Office (GAO) Manual Title 6,
Section 17-2, both requiring adequate surveillance to assure proper and
accurate time accounting. The Agency also claims that the proposal
removes from management the right to assign work and direct employees
under section 7106(a) of the Statute. In addition, the Agency argues
that under section 7114(a)(1) the Union cannot bargain over conditions
of employment of employees who are not part of the bargaining unit. The
Agency also claims that the use of the words "acceptable", "compatible"
and "equitable alternate coverage" would subject management's right to
assign work and direct employees to arbitral review.
As to Proposal 3 the Agency claims that the phrase "cannot be
arbitrary or capricious" would subject to arbitral review management's
rights under section 7106(a)(2)(A) and (B) to assign work and direct
employees, that is, to determine when assigned work will be performed.
The Union argues that the established procedure of signing in and out
provides an acceptable reporting method which complies with
Government-wide regulations. The Union also contends that the parties
had agreed that flextime provisions would apply to all employees, not
just to bargaining unit employees. Further, the Union argues that the
use of the terms "acceptable" "compatible" and "equitable" in Proposal 2
merely outline the process by which the coverage shall be achieved.
Thus, the Union argues that Proposal 2 constitutes a procedure under
section 7106(b)(2) which does not infringe on management's rights.
With respect to Proposal 3 the Union argues, in essence, that the
proposal requires a meaningful explanation for disapproving a request to
earn credit hours.
B. Analysis and Conclusion
In American Federation of Government Employees, Local 1934 and
Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA No.
107 (1986) we held that Congress intended that the use of alternative
work schedules was to be fully negotiable, subject only to the
provisions of the Flexible and Compressed Work Schedules Act of 1982
itself or with the laws superseding the 1982 Act. We also held that (1)
under 5 U.S.C. Section 6131(a)-(c), an agency may object to a proposed
alternate work schedule when it can establish that the proposal will
have an adverse agency impact; and (2) if the parties needed assistance
in resolving disputes concerning adverse impact the dispute must be
presented to the Federal Service Impasses Panel in accordance with 5
U.S.C. Section 6131(c)(2) and part 2472 of the Panel's Rules and
Regulations. See also U.S. Department of Energy, Washington, D.C. and
National Treasury Employees Union, 26 FLRA No. 66 (1987).
Further, in National Association of Government Employees, Local
R12-167 and Office of the Adjutant General, State of California, 27 FLRA
No. 47 (1987) we concluded, after reviewing the legislative history of
the Act, that the collective bargaining process under the Act was
intended to include "the institution, implementation, administration and
termination of alternative work schedules(.)" Alternate work schedules
are fully negotiable, within the limits set by the Act, therefore there
are no issues pertaining to the negotiability of those schedules under
section 7117 of the Statute which relate to asserted conflicts with
provisions of the Statute. Consequently, the Agency's contentions in
this case as to section 7106 of the Statute and Government-wide
Regulations are not properly before us.
As noted in Lowry AFB, however, a limited range of issues bearing on
the negotiation of alternate work schedule proposals remain which the
Authority may process under the procedures of section 7117. One such
issue is whether a proposed work schedule conflicts with the Work
Schedules Act itself or with other laws superseding the 1982 Act.
In this respect, in Office of the Adjutant General, State of
California, we held that to the extent that a proposed flexible and
compressed work schedule was intended to apply to nonbargaining unit
employees it was inconsistent with the Work Schedules Act and therefore
nonnegotiable. In reaching this conclusion, we found that the terms
"collective bargaining," "collective bargaining agreement," and
"exclusive representative" had the same meaning under the Work Schedules
Act as under the Statute and were intended to define an agency's duty to
bargain as extending only to the conditions of employment of bargaining
unit employees. We also noted this conclusion was supported by the fact
that the Work Schedules Act provides separately in 5 U.S.C. Section
6127(b)(1) for nonunit employees to choose to participate in an
alternate work schedule.
Since the Union in this case specified that Proposal 2 was intended
to include bargaining and nonbargaining unit employees, it is, based on
reasons more fully explained in Office of the Adjutant General, State of
California, inconsistent with the Work Schedules Act itself and
therefore, nonnegotiable. However, if the Union were to revise the
proposal to specifically pertain only to bargaining unit employees, it
would be negotiable because it relates to the institution and
implementation of alternative work schedules. Similarly, Proposal 3
concerns administration of the program, and is not properly before us
under section 7117 of the Statute.
III. Order
The Petition for Review is dismissed.
Issued, Washington, D.C., August 21, 1987
Jerry L.Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Agency withdrew its allegation of nonnegotiability as to a
third proposal, Proposal 1. Thus, Proposal 1 is no longer in dispute
and will not be considered further.
28 FLRA NO. 78
Western Division Naval Facilities Engineering Command, San Bruno,
Calif., and AFGE, Interdepartmental Local 3723, Case No. 8-CA-70163
(Decided August 19, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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 ADDRESS OF UNIT EMPLOYEES
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
INFORMATION
PROVIDE TO UNION
UNITED STATES CODE
5 U.S.C. 552a (PRIVACY ACT)
DIGEST NOTES
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. 8-CA-70163
WESTERN DIVISION NAVAL FACILITIES ENGINEERING COMMAND SAN BRUNO,
CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL
3723, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
upon a stipulation entered into by the Respondent, the Charging Party
(the Union) and the General Counsel. The issue is whether the
Respondent violated section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (the Statute) by refusing to
provide the Union, the exclusive representative of a unit of the
Respondent's employees, with the names and home addresses of those
employees as requested by the Union.
II. Facts
The Union is the exclusive representative of a unit of the
Respondent's employees. By a letter dated November 4, 1986, the Union
requested that the Respondent provide it with the names and home
addresses of the unit employees. By letter dated November 19, 1986, the
Respondent denied the request. The parties 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.
III. Positions of the Parties
The Respondent contends that release of the home addresses of
employees is prohibited by the Privacy Act and that the information is
not relevant or necessary for the Union to carry out its
representational duties. /*/ The Respondent disagrees with the
Authority's Decision on Remand 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,
86-2579 (8th Cir. Dec. 23, 1986), and asserts that the Authority erred
in that decision.
The General Counsel contends that the Authority's Decision on Remand
in Farmers Home is controlling in this case. Consequently, the General
Counsel argues, the Respondent's failure to furnish the requested names
and home addresses constitutes a failure to comply with section
7114(b)(4) and a violation of section 7116(a)(1), (5) and (8) of the
Statute.
IV. Analysis and Conclusion
In our Decision and Order on Remand in Farmers Home, we concluded
that the release of names and home addresses of bargaining unit
employees to the exclusive representatives of those employees in 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). We also determined that the release of the
information is generally required without regard to whether alternative
means of communication are available.
Based on our Decision on Remand in Farmers Home, we reject the
Respondent's assertions in this case. See also Department of the Navy,
Naval Communications Station, Stockton, Stockton, California, 28 FLRA
No. 5 (1987). We find that the Respondent was required to provide the
Union with the names and home addresses of the bargaining unit employees
under section 7114(b)(4). Accordingly, we conclude that the
Respondent's refusal to provide the Union with the requested information
violated section 7116(a)(1), (5) and (8) of the Statute.
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 Western Division Naval Facilities Engineering Command, San
Bruno, California shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of American Federation of
Government Employees, Interdepartmental Local 3723, AFL-CIO, the
exclusive representative of a bargaining unit of its employees, the
names and home addresses of all employees in the unit.
(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,
Interdepartmental Local 3723, AFL-CIO, the exclusive representative of a
bargaining unit of its employees, the names and home addresses of all
employees in the unit.
(b) Post at its facilities where bargaining unit employees
represented by the American Federation of Government Employees,
Interdepartmental Local 3723, AFL-CIO are located copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer of the Western Division, Naval Facilities Engineering
Command, San Bruno, California, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and 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 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., August 19, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Respondent also argues that the Authority ignored Federal
Personnel Manual (FPM) Chapter 294, Appendix C, which assertedly
provides that labor organizations should not be provided with the home
addresses of employees because such disclosure would constitute an
unwarranted invasion of the employees' personal privacy. However,
Appendix C was deleted on March 12, 1985, when Chapter 294 was revised.
The revised Chapter contains no statement similar to that which was
contained in Appendix C and on which the Respondent relies.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the American
Federation of Government Employees, Interdepartmental Local 3723,
AFL-CIO, the exclusive representative of a bargaining unit of our
employees, the names and home addresses of all employees in the unit.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the rights assured them by
the Federal Service Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Interdepartmental Local 3723, AFL-CIO, the exclusive representative of a
bargaining unit of our employees, the names and home addresses of all
employees in the unit.
. . . (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.
28 FLRA NO. 77
HUD and AFGE, Local 3258 (Stutz, Arbitrator), Case No. 0-AR-1356
(Decided August 17, 1987)
STATUTE
7106(a)(2)(A)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
LETTER OF REPRIMAND
PERIOD OF RETENTION REDUCED
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARB:
EXCEEDED HIS AUTHORITY
DECIDED AN ISSUE NOT BEFORE HIM
FRAMING OF ISSUES WAS ERRONEOUS
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(A)
CONTRARY TO PARTIES' AGREEMENT
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARB'S INTERPRETATION OF AGREEMENT
DISAGREEMENT WITH ARB'S REASONING AND CONCLUSIONS
DISCIPLINE OF EMPLOYEES
LETTER OF REPRIMAND
LIMITATIONS ON RETENTION IN OFFICIAL PERSONNEL FOLDERS
DIGEST NOTES
An agency issued a letter of reprimand to an employee for having been
absent for an hour and a half beyond his lunch period, directing that
the letter remain in the employee's personnel file for three years. The
union filed a grievance, contesting only the three-year retention. The
arbitrator determined that the three-year placement constituted unequal
treatment of the grievant, and that it violated the parties' agreement.
He reduced the period during which the letter would remain in the
grievant's personnel file from three years to one.
The agency filed exceptions to the arbitrator's award, arguing that
the award violated management's section 7106(a)(2)(A) right to
discipline employees, and that it was contrary to the parties'
agreement. The agency contended that the arbitrator had been mistaken
in concluding that the period of retention in the personnel file
constituted part of the penalty, as well as the letter of reprimand
itself.
The Authority ruled that the agency had failed to prove the the
arbitrator's award deficient on any statutory ground, citing precedent
that disagreement with an arbitrator's reasoning and conclusions and
with his interpretation of the collective-bargaining agreement do not
constitute grounds for invalidating an award.
Case No. 0-AR-1356
U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
Agency
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 3258
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Michael W. Stutz 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. /*/
II. Background and Arbitrator's Award
The Agency issued a letter of reprimand to the grievant because he
was absent from work for about 1 1/2 hours beyond his lunch break. The
Agency determined that the reprimand should remain in the grievant's
personnel file for 3 years. The Union did not dispute the
appropriateness of the reprimand, but filed a grievance contesting the
period of time that the reprimand should remain in the grievant's
personnel file. The matter was submitted to arbitration.
The parties submitted the following issue to the Arbitrator:
"Whether or not the Employer violated the collective bargaining
agreement and/or the HUD Handbook 752.2 when it placed the July 3, 1986
official letter of reprimand in the grievant's personnel file for a
period of three (3) years?" The Arbitrator determined that the 3-year
reprimand (1) had been imposed with improper reliance on a prior
disciplinary letter which should have been removed from the grievant's
personnel file; and (2) constituted unequal treatment of the grievant.
As his award, the Arbitrator concluded that the Agency had violated the
parties' agreement when it placed the letter of reprimand in the
grievant's personnel file for a period of 3 years, and he reduced to 1
year the length of time the letter of reprimand should remain in the
grievant's personnel file.
III. Discussion
The Agency contends that the Arbitrator's award is contrary to the
parties' agreement and, by requiring the Agency to remove the reprimand
from the grievant's official personnel file after 1 year, violates
management's right to discipline employees under section 7106(a)(2)(A)
of the Statute. According to the Agency, the Arbitrator incorrectly
determined that the penalty was not just the letter of reprimand but
also included the length of time it was to remain in the employee's
file.
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
FOOTNOTES
(*) The Agency also requested a stay of the award when it filed its
exceptions to the award with the Authority on April 23, 1987. Effective
December 31, 1986, the Authority's Regulations were revised to revoke
those portions pertaining to filing of requests for stays of arbitration
awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request
was taken.
28 FLRA NO. 76
Dep't of the Interior, Bureau of Reclamation, Upper Colorado Storage
Project, Salt Lake City, Utah, and IBEW, Local 2159, Case No. 7-CA-60552
(Decided August 17, 1987)
STATUTE
7116(a)(1), (5), (7), (8)
7118
7122(b)
SUBJECT MATTER INDEX ENTRIES
AGENCY ULP (ALLEGED) (7116(a)(8))
7122(b)
ENFORCEMENT AND COMPLIANCE
ARBITRATION AWARDS
TYPE/NATURE OF AWARD FOR WHICH ENFORCEMENT SOUGHT
COMPENSATION
TRAVEL AND PER DIEM
ULP PROCEEDINGS
OFFICIAL TIME
TRAVEL AND PER DIEM
ARBITRATION AWARD
UNFAIR LABOR PRACTICES, REMEDIES FOR AGENCY VIOLATIONS
ARBITRATION
COMPLY WITH ARBITRATION AWARD
DIGEST NOTES
In this unfair labor practice case, the Authority, having found no
prejudicial error, adopted the findings and conclusions of the
administrative law judge, and adopted a modified version of the ALJ's
recommended order.
Granting the General Counsel's motion for summary judgment, the judge
ruled that the agency had violated section 7116(a)(1) and (8) when, in
violation of section 7122(b), the agency had refused to comply with an
arbitrator's award, as modified by the Authority, directing the agency
to reimburse the grievants for travel and per diem expenses incurred in
their roles as union representatives in negotiations.
Case No. 7-CA-60552
DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION UPPER COLORADO RIVER
STORAGE PROJECT, SALT LAKE CITY, UTAH
Respondent
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO LOCAL 2159
Charging Party
DECISION AND ORDER
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, granting the
General Counsel's motion for summary judgment and recommending that the
Respondent be ordered to take appropriate remedial action. The
Respondent filed exceptions to the Judge's decision. The General
Counsel and the Charging Party filed oppositions 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 and
find that no prejudicial error was committed. The rulings are hereby
affirmed. Upon consideration of the Judge's decision, the exceptions,
oppositions and the entire record, we adopt the Judge's findings,
conclusions and recommended order. The recommended order has been
modified for purposes of clarifying the Respondent's obligations.
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 Interior, Bureau of Reclamation, Upper
Colorado River Storage Project, Salt Lake City, Utah, shall:
1. Cease and desist from:
(a) Failing to comply with section 7122(b) of the Statute by failing
and refusing to implement the award of Arbitrator Leo Weiss, dated
October 7, 1985, as modified by the Authority in Bureau of Reclamation,
Upper Colorado Region, Colorado River Storage Project, Power Operations
Office, U.S. Department of the Interior and International Brotherhood of
Electrical Workers, AFL-CIO, Local Union 2159, 21 FLRA No. 58 (1986), in
which it was directed to make the grievants in the matter whole,
consistent with applicable requirements of the Federal Travel
Regulations, for any losses they may have suffered as a result of its
violation of a collective bargaining agreement with the Union.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of the 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) Comply fully with the award of Arbitrator Weiss, dated October
7,1985, as subsequently modified by the Authority, by paying the claims
of the grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, for
necessary travel and per diem expenses incurred in connection with their
attendance at negotiation meetings as Union representatives, which
claims were denied in violation of the collective bargaining agreement
with the Union and which were not established to be inconsistent with
applicable requirements of the Federal Travel Regulations.
(b) Post at its facilities where bargaining unit employees
represented by the International Brotherhood of Electrical Workers,
AFL-CIO, Local 2159 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 of the
Bureau of Reclamation and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and 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 VII, 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., August 17, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to comply with section 7122(b) of the Statute by
failing and refusing to implement the award of Arbitrator Leo Weiss,
dated October 7, 1985, as modified by the Authority in Bureau of
Reclamation, Upper Colorado Region, Colorado River Storage Project,
Power Operations Office, U.S. Department of the Interior and
International Brotherhood of Electrical Workers, AFL-CIO, Local Union
2159, 21 FLRA No. 58 (1986), in which we were directed to make the
grievants whole, consistent with applicable requirements of the Federal
Travel Regulations, for any losses they may have suffered as a result of
our violation of our collective bargaining agreement with the Union.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL comply fully with the award of Arbitrator Weiss dated October
7, 1985, as subsequently modified by the Authority, by paying the claims
of the grievants, Henry Dhieux, Frank Culp and Lanis Reynolds, for
necessary travel and per diem expenses incurred in connection with their
attendance at negotiation meetings as Union representatives, which
claims we denied in violation of our collective bargaining agreement
with the Union and which we have failed to establish are inconsistent
with applicable requirements of the Federal Travel Regulations.
. . . (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 of the Federal Labor Relations Authority, Region VII, whose
address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and
whose telephone number is: (303) 837-5224.
Case No.: 7-CA-60552
DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION, UPPER COLORADO
RIVER STORAGE PROJECT SALT LAKE CITY, UTAH
Respondent
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 2159
Charging Party
Beatrice G. Chester, Esquire For the Respondent
Hornbein, MacDonald and Fattor, P.C.
By: Donald P. MacDonald, Esquire
Susan J. Tyburski, Esquire For the Charging Party
Hazel E.Hanley, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
DECISION
Statement of the Case
This matter, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns the alleged
refusal of Respondent to comply with an arbitration award, as amended by
the Authority, with which Respondent alleges it has fully complied, and
is before me on the cross motions of the parties for summary judgment.
For reasons more fully set forth hereinafter, General Counsel' motion
for summary judgment is granted and Respondent's motion for summary
judgment is denied.
This case was initiated by a charge filed on July 21, 1986 (G.C. Exh.
1(a)) which alleged violations of Sections 16(a) (1), (5), (7) and (8)
of the Statute; and a First Amended Charge, filed on September 29, 1986
(G.C. Exh. 1(b)), which alleged violation of Sections 16(a)(1) and (8)
of the Statute. The Complaint and Notice of Hearing issued on September
30, 1986 (G.C. Exh. 1(c)), alleged violations of Sections 16(a)(1) and
(8) of the Statute and set the hearing for December 11, 1986. On
November 21, 1986, General Counsel filed with the Regional Director of
Region VII a Motion For Summary Judgment. The Regional Director of
Region VII, by Order dated November 21, 1986, pursuant to Section
2423.22(b)(1) transferred General Counsel's motion for summary judgment
to this Office for disposition. The Regional Director's Order was
received by this Office on November 24, 1986, and was duly assigned to
the undersigned. On November 25, 1986, Respondent filed a Motion For
Extension Of Time To Respond To General Counsel's Motion For Summary
Judgment, and on November 25, 1986, the undersigned issued an Order
continuing the hearing, set for December 11, 1986, indefinitely;
granting Respondent until December 15, 1986, time to show cause why
General Counsel's motion for summary judgment should not be granted;
and granting General Counsel and the Charging Party leave to file on, or
before, January 5, 1987, a response to any timely reply by Respondent.
On December 15, 1986, Respondent timely filed a Response To General
Counsel's Motion For Summary Judgment and its Cross-Motion For Summary
Judgment (hereinafter referred to as "Res. Response and Motion"). On
January 2, 1987, General Counsel timely mailed an Opposition To
Cross-Motion For Summary Judgment, received on January 6, 1987, and on
January 5, 1987, Charging Party timely mailed its Reply To The Agency's
Response and Cross-Motion For Summary Judgment, received on January 9,
1987.
UNDISPUTED FACTS
1. The International Brotherhood of Electrical Workers, AFL-CIO,
Local 2159 (hereinafter referred to as the "Union") is the exclusive
representative of Respondent's employees and at all times material,
Respondent and the Union have been parties to a collective bargaining
agreement (G.C. Exh. 2).
2. On October 7, 1985, Arbitrator Leo Weiss issued an Opinion and
Award in Bureau of Reclamation, Upper Colorado Region, Colorado River
Storage Project, Power Operations Office, United States Department of
the Interior (G.C. Exh. 3; copy also attached to Res. Response and
Motion), which involved the grievances of Henry Dhieux, Frank Culp and
Lanis Reynolds, e0ployees who sought payment of travel and per diem
expenses to participate in negotiation meetings as Union representatives
which Respondent had denied. The Arbitration Award provided, in
material part, as follows:
"3 -- The Employer is hereby directed to make the Grievants
whole for any losses they may have suffered as a result of its
breach of Article 1, Section 1.8, of the Basic Agreement." (G.C.
Exh. 3, p.21).
3. On November 8, 1985, Respondent filed with the Authority
Exceptions to the Arbitration Award (G.C. Exh. 4) and a Request for Stay
(G.C. Exh. 5).
4. On January 14, 1986, the Authority granted Respondent's request
for a stay (G.C. Exh. 7).
5. On April 22, 1986, the Authority issued its decision, 21 FLRA No.
58, 21 FLRA 421, denying Respondent's exceptions but modifying the Award
to provide as follows:
"The Employer is hereby directed to make the Grievants whole
for any losses they may have suffered as a result of its breach of
Article 1, Section 1.8 of the Basic Agreement, insofar as
consistent with applicable requirements of the Federal Travel
Regulations." (Underscoring supplied to indicate the language
added to the relevant portion of the Arbitrator's Award by the
Authority's modification).
6. Respondent admits that it had not paid travel and per diem to the
Grievants. (Res. Response and Motion, p. 2).
Discussion and Conclusions
There are no material facts in dispute and, accordingly, disposition
by summary judgment is appropriate as all parties agree, notwithstanding
that the conclusion urged by Respondent is diametrically opposed to the
conclusion urged by General Counsel and the Union.
The language of the Authority modifying the Award, "insofar as
consistent with applicable requirements of the Federal Travel
Regulations" did not qualify or limit compliance to Federal Travel
Regulations except determination that the travel serves the convenience
of the agency or is in the primary interest of the Government and, by
focusing solely on the language of the Authority for its modification of
the Award, /2/ Respondent advances a plausible argument,
" . . . that any travel and per diem payments made under the
contract would have to meet the 'certification' requirement that
the travel is in the 'primary interest' of the Government
. . . Therefore, Respondent must first determine the propriety
of the travel expenses under the FTRs . . . before payment can be
made to Grievants." (Res. Response and Motion, p. 8).
The fallacy of Respondent's argument is that it ignores the central
holding of the Authority in denying Respondent's exceptions. The
adequacy of compliance with an arbitration award must be determined,
inter alia, by whether Respondent's construction of the award is
reasonable, which would depend on whether the construction is consistent
with the entire award. United States Department of the Treasury,
Internal Revenue Service and United States Department of the Treasury,
Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA
No. 4, 25 FLRA 71, 72 (1987). In denying Respondent's exceptions in the
instant case the Authority stated, in part, as follows:
"In its decision in BATF (Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 464 U.S. 89 (1983)), the Supreme Court held that
there was no entitlement to travel and per diem expenses under
section 7131(a) of the Statute, but the decision did not pertain
to circumstances where, as here, an agency was found to have
negotiated an agreement provision requiring it to pay such
expenses. In this regard, Article 1, Section 1.8 of the parties'
agreement in this case (G.C. Exh. 2) which the Arbitrator found to
be binding on the Agency is essentially the same as the proposal
found by the Authority to be within the duty to bargain in
National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 21 FLRA No. 2 (21 FLRA 6) (1986). /3/
". . . the Authority ruled in U.S. Customs Service, that the
proposal . . . was not inconsistent with the Travel Expense Act, 5
U.S.C. Section 5701 et seq., because that Act does not prohibit an
agency from exercising, through negotiations, its discretion to
determine whether travel attendant to labor-management relations
activities is sufficiently within the interest of the United
States so as to constitute official business for purposes of
reimbursement of related travel expenses . . . . In this case,
the Arbitrator determined that the Agency agreed to pay the travel
and per diem expenses related to the labor-management relations
activities covered by the official time provision of the parties'
agreement. The Authority finds that the Arbitrator's
determination effectively constitutes, in terms U.S. Customs
Service, a finding that the Agency had exercised its discretion
under the Travel Expense Act through negotiations and had thereby
determined that the covered activities were sufficiently within
the interest of the United States so as to constitute official
business. Therefore, the Agency's (Respondent's) third, fourth
and fifth exceptions also fail to establish that the award is
deficient as alleged. Accordingly, these exceptions /4/ must also
be denied." (21 FLRA at 425-426).
Beyond doubt, the Authority, herein has found that the parties, by
their agreement, had made the "primary interest" determination, i.e.,
". . . The Authority finds that the Arbitrator's determination
effectively constitutes, in terms of U.S. Customs Service, a
finding that the Agency had exercised its discretion under the
Travel Expense Act through negotiations and had thereby determined
that the covered activities were sufficiently within the interest
of the United States so as to constitute official business."
Moreover, the Authority, in modifying the award, specifically
incorporated the "primary interest" determination made by the parties'
agreement by its reference to ". . . Payment of travel and per diem
expenses in connection with the covered activities . . . " In U.S.
Customs, supra, the Authority, after first stating that the "primary
interst" determination can be made in the negotiated agreement, indeed,
". . . 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 negotiation unless precluded by
regulatory or statutory provisions . . . the Agency has not cited any
legal or regulatory provision, nor is any apparent, which would
absolutely prohibit it from exercising through negotiations . . ." (21
FLRA at 10-11), then stated,
"The Union has acknowledged that payment of any travel expenses
flowing from this proposal . . . would be subject to the
provisions of the FTRs (footnote omitted). Hence, we conclude the
proposal would not require the Agency to authorize either specific
travel or expenses which do not comport with the regulatory
requirements and restrictions. The proposal was not intended to,
and could not, require the Agency to use specific authorization
procedures and practices relating to actual travel which
conflicted with the FTRs. It would not foreclose individual
determinations regarding the propriety under the FTRs of
authorizing particular travel and expenses. . . " (21 FLRA at 11).
/5/
Respondent's refusal to comply with the Award because of the absence
of "primary interest" determination (Res. Response and Motion, pp. 8-10;
12-13) is without merit as the Authority previously has held that the
Arbitrator's determination constitutes a finding that Respondent had
exercised its discretion under the Travel Expense Act through
negotiations and had thereby determined that the covered activities were
sufficiently within the interest of the United States so as to
constitute official business. Respondent's other contentions have been
carefully considered and have been found without merit.
Accordingly, Respondent's Motion for Summary Judgment is denied and
General Counsel's Motion for Summary Judgment is granted.
Having found that Respondent violated Sections 16(a)(1) and (8) of
the Statute by its failure and refusal to comply with the Arbitration
Award, as modified by the Authority, it is recommended that the
Authority adopt the following:
ORDER
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 the
Interior, Bureau of Reclamation, Upper Colorado River Storage Project,
Salt Lake City, Utah, shall:
1. Cease and desist from:
(a) Refusing to comply with the Arbitration Award of Leo Weiss,
dated October 7, 1985, as modified by the Authority on April 22,
1986, 21 FLRA No. 58, 21 FLRA 421, 427.
(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) Forthwith comply fully with arbitrator Leo Weiss' October
7, 1985, arbitration award, as modified by the Authority on April
22, 1986, and specifically make the Grievants, Henry Dhieux, Frank
Culp and Lanis Reynolds, whole for any losses, pursuant to the
Federal Travel Regulations, they may have suffered as a result of
Respondent's breach of Article 1, Section 1.8 of the Basic
Agreement, whereby Respondent had exercised its discretion under
the Travel Expense Act and had thereby determined that the covered
activities were sufficiently within the interest of the United
States so as to constitute official business.
(b) Post at all facilities of the Bureau of Reclamation, Upper
Colorado River Storage Project, 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 of the Bureau of Reclamation and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, 5 C.F.R. Section 2423.30, notify the Regional
Director, Region VII, Federal Labor Relations Authority, 535 -
16th Street, Suite 310, Denver, CO 80202, in writing, within 30
days from the date of this Order, as to what steps have been taken
to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: April 17, 1987
Washington, D.C.
FOOTNOTES
(*) The Respondent also filed a motion to strike part of the General
Counsel's opposition, alleging that the General Counsel mischaracterized
the arbitration award in the case. Since we have not relied in any way
on the disputed characterization, we find that the Respondent's argument
does not provide a basis for striking any part of the General Counsel's
submission. The Respondent's motion is therefore denied.
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(1) will be referred to,
simply, as "Section 16(a)(1)."
(2) As set forth in Respondent's Brief, and as the Authority states,
21 FLRA at 426,
"Additionally, in finding the proposal in U.S. Customs Service,
(21 FLRA No. 2, 21 FLRA 6 (1986)) to be within the duty to
bargain, the Authority concluded that the proposal would not
require the agency to authorize the payment of expenses which did
not comport with regulatory requirements and restrictions. Id. at
6. The Authority based its conclusion on the union's
acknowledgment that the payment of any travel expenses flowing
from the proposal, if agreed upon by the parties, would be subject
to the provisions of the Federal Travel Regulations (FTR's).
(footnote ommitted) In this case, the Arbitrator in directing the
payment of travel and per diem expenses in connection with the
covered activities did not provide for the Agency to determine the
propriety of particular travel and per diem expenses under the
FTR's. Consequently, the Authority must modify the award to
assure that it is consistent with the requirement of the FTR's.
(Res. Response and Motion, p. 6) (Emphasis in Res. Response and
Motion).
(3) I am award of the Authority's decision in National Labor
Relations Board Union, 22 FLRA No. 50, 22 FLRA 486 (1986), which as to
Alternative Proposal Number 1 appears to be inconsistent with U.S.
Customs Service, supra. Nevertheless, each involved negotiability
determinations and I find it unnecessary to reconcile the differences,
if any, inasmuch as the present case does not involve a negotiating
proposal but, to the contrary, a contractual provision agreed upon by
the parties. That is, the present case does not involve what Respondent
might have been obligated to bargain about but, rather, the agreement
Respondent made. Respondent's argument concerning the absence of its
intent to negotiate "primary interest" (Res. Response and Motion, pp.
7-8), while interesting, was specifically raised before the Authority
(see, for example, Exception to Arbitration Award, G.C. Exh. 4, pp. 7-8)
and was rejected by the Authority.
(4) As the Authority stated, Respondent's third, fourth and fifth
exceptions were:
"In its third exception, the Agency alleges that the award is
deficient because the Arbitrator erred in interpretation and
application of the Supreme Court's decision in BATF . . . that the
Arbitrator . . . overlooked the essential requirement that before
travel and per diem expenses can be approved an agency must make a
determination that the travel serves the convenience of the agency
or is in the primary interest of the Government. The Agency
further contends that such a determination must be made on a
case-by-case basis and therefore, the provision in Section 1.8 . .
. is unenforceable.
Similarly, in its fourth and fifth exceptions, the Agency
alleges again . . . that payment . . . must be certified to be in
the interest of the Government . . . that Section 1.8 is
unenforceable . . ." (21 FLRA at 424).
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to comply with the Arbitration Award of Leo Weiss,
dated October 7, 1985, as modified by the Authority on April 22, 1986,
21 FLRA No. 58, 21 FLRA 421, 427.
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 forthwith comply fully with arbitrator Leo Weiss' October 7,
1985, arbitration award, as modified by the Authority on April 22, 1986,
and specifically make the Grievants, Henry Dhieux, Frank Culp and Lanis
Reynolds, whole for any losses, pursuant to the Federal Travel
Regulations, they may have suffered as a result of Respondent's breach
of Article 1, Section 1.8 of our Basic Agreement, whereby Respondent had
exercised its discretion under the Travel Expense Act and had thereby
determined that the covered activities were sufficiently within the
interest of the United States so as to constitute official business.
. . . (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 VII,
whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and
whose telephone number is: (303) 837-5224.
28 FLRA NO. 75
VA Medical Center, Leavenworth, Kan., and AFGE, Local 85 (Gradwohl,
Arbitrator), Case No. 0-AR-1376 (Decided August 14, 1987)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
LETTER OF ADMONISHMENT
REMOVAL OF WORD "INSUBORDINATE"
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARBITRATOR:
EXCEEDED HIS AUTHORITY
DECIDED AN ISSUE NOT BEFORE HIM
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FORMULATION OF THE ISSUE
DISAGREEMENT WITH ARBITRATOR'S FASHIONING OF THE REMEDY
DISCIPLINE OF EMPLOYEES
JUST CAUSE
LETTER OF ADMONISHMENT
DIGEST NOTES
An activity issued a letter of admonishment to an employee for what
the agency described as his "insubordinate failure" to follow one of the
activity's hospital policies. The employee filed a grievance. The
parties stipulated that the issue before the arbitrator was whether the
activity had had just and sufficient cause to so discipline the
grievant. The arbitrator determined that the grievant had not performed
his duties in this instance in accordance with standard operating
procedures; that some disciplinary action was warranted, and that
admonishment was the least severe penalty for such an offense; and
that, though the admonishment should stand, the word "insubordinate"
should be deleted from it, as its import was not warranted by the
evidence. The arbitrator thus sustained the grievance with regard to
the work "insubordinate," but denied it in all other respects.
The union filed exceptions to the arbitrator's award, arguing that
the arbitrator had exceeded his authority by failing to limit his award
to the issue as stipulated by the parties. In removing the word
"insubordinate" from the admonishment, said the union, the arbitrator
had created a different issue from the one presented to him.
The Authority ruled that the union's argument did not constitute a
statutory basis for finding the award deficient.
Case No. 0-AR-1376
VETERANS ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 85
Union
DECISION
I. Statement of the Case
This matter is before the Authority on an exception to the award of
Arbitrator John M. Gradwohl 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 Veterans
Administration filed an opposition.
II. Background and Arbitrator's Award
The grievant is an admissions clerk at the Activity. He was issued a
letter of admonishment for his "insubordinate failure" to follow the
Activity's Medical Center Policy Memorandum 136-15. He refused by
inaction to refer a prospective patient to be evaluated by an Activity
physician regardless of the individual's administrative eligibility for
admission to the Medical Center hospital. A grievance was filed and
submitted to arbitration. The stipulated issue before the Arbitrator
was whether the Activity had just and sufficient cause to issue an
admonishment to the grievant for "insubordinate failure" to follow the
Memorandum.
The Arbitrator found that the grievant did not perform his duties in
accordance with standard operating procedures as specified in the
Memorandum. He found that some disciplinary action was warranted for
the grievant's failure to follow standard operating procedures and noted
that admonishment is the least punitive form of discipline under
penalties for the stated offense. The Arbitrator determined that
although the admonishment should be allowed to stand, the reference to
the term "insubordinate" should be deleted from the admonishment. He
determined that the term "insubordinate" carries a stronger meaning than
is warranted by the evidence of the grievant's action in failing to
follow the standard operating procedures. Accordingly, the Arbitrator
sustained the grievance with respect to the term "insubordinate" and
denied it as to all other aspects.
III. Discussion
As its exception, the Union contends that the Arbitrator exceeded his
authority by failing to limit his award to the issue submitted. The
Union contends that the Arbitrator's removal of the term "insubordinate"
from the admonishment created a different issue from the one presented
to him for a decision. The Agency contends that the issue stipulated by
the parties was broadly stated so that it was properly addressed by the
Arbitrator.
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. See Air Force Space Division, Los Angeles
Air Force Station, California and American Federation of Government
Employees, AFL-CIO, Local 2429, 24 FLRA No. 58 (1986) (the exception
disagreed with the arbitrator's formulation of the issues submitted and
with the arbitrator's fashioning of a remedy and provided no basis for
finding the award deficient). Accordingly, the Union's exception is
denied.
Issued, Washington, D.C., August 14, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 74
Dep't of the Navy, Navy Resale & Services Support Office, Field
Support Office, San Diego, Calif., and NFFE, Local 63, Case No.
8-CA-70187 (Decided August 14, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 8-CA-70187
DEPARTMENT OF THE NAVY NAVY RESALE & SERVICES SUPPORT OFFICE FIELD
SUPPORT OFFICE SAN DIEGO, CALIFORNIA
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 63
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists.
The complaint alleges that the Respondent violated section
7116(a)(1), (5), and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to provide the
National Federation of Federal Employees, Local 63 (the Charging Party),
with the names and home addresses of bargaining unit employees located
at the Navy Resale and Services Support Office, Field Support Office in
San Diego, California.
II. Facts
The National Federation of Federal Employees, Local 63, is the
exclusive representative in a unit composed of Civil Service Commissary
Store Division employees in the San Diego area (Naval Station, Miramar,
Naval Training Center, El Centro, and Division Headquarters) of the
Naval Resale and Services Support Office, Field Support Office, San
Diego, California. By letter dated December 5, 1986, the Charging Party
requested that the Respondent furnish it with the names and home
addresses of all unit employees. The Charging Party stated in its
letter that the requested information was needed to communicate with
unit employees on matters such as changes in personnel policies,
practices, and conditions of employment. The Charging Party further
indicated that it viewed the use of employees' names and home addresses
to be an expeditious means of contact for input and proper contract
administration and negotiation, noting in particular that the six
commissary stores in the bargaining unit were spread over a 100 mile
area. By letter dated January 16, 1987, the Respondent refused to
furnish the Union with the information requested.
The parties stipulated that the names and home addresses of the
employees are normally maintained by the Respondent in the regular
course of business; are reasonable available; and do not constitute
guidance, advice, counsel, or training provided to management officials
or supervisors relating to collective bargaining.
III. Positions of the Parties
The General Counsel argues that the Authority's decision on remand 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), 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 contends that the Respondent's
admitted failure to furnish the employees' home addresses constitutes a
clear violation of section 7116(a)(1), (5), and (8) of the Statute.
The Respondent and the Charging Party did not file briefs in this
case.
IV. Analysis and Conclusion
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.
Based on the parties' stipulation and our decision on remand in
Farmers Home, we find that the Respondent was required to furnish the
Charging Party with the names and home addresses of employees in the
bargaining unit. Its refusal to do so violated section 7116(a)(1), (5),
and (8) of the Statute.
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, Navy Resale and Services Support
Office, Field Support Office, San Diego, California, shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the National Federation of
Federal Employees, Local 63, 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 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) Upon request of the National Federation of Federal Employees,
Local 63, the exclusive representative of its employees, furnish it with
the names and home addresses of all bargaining unit employees of the
Navy Resale and Services Support Office, Field Support Office at San
Diego, California.
(b) Post at the Navy Resale and Services Support Office, Field
Support Office, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Commander of the Navy Resale and Services
Support Office, Field Support Office 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., August 14, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request of the National
Federation of Federal Employees, Local 63, 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, upon request of the National Federation of Federal
Employees, Local 63, the exclusive representative of a bargaining unit
of certain of our employees, furnish it with the names and home
addresses of all bargaining unit employees of the Navy Resale and
Services Support Office, Field Support Office at San Diego, California.
. . . (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.
28 FLRA NO. 73
IBEW, Local Union No. 611, and Dep't of the Interior, Bureau of
Reclamation, Rio Grande Project, Case No. 0-NG-6616 (Decided August 14,
1987)
SUBJECT MATTER INDEX ENTRIES
PROCEDURE
RECONSIDERATION OF AUTHORITY DECISIONS
GROUNDS ALLEGED
AUTHORITY MISINTERPRETED APPLICABLE LAW
5 U.S.C. 5341(1) (PREVAILING RATE SYSTEMS ACT)
5 U.S.C. 5343 (CIVIL SERVICE REFORM ACT)
NO BASIS FOR GRANTING RECONSIDERATION
DISAGREEMENT WITH THE MERITS OF THE AUTHORITY'S DECISION
UNITED STATES CODE
5 U.S.C. 5341(1)
5 U.S.C. 5343
DIGEST NOTES
The Authority denied an agency's motion for reconsideration of an
Authority decision requiring the agency to bargain over a proposal. The
agency had argued that the Authority had misconstrued section 5341(1) of
the Prevailing Rate Systems Act and section 704 of the Civil Service
Reform Act in determining that Sunday premium pay is negotiable even if
it is not a prevailing practice in the local area. The Authority
dismissed the agency's arguments as disagreement with the merits of the
Authority's decision.
Case No. 0-NG-1161 (26 FLRA No. 105)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 611,
AFL-CIO
Union
and
U.S. DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION RIO GRANDE
PROJECT
Agency
ORDER DENYING MOTION FOR RECONSIDERATION
This case is before the Authority based on the Agency's Motion for
Reconsideration. For the reasons set forth below, we deny the motion.
In our decision we determined that a proposal which sought to provide
for the continuation of Sunday premium pay for nonsupervisory, hourly
operations and maintenance employees was within the Agency's duty to
bargain. The employees negotiate their wages and premium pay provisions
in accordance with section 704 of the Civil Service Reform Act of 1978
(CSRA), Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C.
Section 5343 (Amendments) and section 9(b) of Pub. L. No. 92-392,
codified at 5 U.S.C. Section 5343 (Amendments, note).
The Union sought to negotiate the subject after the Agency proposed
to terminate the long-standing practice of providing premium pay
compensation for work on Sunday on the ground that it was illegal
because it was not in accordance with local prevailing pay practices.
We found that the Agency's position lacked merit and ordered it to
bargain over the proposal. In reaching this conclusion we determined
that (1) the proposal concerns a condition of employment -- namely
premium pay -- which was subject to negotiation prior to August 19,
1972, and (2) Sunday premium pay is negotiable, under the circumstances,
whether or not it is a prevailing practice in the local area of the
Agency's operation.
In its motion for reconsideration, the Agency contends that we (1)
misapplied section 5341(1) of the Prevailing Rate Systems Act, 5 U.S.C.
Section 5341(1), to prevailing rate employees whose wages and wage
practices are negotiated pursuant to section 9(b) of the Prevailing Rate
Systems Act and section 704 of the SCRA; and (2) misinterpreted section
704 of the CSRA to preserve negotiations for employees who had
historically received Sunday premium pay.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to request
reconsideration of a decision of the Authority. We conclude that the
Agency has not established "extraordinary circumstances" within the
meaning of section 2429.17. Rather, the arguments presented by the
Agency in support of its request constitute nothing more than
disagreement with the merits of our decision. We note that our
conclusion that Sunday premium pay is negotiable whether or not it is a
prevailing practice in the local area was based on our independent
analysis of section 704 of the CSRA and is not dependent on the
application of 5 U.S.C. Section 5341.
Accordingly, the Agency's request for reconsideration is denied.
Issued, Washington, D.C. August 14, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 72
Dep't of Agriculture, Food and Nutrition Service, Midwest Region, and
NTEU (Howlett, Arbitrator), Case No. 0-AR-1292 (Decided August 13, 1987)
STATUTE
7105(a)(2)(E)
7114(c)(1)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO THE FSLMR STATUTE
7105(a)(2)(E)
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE LAW
5 U.S.C. 4303
CONTRARY TO THE FSLMR STATUTE
7105(a)(2)(E)
7114(c)(1)
7122(a)
FEDERAL SERVICE IMPASSES PANEL (7119(c))
INTEREST ARBITRATION
GRIEVANCE PROCEDURE, NEGOTIATED
GRIEVABILITY/ARBITRABILITY (SCOPE)
TERMINATION/SEPARATION/REMOVAL
PROBATIONARY EMPLOYEES
UNITED STATES CODE
5 U.S.C. 4303
DIGEST NOTES
A union requested the help of the Federal Service Impasses Panel
(FSIP) in helping it to resolve a bargaining impasse with the agency. A
member of the FSIP accordingly was authorized to mediate and arbitrate
all outstanding issues for the agency and the union. He directed them
to adopt certain provisions, four of which the agency contested in
exceptions.
The agency's first exception challenged a provision which required
that probationary employees would be covered by an article of the
agreement as consistent with law. The Authority rejected this
challenge, noting that the provision itself limited the protections to
be given probationary employees to those allowed by law.
The agency's second exception was to a provision which would have
submitted the termination of probationary employees to the negotiated
grievance procedure when allegations of unlawful discrimination were
made. In agreement with the agency, the Authority ruled this portion of
the arbitrator's award deficient on two grounds. The first was that the
union had filed a negotiability appeal over language identical to the
provision, and the case had been pending before the Authority when the
arbitrator had made his award; thus, the arbitrator had resolved a
negotiability dispute, in violation of section 7105(a)(2)(E). The
second ground for invalidation was the Authority's holding, following
the arbitrator's award, that the provision was nonnegotiable, as
contrary to law and regulation.
In its third exception, the agency challenged a provision which
entitled union representatives to official time and travel and per diem
for attendance at arbitration hearings. As to this provision, the
Authority found that the arbitrator had not resolved a negotiability
dispute, and that the arbitrator had applied precedent correctly in
ordering the parties to adopt the provision.
The agency's final exception was to a provision regarding the
implementation of the contract. The Authority interpreted the provision
as providing that any provisions of the agreement not challenged by the
agency would go into effect thirty days after the agreement's execution;
the agency would not be required to implement provisions it was
challenging while its exceptions were pending before the Authority. The
agency's section 7122(a) and section 7114(c)(1) arguments to the
provision were rejected.
Case No. 0-AR-1292
UNITED STATES DEPARTMENT OF AGRICULTURE, FOOD AND NUTRITION SERVICE,
MIDWEST REGION
Agency
and
NATIONAL TREASURY EMPLOYEES UNION
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Robert G. Howlett 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.
II. Background and Arbitrator's Award
The National Treasury Employees Union requested the assistance of the
Federal Service Impasses Panel (the Panel) in a bargaining impasse with
the Agency. The Panel recommended that the dispute be referred to Mr.
Robert G. Howlett, who is also a Member of the Panel, for
mediation-arbitration.
Mr. Howlett was authorized by the Panel to mediate with respect to
all issues and to render a decision as an arbitrator on any that
remained unresolved. During the course of mediation, the parties
reached agreement on several issues. However, the dispute persisted as
to a number of other issues, which Mr. Howlett resolved through
arbitration.
In his award, the Arbitrator directed the parties to include in their
collective bargaining agreement a number of provisions. The Agency
excepts to four of the provisions. /*/
III. First Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision under
the agreement article entitled, "Actions for Unacceptable Performance":
Probationary employees shall be covered by this article
consistent with applicable law.
B. Contentions
The Agency contends that the disputed provision is inconsistent with
law and regulation. Relying on the court's decision in Department of
Justice, Immigration and Naturalization Service v. FLRA, 799 F.2d 724
(D.C. Cir. 1983) (DOJ/INS), the Agency argues that law and regulation
governing performance-based actions make it clear that neither Congress
nor the Office of Personnel Management (OPM) intended that the
procedural requirements of 5 U.S.C. Section 4303 or Part 432 of OPM's
regulations were to be applicable when removing a probationary employee
because of unacceptable performance.
C. Analysis and Conclusion
We find that the Agency has misconstrued this part of the
Arbitrator's award and has failed to establish that it is deficient as
alleged. The Arbitrator recognized that the removal of a probationary
employee is excluded from coverage of negotiated grievance procedures.
He expressly held that under the disputed provision, probationers would
be covered only insofar as law allows. We conclude that the provision
is not contrary to law because by its terms it is circumscribed by law.
In our view, the award does not provide that probationers may grieve
performance-based actions. Further, nothing in this decision should be
construed as an explicit or implicit finding that there are any
performance-based actions which would be covered by this provision.
Rather, this exception must be denied solely because the provision, as
written, is not deficient on any grounds set forth in section 7122 of
the Statute.
IV. Second Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision in the
agreement article entitled, "Grievance Procedure":
The grievance procedure established by this Section shall be
the exclusive procedure for resolving all grievances except that
the procedures do not cover: . . . (9) termination of a
probationary employee unless the product of alleged unlawful
discrimination. (Only the underlined language is disputed.)
B. Contentions
The Agency contends that the Arbitrator was barred from ordering the
disputed language included in the agreement because the Union had filed
a negotiability appeal concerning the identical language during the
course of the impasse proceeding before the Panel and the case was still
pending before the Authority when the Arbitrator rendered his award.
Further, relying on the court's decision in DOJ/INS, the Agency argues
that termination of a probationary employee is neither grievable nor
arbitrable.
C. Analysis and Conclusion
We agree with the Agency that this part of the Arbitrator's award is
deficient. First, the Authority has previously ruled that negotiability
disputes which arise between an agency and a union under section 7117(c)
of the Statute must be resolved by the Authority as required by section
7105(a)(2)(E); and that an interest arbitrator acting pursuant to the
direction of the Panel is without authority to resolve such
negotiability disputes. Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio and American
Federation of Government Employees, Council of Locals, No. 214, 18 FLRA
710 (1981).
In cases involving allegations of nonnegotiability made during an
interest arbitration proceeding, we will carefully examine the record in
the case, including the arbitrator's award, to determine whether the
arbitrator made a negotiability ruling. If so, the award will be set
aside. However, where the arbitrator has merely applied existing case
law in resolving the impasse, we will resolve any exceptions to the
award on the merits. The exceptions will be denied if the existing case
law was correctly applied. Social Security Administration and National
Council of SSA Field Operations Locals (NCSSAFOL), American Federation
of Government Employees, AFL-CIO (AFGE), 25 FLRA No. 17 (1987). In
cases where the award is set aside because an interest arbitrator
improperly asserted jurisdiction over and decided a duty to bargain
question, the Authority may require the parties to return to the
bargaining table "with a sincere resolve to reach agreement" so that the
matter is not left unresolved. Department of Defense Dependents Schools
(Alexandria, Virginia), 27 FLRA No. 72, slip op. at 11 (1987).
In this case, we find that the Arbitrator resolved a negotiability
dispute between the parties. Therefore, this part of the arbitrator's
award is inconsistent with section 7105(a)(2)(E) of the Statute and must
be set aside.
However, no useful purpose would be served by directing the parties
to return to the bargaining table because the matter has not been left
unresolved. Subsequent to the Arbitrator's award, we issued a decision
in the dispute referred to by the Agency, National Treasury Employees
Union and U.S. Department of Agriculture, Food and Nutrition Service,
Midwest Region, 25 FLRA No. 90 (Proposal 6), slip op. at 10-12 (1987),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 87-1166 (D.C. Cir. April 15, 1987). In that decision, we
found that the disputed language, which would subject the termination of
probationary employees to the parties' negotiated grievance procedures
whenever discrimination was alleged, was nonnegotiable as contrary to
law and regulation.
V. Third Exception
A. Disputed Provision
The Arbitrator directed inclusion of the following provision in the
agreement article entitled, "Arbitration":
The grievant(s), representative and witnesses employed by FNS .
. . found to be necessary by the Arbitrator, shall be allowed
official time and travel and per diem relative to the proceedings
when otherwise in duty status. (Only the underlined word is
disputed.)
B. Contentions
In its exception to this part of the Arbitrator's award, the Agency
argues, as it did in its second exception, that the Arbitrator
improperly decided a negotiability dispute between the parties. The
Agency contends that the identical language was pending before the
Authority as part of the same negotiability appeal filed by the Union
during the impasse proceedings.
C. Analysis and Conclusion
As to this part of the award, we find that the Arbitrator did not
resolve a negotiability dispute contrary to section 7105(a)(2)(E) of the
Statute. Rather, upon careful examination of the record, we find that
the Arbitrator merely applied existing Authority case law in resolving
the impasse between the parties. United States Department of the
Treasury, Internal Revenue Service and Internal Revenue Service, Austin
District, 23 FLRA No. 100 (1986); National Joint Council of Food
Inspection Locals, AFGE, AFL-CIO and Food Safety and Inspection Service,
U.S. Department of Agriculture, 23 FLRA No. 3 (1986); 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. March 27,
1986).
We further find that the Arbitrator correctly applied the existing
precedent. In our decision in the negotiability case referred to by the
Agency, we found that language in dispute was within the duty to
bargain. National Treasury Employees Union, 25 FLRA No. 90 (Proposal
2), slip op. at 2-5. Accordingly, this exception must be denied.
VI. Fourth Exception
A. Disputed Language
The Arbitrator directed inclusion of the following provision in the
article entitled, "Duration and Termination":
The parties will execute the terms and conditions of this
contract, rendered pursuant to an arbitration award, no later than
thirty days after the date of this award. Moreover, the parties
will implement the terms and conditions of this contract no later
than thirty days after its execution even if some provisions are
challenged as illegal and/or disapproved. (Only the underlined
language is disputed.)
B. Contentions
The Agency contends that this part of the Arbitrator's award is
deficient as contrary to the Statute. The Agency first argues that the
disputed provision would require the Agency to implement provisions of
the award which have been appealed to the Authority under section
7122(a) of the Statute. The Agency maintains that the disputed
provisions cannot be incorporated into the agreement and made effective
until such time as the Aughority rules on the exceptions and finds that
the provisions are not deficient.
The Agency also argues that this part of the award is contrary to
section 7114(c)(1) of the Statute. The Agency maintains that the
Arbitrator's award does not constitute the entire agreement between the
parties and that the parties had reached agreement on substantial
portions of the contract, which are subject to agency head review under
section 7114(c)(1). The Agency asserts that this part of the
Arbitrator's award would preclude agency head disapproval of portions of
the agreement which are subject to section 7114(c)(1) review.
C. Analysis and Conclusion
We find that the Agency has misinterpreted this part of the
Arbitrator's award and has failed to establish that it is deficient as
alleged.
According to the Arbitrator, the disputed language was proposed by
the Union. The Union argued in support of the proposal that merely
because a portion of the parties' agreement might be challenged,
implementation of other provisions should not be delayed. The
Arbitrator noted that the Agency did not offer any counter proposal or
discussion concerning the language proposed by the Union. He recognized
the Agency's right under the Statute to challenge portions of the
agreement. However, he determined that any such challenges should not
prevent other provisions of the parties' agreement from being made
effective. The Arbitrator therefore ordered the inclusion of the
proposed language in the parties' agreement.
Based on the foregoing, we find, contrary to the Agency's assertions
that this part of the Arbitrator's award does not require the Agency to
implement any provisions of his award which the Agency appealed to the
Authority under section 7122(a) of the Statute while the exceptions are
pending before the Authority. The award only provides for
implementation of those portions of the agreement which have not been
challenged under provisions of the Statute. We conclude that this part
of the award is not deficient as alleged. Accordingly, the Agency's
exceptions must be denied.
VII. Decision
For the above reasons, the Agency's first, third and fourth
exceptions are denied. The disputed provision which the Agency excepted
to in its second exception is contrary to law and, therefore, that
portion of the Arbitrator's award is set aside.
Issued, Washington, D.C., August 13, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Agency also expressed concern with the possible future effect
of another part of the Arbitrator's award, which directed the parties to
meet and bargain regarding the payment of travel and per diem expenses
for union representatives and employees in various actions. However,
the Agency expressly stated that it was not excepting to this part of
the award and we find it unnecessary to address the Agency's essentially
speculative concerns.
28 FLRA NO. 71
Defense Logistice Agency, DOD, Battle Creek, Mich., and AFGE, Local
1626 (Lipson, Arbitrator), Case No. 0-AR-1361 (Decided August 13, 1987)
STATUTE
7106(a)(2)(C)
7122(a)
SUBJECT MATTER INDEX ENTRIES
APPOINTMENTS, SELECTION FOR
ARBITRAL REVIEW
DIRECT CONNECTION: IMPROPER ACT AND FAILURE TO SELECT
ARB AWRDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO APPROPRIATE RULE OR REGULATION
FPM CHAPTER 335
AWARD CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(C)
ARB AWARDS, REMEDIES ORDERED BY ARBS
POSITION, FILLING OF
SELECT GRIEVANT FOR POSITION
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE RULE OR REGULATION
FPM CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(C)
FEDERAL PERSONNEL MANUAL
CHAPTER 335, SUBCHAPTER 1-4, REQUIREMENT 4
POSITION, FILLING OF
ARBITRATION AWARD
MANAGEMENT RIGHTS ABRIDGED
DIRECT CONNECTION: IMPROPER ACT AND FAILURE TO SELECT
DIGEST NOTES
An employee filed a grievance when she was not interviewed for a
vacancy. The arbitrator determined that the activity had violated the
parties' agreement when it had failed to interview the employee. He
concluded that the grievant "might have been selected," had she been
interviewed, and ordered that she be promoted to the next available,
equivalent position.
In its exceptions, the activity argued that the award was contrary to
Federal Personnel Manual chapter 335, subchapter 1-4, Requirement 4, and
to management's section 7106(a)(2)(C) right to select employees. The
Aughority agreed. Citing precedent, the Authority held that because the
arbitrator had failed to find that the grievant would have been
selected, but for the agency's failure to interview her, the award was
invalid. The Authority therefore modified the award, ordering the
agency to give the grievant priority consideration for the next
available, equivalent position.
Case No. 0-AR-1361
DEFENSE LOGISTICS AGENCY, DEPARTMENT OF DEFENSE, BATTLE CREEK,
MICHIGAN
Activity
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1626
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Nathan Lipson 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.
II. Background and Arbitrator's Award
The parties submitted to arbitration the issue of whether the
Activity violated the collective bargaining agreement by failing to
interview the grievant for a specified position vacancy. The Arbitrator
found that the Activity had violated the agreement. As a remedy, he
ordered the grievant promoted to the next equivalent position that
becomes available because he found that the grievant "might have been
selected" if she had been interviewed.
III. Exception
The Agency contends that the award is contrary to law. Specifically,
the Agency argues that the award violates management's right to select
under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual
(FPM) chapter 335, subchapter 1-4, Requirement 4.
IV. Analysis and Conclusions
We conclude that the Arbitrator's award ordering that the grievant be
promoted to the next available position equivalent to one the Activity
filled improperly is contrary to section 7106(a)(2)(C) of the Statute
and FPM chapter 335. The Authority has consistently held that
management's right under the Statute and the FPM to make the actual
selections for promotion can only be abridged by an award of an
arbitrator when the arbitrator finds a direct connection between
improper agency action and the failure of a specific employee to be
selected for promotion. For example, U.S. Naval Ordnance Station,
Louisville, Kentucky and International Association of Machinists and
Aerospace Workers, Local Lodge 830, 22 FLRA No. 36 (1986). In this
case, we conclude that the Arbitrator failed to make the necessary
finding. The Arbitrator's findings that the Activity violated the
collective bargaining agreement by failing to interview the grievant and
that if she had been interviewed, "she . . . might have been selected"
do not constitute the necessary finding that but for the unwarranted
action (failing to interview the grievant), the grievant would have been
selected for promotion.
V. Decision
Accordingly, the award is deficient and is modified to provide an
appropriate legal remedy for the violation of the collective bargaining
agreement found by the Arbitrator by substituting the following for the
award's second sentence: /*/
Grievant Allison VanNocker is awarded priority consideration
for the next available position equivalent to the JOA 85-65
vacancy that becomes open.
Issued, Washington, D.C., August 13, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) See American Federation of Government Employees, Local 12 and
United States Department of Labor, 15 FLRA 543 (1984) and the case cited
in the decision.
28 FLRA NO. 70
Dep't of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pa.,
and Philadelphia Metal Trades Council, Philadelphia, Pa. (Lang,
Arbitrator), Case No. 0-AR-1311 (Decided August 13, 1987)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, MODIFIED OR SET ASIDE
AWARD CONTRARY TO APPLICABLE LAW
5 U.S.C. 5542
29 U.S.C. 201 ET. SEQ. (FAIR LABOR STANDARDS ACT)
ARB AWARDS, REMEDIES ORDERED BY ARBS
COMPENSATION
STRAIGHT-TIME COMPENSATION
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, ARBITRATOR:
ERRED BY:
FAILING TO APPLY THE APPROPRIATE STANDARDS
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
CONTRARY TO APPLICABLE LAW
LAW NOT SPECIFIED
CONTRARY TO THE EVIDENCE
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
UNITED STATES CODE
5 U.S.C. 5542
29 U.S.C. 201 ET. SEQ. (FAIR LABOR STANDARDS ACT)
DIGEST NOTES
Three employees filed grievances when they were not assigned to
participate in sea trials aboard ship. The arbitrator determined that
management itself had determined that the participation of two of the
grievants in the first sea trial was essential, and that management's
failure to assign them was not fair and equitable, and so had violated
the parties' agreement. The arbitrator determined that the evidence was
inconclusive as to the second trial. He sustained the grievances of the
two employees he had deemed improperly denied assignment to the first
sea trial, and ordered that they be paid sixteen hours of straight
compensation for every twenty-four consecutive hours they would have
spent aboard the ship during the first trial. The third employee's
grievance was denied as to both trials; the second and third
employees', as to the second trial.
The union filed exceptions to the arbitrator's award, arguing that
the arbitrator had erred in not awarding the two successful grievants
partial overtime compensation; and that he had erred in denying one of
the grievants compensation for the second sea trial, and in computing
the length of the first sea trial. The Authority rejected the latter
arguments, finding that they constituted, respectively, disagreement
with the arbitrator's findings and a misunderstanding of the award. But
the Authority sustained the union's contention that the successful
grievants were entitled to partial overtime compensation. Under
precedent, when an employee is entitled to overtime under both 5 U.S.C.
5542 and 29 U.S.C. 201 et. seq. (the Fair Labor Standards Act), he must
be paid under the statute which affords him the greater benefit.
Although the record did not disclose which statute entitled the
grievants to overtime, the grievants necessarily were due some overtime
pay, as they would have worked for more than eight hours per day and for
more than forty hours over the sea trial as a whole.
Case No. 0-AR-1311
DEPARTMENT OF THE NAVY PHILADELPHIA NAVAL SHIPYARD PHILADELPHIA,
PENNSYLVANIA
Activity
and
PHILADELPHIA METAL TRADES COUNCIL PHILADELPHIA, PENNSYLVANIA
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the January 15,
1987, award of Arbitrator Kinard Lang 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.
II. Background and Arbitrator's Award
A grievance was filed and submitted to arbitration alleging that the
Activity violated the parties' collective bargaining agreement when the
three grievants were not assigned to participate in sea trials of
certain equipment aboard the USS Luce. The first sea trial period began
on February 22, 1983; the second trial period began on March 10, 1983.
With regard to the first sea trial, the Arbitrator found convincing
evidence that management had made the prerequisite determination that
participation of two of the grievants was essential. The Arbitrator
further found that management's subsequent action in not assigning the
two grievants to that trial was not fair and equitable, as required by
the parties' agreement. The Arbitrator therefore concluded that
management violated the agreement by that action. As a remedy, the
Arbitrator determined, based on the evidence and testimony, that the
pertinent provision of the parties' agreement regarding compensation
provided bargaining unit employees 16 hours of straight-time pay for
every 24 hours aboard a ship at sea.
As to the second sea trial, which began on March 10, the Arbitrator
found that the evidence concerning management's determination of the
"essentiality" of the three grievants was inconclusive.
Accordingly, as his award, the Arbitrator sustained the grievance of
the two grievants who were improperly denied assignment to the first sea
trial, "commencing on February 22, 1983, and concluding on or about
February 26, 1983." The Arbitrator awarded those grievants 16 hours of
straight-time compensation, at their then applicable rate of pay, for
every 24 consecutive hours they would have spent aboard the USS Luce
during that trial. The Arbitrator denied the grievance of the third
grievant as to the February 22 sea trial and the grievance of all three
as to the March 10 trial.
III. First Exception
A. Position of the Parties
In its first exception, the Union argues that the Arbitrator erred in
not awarding the two successful grievants partial overtime compensation.
The Union maintains that employees who have participated in previous
sea trials have been paid 8 hours of straight-time pay and 8 hours of
overtime pay for every 24 consecutive hour period from Monday through
Friday, and 16 hours of overtime pay for every 24 consecutive hour
period from Saturday through Sunday, during the sea trials.
B. Analysis and Conclusions
A Federal employee may be entitled to overtime compensation under 5
U.S.C. Section 5542 for "hours of work" in excess of 40 hours in an
administrative workweek or 8 hours in a day. Overtime compensation for
Federal employees is also authorized under the Fair Labor Standards Act
(FLSA), 29 U.S.C. Section 201 et seq., for nonexempt employees.
Nonexempt employees may be entitled to overtime compensation under the
FLSA for "hours worked" in excess of 40 hours a week. When employees
are entitled to overtime under both Title 5 and the FLSA, they are to be
paid under the statute which gives them the greater benefit. Federal
Prison System and American Federation of Government Employees, Local No.
2459, 8 FLRA 103 (1982); U.S. Department of Justice, Medical Center for
Federal Prisoners and American Federation of Government Employees, Local
1612, 11 FLRA 29 (1983).
The record does not disclose the statutory basis for the payment of
overtime to the grievants. However, regardless of whether their
compensation is computed under 5 U.S.C. Section 5542 or the FLSA, the
compensation due the grievants must necessarily include some overtime
pay. The record shows that the grievants would have received
compensation for more than 8 hours per day, and because of the length of
the sea trial, more than 40 hours overall. Accordingly, it is clear
that the computation of their backpay under applicable law must include
overtime. Since the arbitration award limits their backpay recovery to
straight-time compensation, it is deficient as a matter of law. The
actual computation of the backpay due the grievants must, of course, be
made in accordance with the law and regulations applicable to them.
IV. Other Exceptions
A. Position of the Parties
In its other exceptions, the Union contends that the Arbitrator erred
when he denied one of the grievants compensation for the March 10 sea
trial; and when he assertedly concluded that the first sea trial period
was from February 22 to 26, rather than through February 27.
B. Analysis and Conclusions
As to the Union's exception to the award concerning the March 10 sea
trial, we find that the Union's contention constitutes nothing more than
disagreement with the Arbitrator's finding that the evidence was
inconclusive to establish an entitlement of any of the three grievants
to participate in that sea trial. It is well established that
exceptions which merely constitute disagreement with an arbitrator's
evaluation of the evidence presented or disagreement with an
arbitrator's findings of fact or reasoning and conclusions based on the
evidence presented provide no basis for finding an award deficient. For
example, Local 1919, American Federation of Government Employees and
Veterans Administration National Cemetery, Farmingdale, Long Island, New
York, 12 FLRA 605 (1983); Federal Correctional Institution, Petersburg,
Virginia and American Federation of Government Employees, Local 2502,
Petersburg, Virginia, 13 FLRA 108 (1983).
As to the Union's exception to the Arbitrator's purported conclusion
concerning the duration of the first sea trial, we find that the Union
has misinterpreted the award. We note that the Arbitrator described the
end of the period in general terms as on or about February 26, and that
the Arbitrator clearly awarded the successful grievants compensation for
every 24 consecutive hours they would have spent aboard the USS Luce
during that first sea trial.
Accordingly, these exceptions must be denied.
V. Decision
For the reasons stated above, with respect to that part of the
Arbitrator's award which limited the backpay of the two grievants who
were improperly denied assignment to the first sea trial to
straight-time pay, we modify the award to provide that those grievants
are to be paid at appropriate straight-time and overtime rates for 16
hours of work for every 24 consecutive hours they would have spent
aboard the USS Luce during that trial, consistent with applicable law,
implementing regulations and the parties' collective bargaining
agreement.
The Union's other exceptions are denied.
Issued, Washington, D.C., August 13, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
28 FLRA NO. 69
VA Outpatient Clinic, Los Angeles, Calif., and AFGE, Local 2297, Case
No. 8-CA-60493 (Decided August 13, 1987)
STATUTE
7114(b)(4)
7116(a)(1), (5), and (8)
7118
SUBJECT MATTER INDEX ENTRIES
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)
DIGEST NOTES
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. 8-CA-60438
VETERANS ADMINISTRATION OUTPATIENT CLINIC, LOS ANGELES, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2297, AFL-CIO
Charging Party
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority under section 2429.1(a) of the
Authority's Regulations based on the parties' stipulation of facts. The
complaint alleges that the Respondent violated section 7116(a)(1), (5),
and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) by refusing to provide Local 2297 (the Union) with the names
and home addresses of employees of the Respondent who are members of the
Union's bargaining unit. The Respondent and the General Counsel filed
briefs. For the reasons stated below, we find that the Respondent has
committed the unfair labor practices as alleged.
II. Facts
The American Federation of Government Employees, AFL-CIO (AFGE) is
the exclusive representative of a consolidated unit which includes,
among other units, a unit of employees at the Veterans Administration
(VA) Outpatient Clinic, Los Angeles, California. Local 2297 acts as
AFGE's agent with respect to these employees. By letter dated June 10,
1986, the Union requested the Respondent to furnish the names and home
addresses of all unit employees which by letter dated June 17, 1986, the
Respondent refused to provide.
The parties have stipulated that this information is normally
maintained by the Respondent in the regular course of business; is
reasonably available; and does not constitute guidance, advice, counsel
or training provided to management officials or supervisors relating to
collective bargaining.
III. Positions of the Parties
The Respondent asserts that it need not provide the names and home
addresses of unit employees to the Union under section 7114(b)(4)
because this information is not necessary for the Union's collective
bargaining functions under the Statute. In this regard, the Respondent
argues that the Union has not explained its need for this information
and that it does not need it because it has alternative means of
communicating with the unit employees. The Respondent also asserts that
release of this information to the Union is precluded under the Privacy
Act. It argues that release of this information would adversely affect
employees' privacy and that disclosure of this information is not
covered by the "routine use" exception, which permits disclosure to
labor organizations of information when relevant and necessary to their
representational duties.
The General Counsel asserts that this case is controlled by our
decision 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 the Farmers Home
Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2779
(8th Cir. Dec. 23, 1986). The General Counsel submits that the
Respondent's refusal to provide the names and home addresses of
bargaining unit employees violates section 7114(b)(4) of the Statute and
constitutes the unfair labor practices alleged in the complaint.
IV. Analysis and Conclusions
In our decision on remand in Farmers Home, we held that the release
of the names and home addresses of bargaining unit employees to
exclusive representatives is not prohibited by law, is necessary for
unions to fulfil their duties under the Statute, and meets all of the
other requirements of section 7114(b)(4) of the Statute. Our decision
in Farmers Home analyzed the two exceptions to the Privacy Act's bar to
disclosure of personal information pertinent to the release of
employees' names and home addresses: exception (b)(2), concerning the
Freedom of Information Act, and exception (b)(3), relating to "routine
use" of information. We found that both exceptions to the Privacy Act's
bar applied so as to authorize release of the information under the
Privacy Act.
We also found in Farmers Home that the release of the information is
generally required without regard to whether alternative 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. Consistent with our decision in Farmers Home, we
therefore find that the Respondent was required to furnish the Union
with the names and home addresses of the employees in the bargaining
unit. Its refusal to do so violated section 7116(a)(1), (5) and (8) of
the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Regulations and
section 7118 of the Federal Service Labor-Management Relations Statute,
the Veterans Administration Outpatient Clinic, Los Angeles, California
shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of the American Federation of
Government Employees, Local 2297, AFL-CIO, the agent for the exclusive
representative of a unit of its employees, the names and home addresses
of all bargaining unit employees located at the VA Outpatient Clinic,
Los Angeles, California.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights assured them by
the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the American Federation of Government Employees,
Local 2297, AFL-CIO, the agent for the exclusive representative of a
unit of its employees, furnish it with the names and home addresses of
all bargaining unit employees located at the VA Outpatient Clinic, Los
Angeles, California.
(b) Post at the VA Outpatient Clinic, Los Angeles, California, copies
of the attached Notice on forms furnished by the Authority. Upon
receipt they will be signed by the Director of the VA Outpatient Clinic,
Los Angeles, California, 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 VIII, 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., August 13, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to furnish, upon request of the American
Federation of Government Employees, Local 2297, AFL-CIO, the agent for
the exclusive representative of a unit of our employees, the names and
home addresses of all bargaining unit employees located at the VA
Outpatient Clinic, Los Angeles, California.
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 by the American Federation of Government
Employees, Local 2297, AFL-CIO, the agent for the exclusive
representative of a unit of our employees, furnish it with the names and
home addresses of all bargaining unit employees located at the VA
Outpatient Clinic, Los Angeles, California.
. . . (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 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.
28 FLRA NO. 68
U.S. Army, Aberdeen Proving Ground, Installation Support Activity,
and NFFE, Local 2058 (Flounders, Arbitrator), Case No. 0-AR-1375
(Decided August 13, 1987)
STATUTE
7106(a)(2)(B)
7122(a)
SUBJECT MATTER INDEX ENTRIES
ARB AWARDS, REMEDIES ORDERED BY ARBS
COMPENSATION
OVERTIME COMPENSATION
ARB AWARDS, REVIEW OF, EXCEPTIONS ASSERTED IN APPEAL, AWARD:
BASED ON NONFACT
CONTRARY TO THE FSLMR STATUTE
7106(a)(2)(B)
ARB AWARDS, REVIEW OF, NO BASIS FOR REVIEW
DISAGREEMENT WITH ARBITRATOR'S FINDINGS OF FACT
CONDITIONS OF EMPLOYMENT (C.O.E.'s) (7103(a)(14))
PAST PRACTICE
OVERTIME
OVERTIME OPPORTUNITIES
OPPORTUNITY TO WORK OVERTIME DENIED IMPROPERLY
DIGEST NOTES
An agency canceled overtime scheduled for the regular days off of two
employees because they had been approved for annual leave during the
week in question. The employees filed grievances, challenging the
cancellation of the overtime. The arbitrator framed the issue as
whether the agency's cancellation of the overtime in such circumstances
had violated a binding past practice. He determined that management had
not had just cause to deny overtime work to the grievants, and ordered
that they be compensated for the canceled overtime.
In its exceptions, the agency argued chiefly that the award was based
on a nonfact, as the arbitrator had failed to find that a past practice
existed, and that it was contrary to management's rights to assign work
and to determine the personnel by which agency operations shall be
conducted.
The Authority ruled that the agency had failed to prove the
arbitrator's award deficient on any statutory ground.
Case No. 0-AR-1375
U.S. ARMY ABERDEEN PROVING GROUND, INSTALLATION SUPPORT ACTIVITY
Activity
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 2058
Union
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions to the award of
Arbitrator Emer C. Flounders 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.
II. Background and Arbitrator's Award
The grievances in this case concern management's cancellation of
scheduled overtime for two employees on their regular days off because
they were approved for annual leave during the week of their regular day
off. The overtime work for which they had been scheduled was then
performed by others. The employees disputed the cancellation of
overtime and filed grievances which were submitted jointly to
arbitration.
The Arbitrator stated the issue to be whether management's actions
violated the parties' collective bargaining agreement because the
refusal to permit the grievants to work overtime on their regular day
off as was originally scheduled violated a binding past practice. After
reviewing the positions of the parties on whether there was an
established practice of permitting employees to work overtime on their
regular day off despite annual leave having been taken during the week,
the Arbitrator in effect agreed with the Union. Accordingly, he
sustained the grievances stating that management did not have just cause
to deny overtime work to the grievants. As his award, he ordered that
the grievants be compensated for the overtime denied them.
III. Discussion
In its exceptions the Agency contends that the award is based on a
nonfact and conflicts with management's rights under the Statute.
Specifically, the Agency argues that the award is based on a nonfact
because the Arbitrator failed to find that (1) a past practice existed
as alleged by the Union, and (2) there was a rule prohibiting employees
from being scheduled for overtime on their regular day off during a week
when they were on annual leave. The Agency argues that the award is
contrary to management's rights to assign work and to determine the
personnel by which agency operations shall be conducted under section
7106(a)(2)(B) because the award precludes management's practice of not
permitting employees to work overtime on their regular day off during a
week when they were on annual leave.
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, 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, Bureau of Prisons,
Department of Justice and American Federation of Government Employees,
Local 148, 21 FLRA No. 15 (1986) (denying, as constituting nothing more
than disagreement with the arbitrator's findings of fact, an exception
contending that the award was based on a nonfact because it was premised
on two mistaken findings of fact); National Treasury Employees Union
and U.S. Customs Service, 18 FLRA 780 (1985) (the Authority denied an
exception contending that an award of backpay to employees denied
overtime work was contrary to section 7106(a); the Authority determined
that the arbitrator had simply enforced the established procedures of
the parties for the selection of which employee will perform work
management has determined will be performed on overtime).
Accordingly, the Agency's exceptions are denied. /*/ Issued,
Washington, D.C., August 13, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(*) The Agency also requested a stay of the award when it filed its
exceptions with the Authority on June 3, 1987. Effective December 31,
1986, the Authority's Regulations were revised to revoke those portions
pertaining to the filing of requests for stays of arbitrator awards (51
Fed. Reg. 45754). Accordingly, no action was taken on the stay request.
28 FLRA NO. 67
Fort Stewart (Georgia) Association of Educators and Fort Stewart
Schools, Case No. 0-NG-1071 (Decided July 31, 1987)
STATUTE
7103(a)(14)
7105(a)(2)(D), (E)
7106(a)(1); (a)(2)(B)
7117(a)(1), (2)
SUBJECT MATTER INDEX ENTRIES
ASSIGN WORK, RESERVED MGM'T RIGHT
ELEMENTS OF THE RIGHT
PARTICULAR EMPLOYEES, POSITIONS
NON-BARGAINING-UNIT EMPLOYEES
MANAGEMENT OFFICIALS
BUDGET, MANAGEMENT RIGHTS, RESERVED
TEST OF DIRECT INTERFERENCE
INCREASED COSTS NOT OFFSET BY BENEFITS
COMPELLING NEED (7117(a)(2))
CRITERIA AND STANDARDS
AUTHORITIES ALLEGEDLY MANDATING AGENCY REGULATIONS
20 U.S.C. 241
COMPENSATION SYSTEM
AUTHORITIES GOVERNING PAYMENT TO FEDERAL EMPLOYEES
20 U.S.C. 241 (EDUCATIONAL PERSONNEL)
31 U.S.C. 1341, 1341(a) (ANTIDEFICIENCY)
WAGES/SALARY RATES/FRINGE BENEFITS
BUDGET
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
EDUCATIONAL PERSONNEL (20 U.S.C. 241(a))
LEAVE
ANNUAL LEAVE OR VACATION PAY
COURT LEAVE
LEAVE WITHOUT PAY
MATERNITY OR PATERNITY LEAVE
SABBATICAL LEAVE
SICK LEAVE AND SICK PAY
UNITED STATES CODE
10 U.S.C. 2304
20 U.S.C. 241
20 U.S.C. 241(a)
31 U.S.C. 1341
DIGEST NOTES
The Authority considered three proposals in this negotiability
appeal.
Two proposals concerned salary and benefits. Two sections of the
first proposal would have provided health insurance and life insurance
without charge to employees; the Authority rules these provisions
nonnegotiable, as inconsistent with federal law, which limits the
employer's contribution to such insurance. (sections L and M, proposal
1) The remainder of the first proposal and all of the second proposal
were ruled negotiable. Citing precedent, the Authority rejected the
agency's arguments that Congress did not intend to include teachers' pay
among negotiable conditions of employment; that the proposals
interfered with the agency's section 7106(a)(1) right to establish its
budget; that the proposals violated procurement law and regulations and
the Antideficiency Act; and that the proposals were contrary to an
agency regulation implementing 20 U.S.C. 241, which limits the cost of
education per pupil in the agency's schools to the expenditure per pupil
in the public schools of the state in which the agency is located. All
the agency's contentions had been addressed and rejected in earlier
cases. (majority opinion, proposals 1 and 2)
The remaining proposal concerned various categories of leave. One
section of the proposal was ruled nonnegotiable, as it would have
assigned authority for approval of leave without pay to specific
management officials, a violation of the agency's right to assign work.
(section F, proposal 3) The remainder of the proposal was held
negotiable. Citing precedent, the Authority held that the various types
of leave for teachers in the agency's dependent schools are appropriate
subjects for bargaining. (majority opinion, proposal 3)
Case No. 0-NG-1071
FORT STEWART (GEORGIA) ASSOCIATION OF EDUCATORS
Union
and
FORT STEWART SCHOOLS
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
I. Statement of the Case
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 three proposals.
II. Proposals 1 and 2
Proposal 1
Article 25: Salary and Benefits
A. The salary schedule shall be subject to annual review
beginning approximately the 15th of December of each year. The
Association shall be consulted in the review. Employer will
maintain salaries on a competitive level with comparable school
districts. The comparable school districts which shall be used
for salary and fringe benefits comparison purposes shall be
Liberty and Chatham Counties and Atlanta City Schools.
B. The ceiling for years of experience shall be extended from
16 to 20 years.
C. Pay lanes on the salary schedule shall be established for
each category of teachers at Fort Stewart Schools justified by the
results of a wage survey system conducted by the Employer.
D. A copy of all data collected shall be provided to the
Association for independent analysis. The Employer shall consult
the Association to explain its analysis and attempt to resolve any
differences of opinion before the salary schedule is developed.
E. All increases on the salary schedule shall be applied
across the board.
F. The salary schedule shall reflect the cost of living
increase no later than thirty (30) days after it is released by
the Federal government.
G. Completion of Higher Level Education
1. A teacher who completes the advanced education required to
qualify for a salary under a higher education salary schedule
shall be assigned the higher salary rate retroactive to the 1st
day of the school year preceding the date the education was
completed. Such adjustment shall be made upon receipt of written
documentation in which the college or university concerned
specifies the date when the teacher completed the advanced
education, or the date when the teacher met the requirements for a
specific degree.
H. Maintain procedure for development of salary schedule for
all unit members who are on the civil service pay scales.
I. Summer school salaries shall be based on the unit member's
regular hourly rate of pay.
J. Any unit member whose employment is terminated by the
Employer will be given a lump sum payment for unused sick leave.
K. Mileage Reimbursement
The use of personally owned vehicles for authorized school
business shall be reimbursed at the rate of 40[ per mile.
L. Health Insurance
The Employer shall pay the full amount of health insurance
premium for each unit member who elects to participate in the
health insurance program. The Employer will pay the premium for
the family coverage portion in the health benefit program if the
unit member desires this additional coverage.
M. Life Insurance Benefit
The Employer shall pay the full amount of life insurance
premium for each unit member. The coverage shall be the basic
life insurance plan. Unit members shall have the option to pay
the premiums for any additional insurance options elected.
N. Unit members will continue to receive all health benefits
currently held which have not been specifically enumerated in
previous articles of this Agreement.
O. Any subsequent benefits provided to the Federal service in
health benefits, insurance benefits, disability and retirement,
sick leave, and workers compensation shall automatically accrue to
the unit members.
Proposal 2
The Association and the Employer agree that the salary increase
for all bargaining unit members will be 13.5% for the school year.
A. Positions of the Parties
The Agency views Proposal 1 and Proposal 2 as mutually exclusive.
Specifically, the Agency claims that Proposal 1 was withdrawn and
replaced with Proposal 2. Thus, the Agency contends that Proposal 1 is
not properly before the Authority. Substantively, the Agency alleges
generally that the proposals do not concern "conditions of employment,"
as defined in section 7103(a)(14) of the Statute and therefore are
outside the duty to bargain under section 7117. The proposals, in the
Agency's view, also interfere with its right to determine its budget
under section 7106(a)(1). The Agency also asserts that the proposals
violate Federal statutes, Agency regulations having the force and effect
of law, and an Agency regulation for which a compelling need exists. In
addition, the Agency alleges that sections L, M, N and O of Proposal 1
are nonnegotiable because they concern matters specifically provided for
by Federal Law.
The Union explains that Proposal 1 concerns the pay-fixing process
for the life of the negotiated agreement and that Proposal 2 provides
for a specific salary increase for a particular school year. See
Memorandum, dated November 8, 1984, enclosed with the Petition for
review. As to the substance the Union asserts that the proposals are
negotiable based on Fort Bragg Unit of North Carolina Association of
Educators, National Education Association and Fort Bragg Dependents
Schools, Fort Bragg, North Carolina, 12 FLRA 519 (1983).
B. Analysis and Conclusion
1. Proposal 1 is properly before the Authority
There is nothing in the record to support the Agency's claim that
Proposal 2 was submitted as a replacement for Proposal 1. In addition,
based on the Union's statement of intent, Proposals 1 and 2 concern
different aspects of the pay-setting process and thus are not mutually
exclusive.
2. Conditions of Employment
The Agency's position, based primarily on the legislative history of
the Statute, is that Congress did not intend to include teachers' pay
among negotiable conditions of employment. This Agency argument was
considered and rejected by the Authority in Fort Bragg Dependents
Schools and subsequent cases. Briefly stated, we have consistently held
that nothing in the Statute or its legislative history prevents
bargaining over 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 involved are not
otherwise inconsistent with law, applicable Government-wide rule or
regulation, or with an agency regulation supported by a compelling need.
See also 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).
Here, the employees covered by the proposals are employed under the
provisions of 20 U.S.C. Section 241. We have previously held that
nothing in 20 U.S.C. Section 241 or in its legislative history, relied
upon by the Agency, indicates that Congress intended to restrict an
agency discretion concerning the particular employment practices
relating to compensation which could be adopted. Fort Knox Teachers
Association and Fort Knox Dependent Schools, 26 FLRA No. 108 (1987),
petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA,
No. 87-3593 (6th Cir. Jun. 25, 1987). Thus, the Agency has not
established that either of the proposals concerns a matter specifically
provided for by law, or that they are outside the Agency's discretion to
adopt.
Moreover, even assuming the correctness of the Agency's position
respecting negotiation of pay matters, the Agency has cited no specific
grounds for finding sections A, C and D of Proposal 1 nonnegotiable.
These sections do not concern the amounts of compensation to be paid
unit employees. Rather, they merely authorize the Union to review and
comment on data used to determine employee salary schedules.
Consequently, even if compensation were found to be a nonnegotiable
matter, sections A, C and D would still be within the Agency's duty to
bargain.
3. Agency's Right to Determine its Budget
To establish that a proposal directly interferes with an agency's
right to determine its budget under section 7106(a)(1) of the Statute,
an agency must make a substantial showing that the proposal requires the
inclusion of a particular program or amount in its budget or that the
proposal will result in significant and unavoidable increases in cost
not affected by compensating benefits. American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to
other matters sub nom. Department of the Air Force v. Federal Labor
Relations Authority 695 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982).
The Agency here contends that finding these proposals negotiable
would result in a significant increase in costs for the entire
dependents school system. It points out that the system is comprised of
seven additional bargaining units with 626 members whose salaries total
$11.3 million. It reasons that, if the proposals are found to be
negotiable, the other units would seek to negotiate on similar
proposals. Statement of Position at 9.
In our view, the Agency's reasoning does not satisfy the requirement
of a substantial showing that the proposal would result in substantial
and unavoidable cost increases not offset by compensating benefits.
While the Agency provides us with the information set forth immediately
above, it does not indicate how many employees would actually be
affected by the proposals or the monetary increase which would be
directly attributable to implementation of the proposals in other
bargaining units within the system. In fact, the Agency does not advise
us of the amount of the increase resulting from the proposals within the
bargaining unit itself. Thus, the Agency has failed to establish that
increased costs could be expected or even that increased costs would be
unavoidable. See Fort Knox Teachers Association and Fort Knox
Dependents Schools, 28 FLRA No. 29 (1987).
The Agency also has failed to show that any increased costs, which it
asserts are unavoidable, would not be offset by compensating benefits.
Instead, it contends that Congress' action in exempting teachers from
statutes governing pay and certain benefits for Government employees
constitutes a finding that increases in teachers' pay are not offset by
compensating benefits. Statement of Position at 8-9. We find this
argument unpersuasive. Even assuming that the congressional action had
the implications suggested by the Agency, the legislative action was
based on the cost differential between existing pay and personnel
practices under title 5 U.S. Code and those subsequently embodied in 20
U.S.C. Section 241. The congressional action therefore cannot be
construed to cover the alleged cost increases which would result from
implementing these proposals within this bargaining unit. See Fort Knox
Dependents Schools, 28 FLRA No. 29 (1987). Furthermore, as we noted in
section B.2, above, nothing in 20 U.S.C. Section 241, or in its
legislative history as relied upon by the Agency, indicates that
Congress sought to restrict the Agency's choice in adopting a particular
employment practice relating to pay and fringe benefits not otherwise
provided for by law. Moreover, as to the requirement that per pupil
expenditures in dependents schools be limited to the amounts expended by
comparable communities in the same state, the Authority held in Fort
Bragg Dependents Schools, 12 FLRA 519 that employee compensation is but
one of the factors to be considered in determining whether the
limitation has been exceeded.
Finally, the Authority also noted in Fort Bragg Dependents Schools 12
FLRA 519, 523, that while the consequences of a proposal necessarily are
considered in the collective bargaining process, "should matters of
concern to the Agency, such as cost, prevent the parties from reaching
agreement, that consideration could be presented to the Federal Service
Impasses Panel in a proceeding to resolve a negotiation impasse pursuant
to section 7119 of the Statute."
4. Procurement Law and Regulations
The Agency asserts that the proposals violate law, specifically 10
U.S.C. Section 2304 concerning the solicitation of contract bids in the
procurement process. The Agency also contends that the proposals
violate Government procurement regulations having the force and effect
of law, which govern the negotiation and administration of procurement
contracts, namely the Federal Acquisition Regulation. In effect, the
Agency argues that the "personal services contracts" under which
bargaining unit employees are hired must be awarded in conformity with
procurement law and related Federal regulations, and that bargaining
over pay and related fringe benefits is inconsistent with those
statutory and regulatory requirements.
We find that claim to be without merit. Essentially the same claim
was raised by the Agency and rejected in Fort Knox Teachers Association
and Board of Education of the Fort Knox Dependents Schools, 27 FLRA No.
34 (1987). In that case, we noted the well-established principle that
teachers employed under 20 U.S.C. Section 241 are not independent
contractors but, rather, are employees of the Federal Government,
subject to all statutes governing Government employment unless expressly
exempted. Consequently, we determined that the Agency had failed to
demonstrate that procurement law and regulations applied in any manner
to, or governed the employment relationship of, teachers employed in the
dependents school system. Similarly, the Agency in this case has failed
to show that procurement law and regulations govern bargaining unit
working conditions.
5. The "Antideficiency Act"
The Agency contends that, because the proposals would obligate it to
expend certain funds for salaries and other benefits in a succeeding
fiscal year, they violate provisions of the "Antideficiency Act" (the
Act), 31 U.S.C. Section 1341.
In Fort Knox Dependents Schools, 27 FLRA No. 34, we examined a
similar argument in response to a proposal concerning both paid and
unpaid leave. In rejecting the Agency's contention that Proposal 4 in
the cited case violated the Act, we noted that the Comptroller General,
in interpreting the Act, has held that "salaries of Government
employees, as well as related items that flow from those salaries such
as retirement fund contributions, are obligations of the Government at
the time they are earned, that is, when the services are provided." In
this case, insofar as the proposals can be said to concern specific
sums, there is no obligation to make payments until the specific service
is rendered by the unit employee. Hence, there is no showing that the
proposals violate the Act.
6. Agency Regulation
The Agency asserts that the proposals violate Army Regulation (AR)
352-3, an Agency regulation for which it alleges a compelling need
exists under section 2424.11(c) of the Authority's Rules and
Regulations. Specifically, the Agency states that its regulation
requires equality, to the maximum practicable extent, between the
conditions of employment in the bargaining unit and those of teachers in
comparable school systems in Georgia where Fort Stewart is located. In
support of its position, the Agency cites 20 U.S.C. Section 241(a)(2)
which obligates the Agency to take whatever action is necessary to
ensure that the education provided by its schools is comparable to that
provided to children in similar communities in the same state.
Substantially the same argument was raised by the Agency to support
its claim that there was a compelling need for AR 352-3 to bar
negotiation of Proposal 4 in Fort Knox Dependents Schools, 27 FLRA No.
34. In that case, we found "nothing in either the law or its
legislative history which persuades us that Congress intended to
restrict the Agency's discretion as to the particular employment
practices which could be adopted." Consequently, we held that the Agency
failed to sustain its burden of showing a compelling need for AR 352-3.
Moreover, even assuming the Agency had supported its compelling need
argument here, it has not shown how sections A through G, I and J of
Proposal 1, which assume that pay rates will be fixed in accordance with
pay practices in comparable schools systems, conflict with AR 352.3
7. Section L and M of Proposal 1
Sections L and M of Proposal 1 would require, respectively, that the
Agency provide health insurance and basic life insurance free of cost to
employees. These two sections are to the same effect as Proposals 14
and 17 found nonnegotiable in Fort Bragg Unit of North Carolina
Association of Educators, National Education Association and Fort Bragg
Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519 (1983).
Noting that Federal Law limits the amount of the employer's contribution
toward the cost of health insurance, and specifically requires employees
to contribute toward the cost of life insurance, the Authority held that
the two proposals addressed matters provided for by Federal statutes.
Because the statutory provisions cited in Fort Bragg Dependents Schools
remain in effect, we must likewise find that sections L and M of
Proposal 1 here concern matters provided for by law.
8. Sections N and O of Proposal 1
Section N of Proposal 1 would continue all health benefits currently
accruing to employees even though not specifically referred to in the
negotiated agreement. Section O would ensure that all subsequent
miscellaneous benefits bestowed on the Federal service would also be
received by unit employees. The Agency's position appears to be that,
because the sections concern matters covered by law, the two sections
are not properly included in the negotiated agreement. We disagree. In
National Treasury Employees Union and Internal Revenue Service, 3 FLRA
693 (1980) (Proposals II and III), two proposals sought to incorporate
statutory provisions governing prohibited personnel practices and merit
system principles into the parties' agreement. In that case the
Authority held that the union could appropriately incorporate provisions
of law in the negotiated agreement for the purpose of enforcing them by
means of the negotiated grievance procedure. Here, the disputed
sections seek to ensure that employees receive the enumerated benefit to
which they are, or may be, entitled under law. Consequently, the
reasoning set forth in Internal Revenue Service is applicable to
sections N and O.
C. Conclusion
In accordance with the reasons and cases cited, Proposal 1, with the
exception of sections L and M, and Proposal 2 do not conflict with law,
applicable Government-wide regulations, or with Agency regulations for
which there is a compelling need. Therefore, Proposal 1 with the
exception of sections L and M, and Proposal 2 are within the duty to
bargain. Sections L and M of Proposal 1 are inconsistent with Federal
law and consequently are outside the duty to bargain under section
7117(a)(1) of the Statute.
III. Proposal 3
Proposal 3 concerns various types of leave. Because of its length,
the proposal appears in an Appendix to this decision.
A. Positions of the Parties
The Agency takes the position that, with the exception of the section
concerning leave without pay (section F), Proposal 3 addresses
money-related fringe benefits and therefore is nonnegotiable for the
same reasons as stated with regard to the Union's salary and benefits
proposals. Section F assigns responsibility for approving leave without
pay requests to the requester's immediate supervisor. Based on American
Federation of Government Employees, ALF-CIO, Local 32 and Office of
Personnel Management, 14 FLRA 278 (1984), affirmed sub nom. Local 32,
American Federation of Government Employees v. FLRA, 762 F.2d 138 (D.C.
Cir. 1985), among other cases, a proposal, such as section F, which
prescribes a specific function to be performed by a person outside the
bargaining unit is not within the duty to bargain.
The Union contends that this proposal also falls within the holding
of Fort Bragg Dependents Schools, 12 FLRA 519 and consequently, it is
negotiable.
B. Analysis and Conclusion
The issue of whether the various types of leave for teachers in the
Agency's dependents schools are appropriate subjects for bargaining was
examined in Fort Knox Dependent Schools, 26 FLRA No. 108. The first
part of the disputed proposal in that case sought to establish the unit
employees' right to sabbatical leave after 10 years' continuous service
at Fort Knox. In deciding that the first part of the proposal was
negotiable, we held that it "concerns a condition of employment about
which the Agency has discretion under 20 U.S.C. Section 241. Further,
the first portion of the proposal does not conflict with 20 U.S.C.
Section 241 or with an Agency regulation for which a compelling need has
been established by the Agency." Consequently, based on the reasoning
and cases cited in Fort Knox Dependent Schools, all but section F of
Proposal 3 is within the duty to bargain.
Section F of Proposal 3 authorizes leave without pay (LWOP) for unit
members. It further provides that LWOP "may be approved at the
discretion of the immediate supervisor." The Agency contends that the
latter requirement is an impermissible intrusion on its reserved right
to assign work. We agree. In American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA
278 (1984), affirmed sub nom. Local 32, American Federation of
Government Employees v. FLRA, 762 F.2d 138 (D.C. Cir. 1985), the
disputed proposal sought to require that any grievance initiated by the
agency be signed by the agency head. The proposal was held to violate
section 7106(a)(2)(B) of the Statute because it prescribed specific
duties which particular nonbargaining unit personnel in the agency would
perform. It was further noted that the proposal would effectively
preclude management's assigning the duty referenced in the proposal to
any other person, thereby eliminating the discretion inherent in
management's right to assign work.
Here, section F of the proposal would assign approval authority for
LWOP to specific management officials. Under its terms such authority
could not be assigned to higher level officials who might be better
positioned to assess the impact of a grant of LWOP upon the overall
effectiveness of operations. Consequently, based on the reasoning and
case cited in Office of Personnel Management, we find that section F of
Proposal 2 is outside the duty to bargain because it is inconsistent
with management's right to assign work under section 7106(a)(2)(B) of
the Statute.
However, we note that if this section were revised to preserve
management's right to designate the individual who would approve
requests for LWOP, 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 No. 14, slip op. at 13 (1987).
IV. Order
The Agency must upon request or as otherwise agreed to by the
parties, negotiate over: Proposal 1 with the exception of sections L
and M; Proposal 2; and Proposal 3, except for section F. /2/ The
petition for review is dismissed insofar as it pertains to sections L
and M of Proposal 1 and section F of Proposal 3.
Issued, Washington, D.C., July 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree with my colleagues that the issues in this case are
essentially the same as those in Fort Knox Teachers Association and Fort
Knox Dependent Schools, 26 FLRA No. 108 (1987), petition for review
filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th
Cir. June 25, 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 these
matters are not within the duty to bargain. In this case, Proposal 1,
subsections A, D, E, F, G, I, J, K, N, and O, Proposal 2, and Proposal 3
concern wages and money-related fringe benefits. Because I find no
expression of congressional intent in this case that these matters be
negotiable, I would find these proposals to be outside the duty to
bargain. I note, however, with respect to subsections A and D of
Proposal 1 that consistent with the Authority's decision concerning
Proposal 4 in Illinois Nurses Association and Veterans Administration
Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987), I would
find negotiable a proposal which simply required the Agency to provide
information to and consult with the Union on these matters.
I am unable to determine the meanings of subsections B, C, and H of
Proposal 1 from the record in this case. In my view, there is
insufficient information on which to make a negotiability determination
on these subsections. I would dismiss the Union's petition as to them.
In addition, I note that subsection C(6) of Proposal 3 is similar to
section 8(g) of Provision 10, which the Authority found to be negotiable
in American Federation of Government Employees, AFL-CIO, Local 1770 and
Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North
Carolina, 28 FLRA No. 66 (1987). Unlike the provision in that case,
which required the continuation of insurance premiums "in accordance
with Federal regulations," Proposal 3 in this case does not refer to
applicable regulations. As such, it would constitute an independent
contractual requirement concerning the matter in my view.
I agree with my colleagues that subsections L and M of Proposal 1
concern matters provided for by Federal law.
Issued, Washington, D.C., July 31, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) Chairman Calhoun filed a separate opinion agreeing in part and
dissenting in part from the decision in this case.
(2) In finding these matters negotiable we make no judgment as to
their respective merits.
APPENDIX
Proposal 3
Article 11: Leave
Section 1. Sick and annual leave for Unit Members whose
services are required for twelve (12) months will accrue and be
granted in accordance with the Annual and Sick Leave Act of 1951,
as amended 5 USC Chapter 63 and applicable Civilian Personnel
Regulations.
Section 2. Sick leave, annual leave, administrative, and other
types of leave for those Unit Members whose services are not
required for twelve (12) months will be administered as follows:
A. Sick Leave. Unit members shall accumulate sick leave at a
rate of four (4) hours per pay period not to exceed thirteen (13)
days shall be accredited to Unit Members at the beginning of the
school year. Sick leave will accumulate without limit and can be
taken for any time during the school year, but payment for sick
leave taken in excess of that earned will be recovered. No
accrued sick leave shall be carried over to any succeeding period
when there is a break in federal employment in excess of three (3)
continuous years.
1. Sick leave will be granted for the following purposes:
(a) medical, dental or optical examination or treatment;
(b) sickness or injury;
(c) medical disability connected with pregnancy;
(d) exposure to a contagious disease;
(e) illness of a member of the immediate family or near
relative who resides in the same household or for whom the
employee is financially responsible;
(f) death of an immediate family member or near relative.
2. As used in this section, immediate family shall mean
spouse, grandparent, parent-in-law, child, grandchild, or sibling.
Near relative shall include immediate family and extend to first
cousin, aunt, uncle, niece, nephew, brother-in-law,
daughter-in-law, or son-in-law.
3. In the cases requiring a substitute teacher, absence
chargeable to sick leave will be for not less than four (4) hours.
When no substitute is employed, sick leave will be taken in
multiples of one hour. The decision as to whether a substitute is
required shall be made solely by management officials.
4. Unit members must obtain approval from the principal before
sick leave that has not been accrued can be used.
5. Unit members may be required to provide a doctor's
statement in the case of a period of absence which exceeds five
(5) consecutive days.
6. Upon retirement, credit for unused sick leave shall be
administered in accordance with FPM Supplement 831-1 Subchapter
S3-7.
7. The Employer and Association shall meet by November fifteen
(15) to discuss the establishment of a sick leave bank.
B. Personal Leave
1. During any school year, a unit member may utilize up to a
maximum of three days of accumulated sick leave for personal
reasons. Notification of the use of such leave will be made one
(1) day in advance. Two (2) days of personal leave may be carried
over to the next year for a maximum of five (5) personal days.
2. No personal leave will be taken on the day before or
immediately after spring vacation, testing days, nor on inservice
days or conference days unless such leave has been approved by the
Superintendent.
3. Personal leave will be for not less than four (4) hours in
those cases where a substitute teacher is employed. When no
substitute is employed, personal leave will be taken in multiples
of one hour. The decision as to whether a substitute is required
shall be made solely by management officials.
C. Professional Leave of Absence. Professional leave of
absence may be granted by the Employer subject to the following:
1. After five (5) years of continuous service at Fort Stewart,
sabbatical leave of absence without pay may be granted for up to
one (1) employee per school year at the discretion of the
Employer. Such leave shall be granted for the purpose of advanced
study, research, professional writing, or other experience of
recognized value in an employee's respective field.
2. Applications will be submitted to the Superintendent of
Schools not later than 1 April of the school year prior to the
year the leave is to be taken. Applications will include:
(a) reason for leave;
(b) proposed length of time;
(c) where leave will be spent;
(d) outline of studies of activities to be taken.
3. Professional leave of absence will normally be granted for
one (1) school year. Leave may be granted for a semester.
4. While in a leave status, employees will not be eligible to
accrue sick leave but will be entitled upon return to duty to any
sick leave accrued prior to the professional leave. Upon return
to duty, the employee will be entitled to advance one (1) step on
the salary schedule, if the studies or activities as proposed when
the leave was granted have been completed.
5. Unit members will not accrue seniority but will be entitled
upon return to duty any seniority accrued prior to the
professional leave.
6. While in a leave status employees may continue their
participation in the health and life insurance programs by payment
of required premiums.
7. Unit members may utilize up to a maximum of five (5) days
with pay per school year for education related purposes, such as
school visitations, conferences, and workshops. Approval for the
leave shall be granted by the Superintendent.
D. Court Leave. Employees serving on jury duty or subpoenaed
to court shall be carried on court leave without financial loss or
loss of sick or annual leave.
1. An employee on court leave may not receive fees for jury
service on regular workdays in a Federal court. The employees may
receive and retain fees for such duty performed on nonworkdays or
on holidays on which the employee would otherwise have been
excused from work.
2. An employee on court leave will acept fees received from
state or municipal courts and turn them in to the Civilian Pay
Section of Fort Stewart Finance and Accounting Office. The
employee may retain pay received for travel and subsistence
expenses. Fees received for jury duty service performed outside
normal duty hours or no holidays on which the employee would
otherwise have been excused may be retained.
E. Maternity/Paternity/Adoption Leave. Maternity, paternity,
and adoption leave will be administered as follows:
1. For female employees having a child, accumulated sick leave
may be used one and one half (1 1/2) months prior to having the
child upon presentation of a certificate of incapacity. Once the
child is delivered the employee may use sick leave up to a period
of one and one half (1 1/2) months after the child is delivered.
Once the one and one half (1 1/2) months of sick leave have been
exhausted and the employee still desires further time away from
work, the employee will be granted leave without pay. In no case
will leave without pay be granted for more than one (1) year.
2. For male employees who desire to stay at home with their
child, leave without pay may be granted for a period not to exceed
one (1) year. A male employee may also make use of personal leave
(see Section 1, paragraph b of this Article) for paternity leave.
3. For any employee who desires to stay at home with an
adopted child, leave without pay may be granted for a period not
to exceed one (1) year. Leave without pay may be taken prior to
finalization of the adoption if such leave is necessary to take
part in court proceeding or other action relating to the adoption.
Personal Leave (Section 1, paragraph b of the Article) may also
be utilized.
4. An employee shall make known intent to request leave
including the type of leave, approximate dates, and anticipated
duration to allow the Employer to prepare for any staffing
adjustments which may be necessary.
F. Leave Without Pay (LWOP).
1. LWOP is requested by an employee and may be approved at the
discretion of the immediate supervisor.
2. Leave without pay may be granted to unit members for the
following reasons:
(a) educational leave or travel;
(b) such other reasons as are approved by the Superintendent
3. The minimum charge of LWOP is one (1) hour and additional
charges in multiples of one (1) hour.
4. Maximum amount of LWOP that may be taken during one (1)
school year is one (1) month except as provided in Section 1,
paragraph e (Maternity/Paternity/Adoption Leave).
28 FLRA NO. 66
AFGE, Local 1770, and Dep't of the Army, Fort Bragg Dependent
Schools, Fort Bragg, N.C., Case No. 0-NG-1030 (Decided July 31, 1987)
STATUTE
7103(a)(9)
7105(a)(2)(D), (E)
7106(a)(1); (a)(2)(B); 7106(a)(2)(C); 7106(b)(3)
7114(a)(2)(A), (C)
7117(a)(1), (2)
7121; 7121(f)
SUBJECT MATTER INDEX ENTRIES
APPROPRIATE ARRANGEMENTS
FILLING POSITIONS DURING A RIF
FOUND APPROPRIATE ARRANGEMENTS
REDUCTION-IN-FORCE ARRANGEMENTS
ASSIGN EMPLOYEE, RESERVED MGM'T RIGHT
DETAILS
DURATION
LOCATION OF PERFORMANCE
REASSIGNMENTS
AFTER FAMILY LEAVE
ASSIGN WORK, RESERVED MGM'T RIGHT
DETAILS
ELEMENTS OF THE RIGHT TO ASSIGN
DUTIES AND WORK TO BE ASSIGNED
PROHIBITING ASSIGNMENT OF WORK IN SPECIFIC CIRCUMSTANCES
TIMING OF WORK ASSIGNMENTS
DURATION OF PARTICULAR ASSIGNED DUTIES
HEALTH AND SAFETY
BUDGET, RESERVED MGM'T RIGHT
TEST OF DIRECT INTERFERENCE
COSTS NOT OFFSET BY BENEFITS
COST OF FEDERAL REGULATIONS
29 C.F.R. 1613.213(a)
29 C.F.R. 1960.46(a)
32 C.F.R. SUBCHAPTER A, PARTS 1-39
COMPENSATION SYSTEM
AUTHORITIES GOVERNING PAYMENT TO FEDERAL EMPLOYEES
20 U.S.C. 241 (EDUCATIONAL PERSONNEL)
20 U.S.C. 901 et. seq. (DOD OVERSEAS TEACHER PAY)
WAGES/SALARY RATES/FRINGE BENEFITS
BUDGET
WAGES AND BENEFITS NOT "SPECIFICALLY PROVIDED FOR"
EDUCATIONAL PERSONNEL (20 U.S.C. 241(a))
COMPTROLLER GENERAL LETTERS AND DECISIONS
38 COMP. GEN. 316 (1958)
FRINGE BENEFITS
INSURANCE PREMIUMS, CONTINUATION OF
WHILE ON FAMILY LEAVE
GOVERNMENT-WIDE RULES OR REGULATIONS
FOUND OR AFFIRMED TO BE GOV'T-WIDE
29 C.F.R. 1960.46(a)
GRIEVANCE PROCEDURE, NEGOTIATED
GRIEVABILITY/ARBITRABILITY
TERMINATION/SEPARATION/REMOVAL
HEALTH AND SAFETY
HAZARDS, IDENTIFICATION AND NOTIFICATION OF
MGM'T RIGHTS, CONDITIONS ON THE EXERCISE OF
HAZARDOUS CONDITIONS, ABSENCE OF
OSHA REGULATIONS
HOURS OF WORK
REST PERIODS AND BREAKS
ASSIGNMENT OF WORK DURING BREAKS
LEAVE
ANNUAL LEAVE OR VACATION PAY
FAMILY LEAVE
MATERNITY OR PATERNITY LEAVE
SICK LEAVE AND SICK PAY
WEATHER-RELATED TERMINATION OR CANCELLATION OF SHIFTS
POSITIONS, FILING OF
PRIORITY OR PREFERENTIAL TREATMENT
BARGAINING-UNIT EMPLOYEES
REDUCTIONS-IN-FORCE OR FURLOUGHS
PREMIUM PAY
OVERTIME
EDUCATIONAL PERSONNEL (20 U.S.C. 241(a))
REDUCTION-IN-FORCE
APPROPRIATE ARRANGEMENTS
FILLING POSITIONS DURING OR FOLLOWING A RIF
FILLING POSITIONS ONLY WITH THOSE WHO WOULD BE SEPARATED
PREFERENTIAL TREATMENT FOR EMPLOYEES AFFECTED BY THE RIF
REASSIGNMENT OF EMPLOYEES WHO WOULD BE RIFED OTHERWISE
UNITED STATES CODE
5 U.S.C. 4303
5 U.S.C. 7512
10 U.S.C. 2304
18 U.S.C. 4204(a)(2)
20 U.S.C. 241
41 U.S.C. 601-13 (CONTRACT DISPUTES ACT)
DIGEST NOTES
The Authority considered thirteen provisions of a locally-negotiated
agreement disapproved by the agency's head in this negotiability appeal.
A negotiable provision would permit the filing of Equal Employment
Opportunity complaints through the negotiated grievance procedure. The
agency objected to this, arguing that its teachers were employed under
personal services contracts, and that, therefore, disputes concerning
the teachers' conditions of employment must be resolved exclusively
under the Contract employment must be resolved exclusively under the
Contract Disputes Act. The Authority rejected this argument, citing
precedent that persons employed under 20 U.S.C. 241, as are these
teachers, are not employed under personal services contracts. (section
4, provision 1) A negotiable section would provide that the union and
the agency retain their statutory appeals rights regarding EEO
complaints. The agency had not alleged that the section was contrary to
law, rule, or regulation. (section 7) A negotiable section would allow
the union representation at all discussions concerning an EEO complaint
between the agency and the employee. (section 8, provision 1)
A provision dealing mainly with overtime was held to be partly within
and partly outside the duty to bargain. The following sections were
ruled negotiable: a segment which would require overtime pay or
compensatory time for any overtime work (section 3, provision 2); a
segment which would require overtime compensation for at least two hours
whenever an employee was called back to work outside of normal duty
hours, whether or not two hours of overtime work was required (sentences
1 and 3, section 6); and a segment which would provide overtime
compensation for any work performed before or after regular hours
(section 7). The Authority noted that the employees involved were
covered by 20 U.S.C. 241 and hence not subject to the statutes and
regulations governing overtime for other federal employees. The
Authority determined that the sections did not interfere with the
agency's section 7106(a)(1) right to determine its budget, and rejected
the agency's compelling-need argument. A section calling for the
equitable offering of overtime also was ruled within the duty to
bargain. (section 4) A requirement that employees called in to work
outside of their normal hours be excused upon completion of the work for
which they were summoned was ruled outside the duty to bargain, as an
interference with the agency's section 7106(a)(2)(B) right to assign
work. (sentence 2, section 6, provision 2)
A nonnegotiable section would have required the cessation of work in
emergencies wherein an employee believed his life or health to be in
immediate danger, and would have provided that the cessation continue
until certain procedures had been followed. The Authority ruled the
provision inconsistent with an OSHA regulation, 29 C.F.R. 1960.46(a), a
government-wide regulation. (section 2, provision 3) A nonnegotiable
section would have prohibited the return to duty of an employee
suffering from job-related injury or illness until an agency medical
officer or doctor determined he was fit to return. The Authority ruled
the requirement an interference with the section 7106(a)(2)(B) right to
assign work. (section 4, provision 3)
A negotiable section of a provision would require the agency to give
priority consideration to qualified unit employees in filling vacancies.
Because the provision would not require the agency to select a unit
employee, it was negotiable. (section 7, provision 4)
A provision dealing with details was ruled outside the duty to
bargain. Four sections would have limited details to same- or
lower-graded positions (sections 2, 3, 4, and 6, provision 5). These
were ruled nonnegotiable because they would have placed specific
limitations on the duration of details; such restrictions on the length
of assignments, said the Authority, interfere directly with management's
section 7106(a)(2)(A) right to assign employees. The Authority held
that the sections did not constitute appropriate arrangements for
employees adversely affected by such assignments. Likewise ruled
nonnegotiable was a section which would have prohibited the detailing of
an employee as a means of avoiding the filling of a position by
promotion. The Authority held that the prohibition constituted a
violation of management's right to assign employees, and that it was not
an appropriate arrangement. (section 7, provision 5)
A section of a provision which would define the term "grievance" was
ruled within the duty to bargain. The Authority rejected the agency's
personal-services contract argument against the provision as
inapplicable. (section 2, provision 6)
A provision dealing with reductions-in-force (RIF's) was held to be
within the duty to bargain. A negotiable section would define the term
"reduction-in-force" for its use by the parties. (section 1, provision
7) A negotiable section would require the agency to select employees who
otherwise would be terminated in a RIF to fill vacancies which the
agency had decided to fill. The Authority ruled the provision an
appropriate arrangement for employees adversely affected by a RIF.
(section 4) A negotiable section would require the agency to consider
all unit positions within the agency's school system when it decides to
implement a RIF. The Authority noted that the section would not require
the agency to abolish any particular position. (section 5) A section
which would require the agency to fill positions from a list of
employees affected by a RIF, after the agency had decided to fill
positions affected by a RIF, was ruled negotiable, as an appropriate
arrangement. (section 6) A negotiable section would require the agency
to offer a RIFed employee a salary close to the level of that which he
earned prior to the RIF when a position for which he qualified became
available. The Authority noted that the section would not require
management to offer such a position to a RIFed employee if it decided
not to fill the vacancy. (section 9, provision 7)
A nonnegotiable provision would have prohibited the agency from
assigning work to employees during rest periods. The Authority ruled
the provision a direct interference with the right to assign work.
(section 1, provision 8)
A nonnegotiable subsection of a provision would have required the
agency to reassign employees returning from family leave to their former
positions and duty stations. The Authority ruled the subsection a
violation of management's right to assign employees. (section 8(e),
provision 10) A negotiable subsection would require the agency to
continue hospitalization and life-insurance premiums for employees on
family leave. The agency's independent-contractor argument was
rejected, as it had been in regard to previous provisions (section 8(g),
provision 10)
A nonnegotiable provision dealt with procedures to be followed in
severe weather. A subsection which would have required that teachers be
excused as soon as possible after dismissing students was ruled
nonnegotiable, as an interference with the right to assign work.
(subsection 3(a), provision 11) A section which would have prohibited
the agency from requiring employees to work in extreme heat or cold also
was deemed a violation of the right to assign work. (section 4,
provision 11)
Two negotiable provisions would subject the termination of
career-status employees to the negotiated grievance and arbitration
procedures. The first would create two categories of employees,
probationary and career, and would provide that career employees --
those with one year or more of service -- could not be terminated,
except for just cause. (provision 12) The second would require the
agency to administer disciplinary proceedings and penalties fairly and
equitably. (provision 13) The Authority rejected the agency's
independent-contractor argument against the provisions.
A negotiable provision concerned the administration of annual and
sick leave. As the employees involved were employed under 20 U.S.C.
241, their pay and fringe benefits were not "specifically provided for"
by law, and thus were conditions of employment and negotiable. The
Authority rejected the agency's argument that the provision violated the
Antideficiency Act. (provision 9, majority opinion)
A negotiable subsection of a provision would provide for a leave of
absence of up to a year for an employee upon the birth or adoption of a
child. The Authority ruled that matters of leave administration are
within the discretion of the agency for employees covered by 20 U.S.C.
241, and that the provision was therefore within the duty to bargain.
(section 8(f), provision 10, majority opinion)
Case No. 0-NG-1030
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1770
Union
and
DEPARTMENT OF THE ARMY FORT BRAGG DEPENDENT SCHOOLS FORT BRAGG, NORTH
CAROLINA
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 the following provisions of a locally negotiated
agreement disapproved by the Agency head under section 7114(c) of the
Statute. /1/
II. Provision 1
Article Seven -- Equal Employment Opportunity
Section 4.
The Employer will carefully consider and adjudicate complaints
of discrimination filed through the Agency EEO (Equal Employment
Opportunity) procedures or the Negotiated Grievance procedure.
Section 7.
Both Union and Management retain all rights existing under
applicable statutory appeals procedures concerning an EEO
complaint.
Section 8.
The Union will have the right to have reasonable
representation, which will normally not exceed the number of
Employer representatives, present at all formal discussions
between the Employer and an Employee concerning an EEO complaint.
A. Positions of the Parties
The Agency states as to Provision 1 and certain other provisions at
issue in this case, that it may or may not be negotiable depending upon
the intent of the parties. Agency Statement of Position at 7. In
particular, the Agency indicates that it would approve Sections 4, 7,
and 8 if the Union accepts its explanation of their meaning. According
to the Agency, these sorts of disputes are better handled by the local
parties than in the contract disapproval process.
The Agency contends that, to the extent that Section 4 would allow an
employee to file an EEO complaint through the negotiated grievance
procedure over a dispute arising out of an employee's personal services
contract, that section 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 that the procedures contained in that Act be the exclusive
method for resolving disputes arising out of Government contracts.
The Agency claims that, as to Section 7, individuals employed under
20 U.S.C. Section 241 have no statutory right to appeal matters
concerning an EEO complaint to the Merit Systems Protection Board
(MSPB), and that the only applicable statutory appeal procedure
available to these individuals is through the Agency EEO complaint
procedure to the Equal Employment Opportunity Commission (EEOC).
The Agency cites Internal Revenue Service, Fresno Service Center,
Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983), which held
that a union has no right under section 7114(a)(2)(A), pertaining to
formal discussion, to be present at EEO precomplaint conciliation
conferences. The Agency also refers to applicable regulations
pertaining to such precomplaint conferences. 29 C.F.R. Section
1613.213(a). The Agency claims that Section 8, to the extent that it
purpots to provide the Union with a right to representation at an EEO
precomplaint conciliation conference, conflicts with the above-cited
authorities and therefore is nonnegotiable.
The Union claims that section 7114(c) of the Statute does not
authorize conditional disapprovals by an agency head of provisions of a
local agreement. Union Response at 4 and 37. The Union also states
generally that conditional disapprovals frustrate the will of Congress
and unnecessarily burden the labor relations process.
The Union essentially contends that Section 4 is proper under section
7121 of the Statute because it concerns conditions of employment of unit
employees as defined under section 7103 of the Statute, rather than
matters which are covered by 41 U.S.C. Sections 601-13.
The Union does not dispute the Agency's contention that employees
have no statutory right to appeal EEO matters to MSPB but contends that
the Agency has not demonstrated that Section 7 violates any law, rule,
or regulation.
The Union claims that Section 8, which is applicable to all formal
discussions, is not inconsistent with any law, rule, or regulation.
B. Analysis and Conclusion
Section 4
Section 4 would permit an employee to file an EEO complaint through
the negotiated grievance procedure. The Agency's contention as to this
section is based on its view that because personal services contracts
are utilized to employ the employees in this case, any dispute over the
terms and conditions of employment set out in those contracts must be
resolved exclusively under the Contract Disputes Act.
The employees in this case are employed by the Agency pursuant to 20
U.S.C. Section 241. In Fort Knox Teachers Association and Board of
Education of the Fort Knox Dependents Schools, 27 FLRA No. 34 (1987)
(Provision 2), which involved a similar issue, we found that the
Contract Disputes Act did not bar the agency from negotiating over a
provision which subjected employee complaints to the negotiated
grievance procedure. In so finding, we determined that individuals
employed under 20 U.S.C. Section 241 are employees of the Government
subject to all statutes pertaining to Government employment unless
specifically exempted; that there was nothing in the Statute or its
legislative history to indicate that Congress sought to exclude
individuals employed under 20 U.S.C. Section 241 from its coverage; and
that there was no provision in the Contract Disputes Act indicating that
Congress intended to include the Statute among the provisions of law
which were either amended or repealed by that Act. We therefore
concluded that the employees in that case, who were employed under 20
U.S.C. Section 241, could negotiate a grievance procedure under section
7121 of the Statute which, according to section 7103(a)(9), may
encompass any "matter relating to the employment of the employee" or
"any claimed violation, misinterpretation, or misapplication of any law,
rule, or regulation affecting conditions of employment."
As previously noted, Section 4 would subject a employee's EEO
complaint, a matter affecting conditions of employment, to the
negotiated grievance procedure. For the reasons expressed in Fort Knox
Dependents Schools, we find that Section 4 is within the duty to
bargain.
Section 7
Section 7 would permit the Union and management to retain all rights
existing under applicable statutory appeals procedures concerning an EEO
complaint. The Agency does not specifically contend that Section 7
would conflict with any law, rule, or regulation.
As mentioned in Section I of this decision, the Agency head
disapproved the provisions in this case, including Section 7, under
section 7114(c) of the Statute. Section 7114(c) requires that the
agreement be approved if it is in accordance with the Statute and any
other applicable law, rule, or regulation. The Agency head did not
disapprove Section 7 on the grounds that it was inconsistent with law,
rule, or regulation, nor does it make those contentions in this
proceeding. Therefore, under section 7114(c), the Agency head's
disapproval was improper. See 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 4).
Section 8
Section 8 would permit the Union to have reasonable representation at
all formal discussions between the employer and an employee concerning
an EEO complaint. Section 8 on its face expressly limits Union
representation only to formal discussions involving complaints of
discrimination. We interpret the phrase "formal discussions" to have
the same meaning as in section 7114(a)(2)(A) of the Statute. Section 8
does not permit Union representation at informal precomplaint
conciliation conferences.
The Agency relies on IRS, Fresno Service Center v. FLRA as a basis
for its disapproval of Section 8. That case concerned whether a union
had a right under section 7114(a)(2)(A) of the Statute to be represented
at an EEO precomplaint conciliation conference. Apart from other
considerations, IRS, Fresno Service Center would not apply to Section 8
since that section does not pertain to an EEO precomplaint conciliation
conference but rather only deals with formal discussions concerning an
EEO complaint. The Agency has not cited any other grounds for finding
this section to be nonnegotiable, and no others are apparent. We
therefore find Section 8 to be within the duty to bargain.
Finally, turning to the issue of the Agency's conditional disapproval
of Sections 4, 7, and 8, as well as other provisions at issue in this
case, section 7114(c) of the Statute does not require the agency to
disapprove provisions of a locally negotiated agreement only where it is
certain of the meaning of those provisions. However, as the Authority
emphasized in American Federation of Government Employees, AFL-CIO,
council of Prison Locals, Local 171 and Department of Justice, Federal
Prison System, Federal Correctional Institution, El Reno, Oklahoma, 23
FLRA No. 29 (1986), where the wording of a provision is clear and the
union's statements of its intent are clear and unequivocal, the agency
should not disapprove the provision on the grounds the provision may
have some other meaning. These clear indications of the meaning of the
provision should be sufficient to remove the basis of the Agency's
objections. We reemphasize here the points made by the Authority in
Federal Correctional Institution.
III. Provision 2
Article Ten -- Hours of Work and Overtime
Section 3. The Employer agrees that officially approved
overtime work shall be compensated at the appropriate overtime
rate to include any shift differential or additional pay to which
the Employee is entitled, or compensatory time given off at the
election of the Employee.
Section 4. The Employer agrees that the opportunity to work
overtime will be equitably offered to all qualified employees
within the trade or occupation within an organizational element.
Section 6. Normally, Employees called in to work outside their
regularly scheduled hours shall be compensated for a minimum of
two (2) hours in accordance with appropriate regulations
regardless of whether the Employees are required to work or not.
In addition thereto, any Employee called in to work outside his
regularly scheduled hours shall be promptly excused at the
completion of the mission which he was called in to perform. It
is understood that any Employee who is called in before his
scheduled starting time, and works straight on to his scheduled
quitting time, is entitled only to that amount which will be
compensated by the compensatory time off or payable at the
overtime pay.
Section 7. Employees in the Unit shall not be required to
perform any work or duty before or after their scheduled work
hours without compensating the Employee by overtime pay or
compensatory time in accordance with appropriate regulations for
such work or duty. It is further understood that, if any Employee
is directed by the Employer to report at a designated location at
a specified time prior to or subsequent to his scheduled shift
hours, such time shall be considered compensable at the existing
overtime rate or compensatory time rate in accordance with
appropriate regulations.
A. Positions of the Parties
The Agency contends that these sections do not concern conditions of
employment to be negotiated under section 7114 of the Statute because
they deal with overtime, which is a type of wages. The Agency maintains
that all pay related matters are not negotiable conditions of
employment. The Agency maintains that Sections 3, 6, and 7 conflict
with the Agency's right to determine its budget in accord with section
7106(a)(1) of the Statute. Further, the Agency contends that these
sections are inconsistent with law, 10 U.S.C. Section 2304, and
Department of Defense Acquisition Regulations regarding the procurement
of staff for dependent schools through personal service contract
negotiations.
The Agency also claims that Sections 3, 6, and 7 conflict with
Department of the Army Regulation No. 352-3, Education of Dependents in
the United States, Puerto Rico, Wake Island, Guam, American Samoa, and
the Virgin Islands (AR 352-3), because they do not take into account
that aspect of its regulation which details the policies and
responsibilities for providing education to dependent children. The
Agency asserts that a compelling need exists for this regulation to bar
negotiations on this provision.
The Agency contends that Section 4 is nonnegotiable to the extent
that it would: (1) preclude management from assigning work normally
performed by unit employees to supervisors; (2) require management to
assign employees to overtime work in circumstances where the work to be
performed is different from that to which the employees are normally
assigned; or (3) limit management's right to assign work to particular
employees by requiring them to be within the organizational element
where the overtime work is to be performed.
The Agency contends that the second sentence of Section 6 violates
its right to assign work under section 7106(a)(2)(B) of the Statute
because the Agency could only require employees to perform the tasks for
which they were called back to work.
The Union asserts that only those matters specifically provided for
by statute are proscribed from negotiation. The Union contends that
these sections are not specifically provided for by statute and thus
they are conditions of employment on which the Agency must negotiate
under section 7114 of the Statute. The Union argues that the Agency has
not established a compelling need for its regulation claimed to bar
negotiations. The Union asserts that the Agency has submitted no data
necessary to substantiate a compelling need claim. The Union also
points out that Section 6 mirrors Agency regulations.
The Union contends that Section 4 reflects a general, nonquantitative
standard and negotiable procedure for the assignment of overtime among
qualified employees. The Union maintains that the provision nowhere
mentions or pertains to supervisors or other nonbargaining unit
employees.
The Union argues that the second sentence of Section 6 constitutes an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute for employees adversely affected by the Agency's decision to
call them to work outside their regularly scheduled hours.
B. Analysis and Conclusions
Section 3, the first and third sentences of Section 6, and Section 7
concern overtime and will be considered jointly. Section 4 and the
second sentence of Section 6 address other matters and will then be
addressed separately.
Section 3, the First and Third Sentences of Section 6, and
Section 7
Section 3 would require overtime compensation for any work at the
appropriate overtime rate or compensatory time.
The first and third sentences of Section 6 would require compensation
on an overtime basis for a minimum of two hours when an employee is
called back to work outside of regular duty hours, even though the
employee may not be required to work for the entire time. The provision
also states that an employee called in to work before regular duty hours
who works straight through to quitting time will be compensated by
compensatory time off or by overtime pay.
Section 7 would require overtime compensation for any work performed
before or after scheduled work hours and also would require that any
employee directed to report to a designated location outside of duty
hours must be compensated at the appropriate overtime or compensatory
time rate.
For the reasons which follow, we find that these sections of
Provision 2 are within the duty to bargain.
1. The Provision Incorporates Overtime Rates Established
by Applicable Regulation
Because employees in this case are employed pursuant to 20 U.S.C.
Section 241 they are not subject to provisions of title 5 of the United
States Code, and implementing Government-wide regulations, which
establish overtime rates for Federal employees. However, the Agency
does not dispute the fact that there are regulations, as referenced in
the provision, prescribing appropriate overtime rates which are
applicable to these employees. For purposes of this decision,
therefore, we assume that Sections 3, 6, and 7 would require the Agency
to pay employees that amount of overtime which is appropriate under
applicable regulations.
Interpreted in this manner, Sections 3, 6, and 7 are to the same
effect as Proposals 8 and 9 in National Union of Hospital and Health
Care Employees, AFL-CIO, District 1199 and Veterans Administration
Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987). In that case, we
held that because the proposals incorporated the agency's regulations on
accrual of annual and sick leave and subjected the accrual rates to any
modifications required by law or changes in agency policy they were
within the agency's duty to bargain. Specifically, we found that under
those proposals the terms for accrual of leave would be those
established by the agency as provided by law. The agency in that case
would not have been bound to different terms if it decided to change its
leave accrual policy.
Under Section 3, the first and third sentences of Section 6, and
Section 7 in this case, the overtime rates for unit employees likewise
would only be those established by applicable regulations. Therefore,
for the reasons set forth in VA Medical Center, Dayton, we find that
Section 3, the first and third sentences of Section 6, and Section 7, if
otherwise negotiable, are within the Agency's duty to bargain.
2. The Provision Does Not Conflict with Law
The Agency objects to Provision 2 because it conflicts with 10 U.S.C.
Section 2304 which establishes the requirements governing procurement by
the Department of Defense. In Fort Knox Dependents Schools, 27 FLRA No.
34, we held that personnel employed under 20 U.S.C. Section 241 are
employees of the Federal Government and not independent contractors.
Moreover, we held that the agency had not established that the
procurement regulations on which it relied in any manner applied to the
personnel in that case. That is, the agency had not established that it
was required by those regulations to use personal services contracts to
employ personnel under 20 U.S.C. Section 241. Rather, we found that the
personal services contracts were nothing more than written statements of
the conditions of employment under which employees would be hired.
The fact that the Agency uses personal services contracts to employ
personnel for dependents schools does not demonstrate that it must do so
either under 20 U.S.C. Section 241 or under 10 U.S.C. Section 2304. In
our view, 20 U.S.C. Section 241 establishes a separate employment
authority for the schools covered by that provision. The Agency has not
shown that Congress intended that authority to be exercised pursuant to
10 U.S.C. Section 2304 or any other law governing procurement. We find,
therefore, that Provision 2 is not inconsistent with 10 U.S.C. Section
2304.
Similarly, for the reasons set forth in Fort Knox Dependents Schools,
27 FLRA No. 34, we find that Provision 2 is not inconsistent with
Department of Defense procurement regulations.
3. The Provision Does Not Interfere with the Agency's
Right to Determine its Budget
In American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
(1980), enforced as to other matters sub nom. Department of Defense v.
FLRA, 659 F.2d 1140 (D.C. Cir. 1981), the Authority held that in order
to demonstrate that a union proposal directly interferes with
management's right to determine its budget under section 7106(a)(1) it
is necessary for the agency either to show that the proposal prescribes
the program and operations to be included in the agency's budget or the
amount to be allocated for them or to make a substantial demonstration
that the anticipated increase in costs is significant and unavoidable
and is not offset by compensating benefits.
The sections concern a program or operation which already exists,
that is, wages for employees called back to work, and one which is
currently funded by the Agency's budget. Moreover, the sections do not
prescribe the amount to be allocated to this program or operation.
Thus, the sections do not directly interfere with the Agency's right to
determine its budget. Furthermore, the Agency has not made a
substantial demonstration that the implementation of the provision will
result in a significant, unavoidable increase in costs. Specifically,
the Agency makes no argument regarding any specific increase in costs
which would result from implemention of Sections 3, 6 and 7. Therefore,
it is not necessary to consider whether any increase in costs is
outweighed by compensating benefits. Consequently, in this respect also
the provision at issue does not directly interfere with the right of the
Agency to determine its budget under section 7106(a)(1).
4. Compelling Need
The Agency asserts that these sections conflict with Department of
the Army Regulation No. AR 352-3 for which there is a compelling need.
The regulation states:
1-7. Comparison factors. Education provided will be
considered comparable to free public education offered by selected
communities in the State when the following factors are, to the
maximum extent practicable, equal:
h. Salary schedules
The Agency contends that this provision implements in a
nondiscretionary manner a mandate of Congress to pattern personnel
practices for the nonteaching school personnel involved here after those
generally found in state school systems as opposed to those found in the
Federal service.
In American Federation of Government Employees, AFL-CIO, Local 3804
and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No.
104 (1986), the Authority stated that in order to show a compelling need
for an agency regulation, 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 standards in
section 2424.11 of our Regulations. However, in this case, the Agency
has not demonstrated that the disputed sections of Provision 2 conflict
with the cited regulation. In particular, the Agency has not shown that
providing for employees to be paid overtime in accordance with
applicable regulations is in any manner inconsistent with the
requirement of the regulation that wage matters be, to the maximum
extent practicable, equal to comparable free public education in the
State in which the schools are located. In the absence of any evidence
that the disputed portions of Provision 2 conflict with the cited
regulation, therefore, we do not reach the issue of whether a compelling
need exists for that regulation under section 7117(a)(2) of the Statute
and section 2424.11 of our Regulations as was done in Fort Knox Teachers
Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987)
(Chairman Calhoun dissenting), petition for review filed sub. nom. Fort
Knox Dependent School v. FLRA, No. 87-3395 (6th Cir. Apr. 27, 1987).
Section 4
We agree with the Union that Section 4 is within the duty to bargain.
The effect of the provision is that overtime will be offered equitably
to those employees determined by the Agency to be qualified within a
particular trade or occupation within an organizational element.
Contrary to the Agency's contentions, we find no indication that the
provision is intended to preclude the assignment of overtime work to
supervisors or that it would require the assignment of work which is
different from that normally assigned or outside organizational
elements. The provision is to the same effect as Proposal 2 which was
found to be negotiable in American Federation of Government Employees,
AFL-CIO, Meat Grading Council of Locals and Department of Agriculture,
Meat Grading and Certification Branch, 22 FLRA No. 52 (1986). In that
case, the Authority held, on the basis of its decision in 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), that the proposal
concerned only which employee among those in the bargaining unit already
assigned certain work would be selected to perform that work in an
overtime status when overtime was required. Therefore, for the reasons
set forth in Meat Grading and Certification Branch and in Food Safety
and Quality Service, we conclude that Article 10, Section 4 does not
interfere with the Agency's right to assign work and is within the duty
to bargain.
The Second Sentence of Section 6
The second sentence of Section 6 provides that employees called back
to work outside of their regularly scheduled hours of duty will be
excused upon completion of the task which they were called in to
perform. The Union explains that the intent of this provision is to
ensure that employees who complete the assigned task will not then be
given "busy work" to perform until the minimum amount of time has
elapsed. The second sentence of Section 6 is to the same effect as the
second portion of the proposal in National Federation of Federal
Employees, Local 1380 and Department of the Navy, Naval Coastal Systems
Center, Panama City, Florida, 11 FLRA 129 (1983), which the Authority
found to be outside the duty to bargain. The proposal in Naval Coastal
Systems Center provided that employees called back to work would only be
required to work on the emergency for which they were called back. The
Authority found that the proposal expressly limited management's right
to assign particular duties during callback overtime to duties related
to the emergency situation necessitating the overtime and thus, that it
directly interfered with the agency's right to assign work under section
7106(a)(2)(B) of the Statute. Likewise, the second sentence of Section
6 directly interferes with the Agency's right to assign work under
section 7106(a)(2)(B).
The Union contends that the second sentence of Section 6 constitutes
an appropriate arrangement for employees adversely affected by the
exercise of management's rights to call employees back to work outside
of their regular duty hours. We find, however, that under the test
articulated in National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the second
sentence of Section 6 does not constitute an appropriate arrangement
within the meaning of section 7106(b)(3). Even assuming that the
provision constitutes an "arrangement" for adversely affected employees,
it is not "appropriate."
Although the provision would make it possible for employees called
back to work to return home upon the completion of the task for which
they were summoned to work, regardless of the amount of time which had
elapsed, it would do so be eliminating management's discretion, under
section 7106(a)(2)(B), to assign work. Under the provision, the Agency
would not be able to assign work to the employee different from that
mentioned when summoning the employee to return to duty. Work of an
equal or even more important nature could develop which the Agency would
need to be performed immediately, but the Agency would be prohibited
from assigning it to the employee on callback overtime.
We have consistently held that proposals which in this manner
excessively interfere with management's rights are not "appropriate
arrangements" within the meaning of section 7106(b)(3) of the Statute.
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 No. 9 (1987)
(Provisions 6, 7, and 8). Accordingly, we find that the second sentence
of Section 6 is not an appropriate arrangement under section 7106(b)(3).
For the reasons stated above, the second sentence of Article 10,
Section 6 is outside the duty to bargain.
IV. Provision 3
Article Eleven -- Occupational Health and Safety
Section 2.
Problems concerning occupational health and safety should first
be brought to the attention of the immediate supervisor who will,
in consultation with the Steward, if available, determine what
actions should be taken in order to alleviate a hazard to the
health and safety of the affected Employees. If the matter is not
resolved at that level, the supervisor will recommend remedial
action to the Assistant Superintendent for Business. The
Assistant Superintendent will take immediate necessary action to
alleviate the hazardous condition. If the matter is not resolved
at that level, the Assistant Superintendent will notify the
Installation Safety Manager and request assistance on the problem.
In serious emergency situations where an employee feels that his
life or health is immediately endangered, the specific work
operation in question will cease until the processes outlined
above have been observed. (Only the underlined portion is in
dispute.)
Section 4.
The Employer agrees to participate in the Installation's
industrial health and emergency aid program. In case of a
job-related injury or sickness, an Employee shall not be required
to perform work until an Employer medical officer or doctor
determines that the Employee is physically fit for duty. An
employee may be assigned to light duty or to another job
temporarily if his injury is of a nature that incapacitates him
from his regular job and if available. An Employee sent home or
to a hospital shall be furnished transportation by the Employer if
his condition precludes travel by private transportation. (Only
the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the express wording of the disputed portion
of Section 2 would absolutely prohibit management from assigning certain
duties to an employee during a specified period of time, that is, until
"the processes outlined above have been observed," whenever an employee
feels that his life or health is immediately endangered. The Agency
argues that this interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute.
The Agency contends that the disputed portion of Section 4 absolutely
prohibits management from assigning employees to perform work until a
physician determines that the employee is fit for duty. Thus, the
Agency argues, it would be completely prevented from assigning work
unless that precondition has been met. The Agency contends that this
portion of Section 4 is inconsistent with section 7106(a)(2)(B) of the
Statute.
The Union argues that the disputed portion of Section 2 concerns
serious and immediate matters -- "imminent danger" situations -- which,
the Union alleges, have been recognized as a sound basis for refusing to
work without penalty. The Union cites Whirlpool Corporation v.
Marshall, 445 U.S. 884 (1980) as authority for its position. The Union
further argues that Federal employees enjoy similar protections against
workers in conditions imposing threat of immediate, serious harm under
Executive Order 12196 and Occupational Safety and Health Administration
(OSHA) regulations found at 29 C.F.R. Section 1960.46(a). The Union
contends that the disputed portion of the provision constitutes an
appropriate arrangement under section 7106(b)(3) of the Statute and does
not interfere with the Agency's right to assign work.
The Union argues that disputed portion of Section 4 constitutes an
appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Section 2
We find Section 2 to be nonnegotiable for reasons not addressed by
the parties. Since this portion of the provision is inconsistent with a
Government-wide regulation, it is outside the duty to bargain under
section 7117(a)(1) of the Statute. Specifically, OSHA regulations
provide that when employees have a "reasonable belief" that they are in
"imminent risk of death or serious bodily harm" from a work assignment,
and do not have sufficient time to seek redress through normal abatement
procedures, they may decline to perform the assignment. 29 C.F.R.
Section 1960.46(a). Section 2, however, provides that where an employee
"feels" that his or her life and health are "immediately endangered,"
work operations will cease. Employee refusals to work are only
protected under OSHA regulations where they are based on a "reasonable
belief" on the part of employees that they are subject to "imminent risk
of death or serious bodily harm." The standard set forth by Section 2
therefore is broader than, and exceeds the limitations set forth in, 29
C.F.R. Section 1960.46(a). Section 2 would replace the objective
standard which is set forth in the regulation with a standard which is
essentially subjective. Section 2 is therefore inconsistent with the
regulation. Compare Federal Union of Scientists and Engineers, Local
R1-144 and Department of the Navy, Naval Underwater Systems Center, 26
FLRA No. 67 (1987) (proposal establishing standard for granting
compensatory time off for religious reasons held inconsistent with
standard prescribed in the applicable Government-wide regulation).
The question then becomes whether 29 C.F.R. Section 1960.46(a)
constitutes a Government-wide regulation within the meaning of section
7117(a)(1) of the Statute, which bars negotiation on proposals that are
inconsistent with Government-wide regulations. The regulations at issue
are codified at part 1960 of title 29 of the Code of Federal Regulations
as occupational safety and health regulations for the Federal Government
published by the Department of Labor's Occupational Safety and Health
Administration. By their terms, these regulations are binding on
agencies, as defined in 5 U.S.C. Section 101, or any employing unit or
authority of the Executive Branch of the Government, and apply to any
person, other than members of the Armed Forces, employed by an agency.
29 C.F.R. Section 1960.2. These regulations are therefore generally
applicable throughout the Federal Government. We find, therefore, that
these regulations are "Government-wide regulations" within the meaning
of section 7117(a). See National Treasury Employees Union, Chapter 6
and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).
Consequently, because we conclude that Section 2 is inconsistent with
29 C.F.R Section 1960.46(a), which is a Government-wide regulation, we
find that Section 2 is outside the duty to bargain. Since Section 2 has
been found to be outside the duty to bargain on other grounds, we need
not address the additional negotiability contentions raised by the Union
and the Agency.
Section 4
The disputed portion of Section 4 deals with employees who suffer
job-related injury or sickness, and provides that these employees are
not to return to duty until an employer medical officer or doctor
determines that they are fit for duty. The provision is all-inclusive,
extending its coverage not only to serious injury or contagious illness,
but also to minor injury or discomfort. Because the disputed portion of
Section 4 precludes the Agency from assigning work to employees who have
suffered any job-related injury or sickness when a medical officer or
doctor fails to find them fit for duty, it directly interferes with
management's right to assign work. We have held that provisions which
similarly condition management's ability to assign work conflict with
the right to assign work under section 7106(a)(2)(B). 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 No. 14 (1987) (Provision 11),
petition for review, as to other matters filled sub nom. 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 v. FLRA, No. 87-7445 (11th Cir. July 17,
1987); American Federation of Government Employees, Local 2182, AFL-CIO
and Propulsion Laboratory, U.S. Army Research and Technology
Laboratories, 26 FLRA No. 74 (1987) (Provision 4).
The Union asserts and we find that Section 4 is intended to be an
"arrangement" within the meaning of section 7106(b)(3) for employees who
would be adversely affected by being required to work after having
suffered a job-related injury or illness. As to whether Section 4
constitutes an "appropriate" arrangement, we note that it is not limited
to serious injury or contagious illness, or to conditions which would
greatly interfere with employees' ability to perform their duties, but
would pertain to employees suffering very minor injuries while on duty.
In balancing the protection afforded employees by the provision against
its effect on management's conduct of the Agency's operation under the
Authority's decision in Kansas Army National Guard, 21 FLRA No. 4, we
find that the disputed portion of Section 4 excessively interferes with
management's right to assign work. Because Section 4 contains no limit
on the extent of injury or illness requiring medical certification
before an employee's continuation of duty, it would restrict
management's ability to accomplish work in circumstances where medical
certification would not be necessary for employee protection. For this
reason, we find that the disputed portion of Section 4 is outside the
duty to bargain. See U.S. Army Missile Command, 27 FLRA No. 14
(Provision 11). See also American Federation of Government Employees,
AFL-CIO, Local 1409 and Department of the Army, U.S. Army Adjutant
General Publications Center, Baltimore, Maryland, 28 FLRA No. 22 (1987).
V. Provision 4
Article Twelve -- Promotions and Placement
Section 7.
The Employer agrees to give Bargaining Unit Employees who are
qualified for positions/promotions first and bona fide
consideration in filling vacancies.
A. Positions of the Parties
The Agency contends that if it must only consider and is not required
to select a bargaining unit employee, the provision is negotiable. The
Agency further contends that if the intent of the provision is that the
employee be selected it directly interferes with management's right to
select from any appropriate source under section 7106(a)(2)(C).
The Union takes the position that the provision is lawful on its face
and should not be subjected to speculative or conditional approvals.
B. Analysis and Conclusion
Section 7 merely requires that qualified unit employees be given
first consideration in filling vacancies. It does not require that the
unit employee be selected. The Agency's conditional disapproval of
Section 7 is unfounded. It is based on an interpretation of this
section which is inconsistent with its plain wording. Section 7 is
similar to the first paragraph of Proposal 2 in National Treasury
Employees Union and Department of the Treasury, Bureau of Alcohol,
Tobacco and Firearms, 26 FLRA No. 60 (1987), petition for review filed
sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms v. FLRA, No. 87-1234 (D.C. Cir. May 19, 1987), which provided
that unit employees would be given priority consideration in filling
vacancies. We found that it did not interfere with management's right
to select under section 7106(a)(2)(C) and was a negotiable procedure
under section 7106(b)(2) of the Statute. Based on the reasoning in that
case, we find that Section 7 is negotiable.
VI. Provision 5
Article Thirteen -- Details and Employee Contract Modification
Section 2.
The Employer may noncompetitively detail any Employee to the
same or lower grade position for up to 240 calendar days, in 120
calendar day increments, for any detail.
Section 3.
The Employer may detail an Employee to a higher grade position
for up to 240 calendar days, in 120 calendar day increments.
Competition will be required for a second 120 day detail.
Section 4.
Details of Employees will be kept within the shortest practical
time limits and in accordance with this Agreement.
Section 6.
The Employer agrees not to detail any Employee to any
unestablished position in excess of 120 total calendar days.
Section 7.
The Employer agrees that it will make efforts to assure that
details are not used for the purpose of compromising the
open-competitive principle of promoting Employees.
A. Positions of the Parties
The Agency's position regarding the first two sections is the same.
To the extent that these provisions restrict the duration of a detail to
either the same or lower graded position (Section 2) or to a higher
graded position (Section 3), the Agency contends that they interfere
with management's right to assign employees. The Agency contends that
Section 4, when read in conjunction with Sections 2 and 3, also limits
the duration of details and thereby interfere with its right to assign
employees. The Agency contends that Section 6 interferes with
management's right under section 7106(a)(2)(A) of the Statute because it
would not permit certain details to last more than 120 days. The Agency
contends that to the extent that Section 7 proscribes the use of
details, it is nonnegotiable under section 7106(a)(2)(A) and (B) of the
Statute. In this connection, the Agency claims that circumstances, such
as a budgetary crisis, might dictate the use of details rather than
promotions.
The Union contends that Sections 2 and 3 constitute appropriate
arrangements for employees adversely affected by the fact that the
limitations on the use of details set forth in the Federal Personnel
Manual (FPM) do not apply to the employees in this case. The Union
contends that the limitations set forth in the FPM are safeguards
against management abuse.
The Union contends that Section 4 is procedural in nature and does
not prohibit management from assigning details of any length. The Union
also argues that Section 4 was intended to deal with the adverse impact
of "overly long" details and therefore is an appropriate arrangement
under section 7106(b)(3) of the Statute.
The Union argues that Section 6 does not totally preclude the
employer's assignment of employees to details beyond 120 days. The
Union asserts that the limitation applies only to "unestablished
positions." The Union contends that Section 6 merely establishes an
appropriate arrangement for employees detailed to unestablished
positions.
The Union contends that Section 7 prohibits management from using
details only where the primary purpose is to avoid a promotion and no
other legitimate management need exists. The Union argues therefore
that Section 7 is both a negotiable procedure under section 7106(b)(2)
and an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis
Sections 2, 3, 4, and 6
We find that sections 2, 3, 4, and 6 interfere with the Agency's
right to assign employees under section 7106(a)(2)(A) of the Statute by
placing specific limitations on the duration of details. Sections 2, 3,
and 6 limit details respectively to the same or lower grade positions,
to higher grade positions, and to unestablished positions for a specific
number of days. Section 4 requires that all details be in accordance
with the Agreement, thereby restricting details to the limitations
contained in Sections 2, 3, and 6. Provisions which restrict the length
of an assignment directly interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute. See American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
(Proposal 13). Therefore, these sections are outside the duty to
bargain, unless a determination is made that they constitute appropriate
arrangements for employees adversely affected by the exercise of a
management right. Kansas Army National Guard, 21 FLRA No. 4. For the
reasons which follow, we find that Sections 2, 3, 4, and 6 are outside
the duty to bargain because they do not constitute arrangements for
employees adversely affected by management's exercise of its right to
assign employees within the meaning of section 7106(b)(3) of the
Statute.
In this case, the Union alleges that the disputed sections of
Provision 6, which prescribes specific time limits for details, are
intended to mitigate the adverse effects of those details. However, the
Union has not identified particular adverse effects to employees which
result from lengthy details, nor are there any such effects which could
reasonably be inferred based on the record in this case. The Union
appears to assume that lengthy details in and of themselves adversely
affect employees and that those effects can be ameliorated by limiting
the duration of details. We decline to reach that broad conclusion.
However, that does not mean that there can be no adverse effects on
employees which may result from details. We have addressed in two
recent cases specific examples of adverse effects of details related to
the particular circumstances present in those cases, and we found
negotiable as appropriate arrangements proposals that dealt directly
with those adverse effects. In Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA No. 4
(1986) (Proposal 6), the Authority found that a proposal which would
require that an employee's performance on a detail be given equitable
and proportionate weight in his evaluation, was an appropriate
arrangement because it prescribed an arrangement for employees to be
rated while on a detail. This proposal dealt specifically with the
adverse effect of not being rated for time spent on a detail.
Furthermore, it did not preclude management from detailing employees in
any manner, nor did it preclude management from evaluating the
employees' work while on details.
In National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 23 FLRA No. 36 (1986), the Authority found a
provision that provided a reasonable amount of administrative time for
employees returning to their regular position from a detail to
familiarize themselves with changes in policy or procedures to be within
the duty to bargain as an appropriate arrangement. The Authority
reached that conclusion because in the circumstances of that case the
provision dealt with the adverse effect of the inability of the
employees to remain familiar, as required, with those changes in policy
or procedure while assigned away from their regular positions.
Furthermore, the provision neither prevented management from assigning
work nor required it to assign tasks which were not already part of an
employee's job responsibilities.
Unlike the circumstances in this case, in each of those cases the
union identified a specific adverse effect that would result from a
detail and formulated specific wording to deal with that adverse effect.
We can find no adverse effect which is traceable to, and dependent on,
the length of a detail. Therefore, we conclude that the Union has not
satisfied the threshold requirements of section 7106(b)(3). It has not
identified the adverse effects on employees resulting from the exercise
of a management right which the proposal is supposedly designed to
address.
Finally, we note in connection with Section 3 that the Authority has
consistently held that proposals requiring a temporary promotion for
employees detailed to a higher-graded position are negotiable. See, for
example, American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Locals and Department of Justice,
U.S. Marshals Service, 4 FLRA 384, 387-88 (1980) (Proposal II).
Section 7
Section 7, as explained by the Union, provides that management will
not detail an employee to a position to avoid filling that position by
promotion, unless it has a legitimate reason for such a detail. The
effect of the section is to impose a substantive condition on
management's right to assign employees. In reviewing management action
under this section an arbitrator would determine whether the reasons
management gave for detailing an employee were "legitimate." In applying
that criterion, an arbitrator would be authorized to review management's
judgment in deciding to detail an employee. If the arbitrator were not
satisfied that the reasons given by management were "legitimate," he or
she could overturn that decision. By thus restricting management's
ability to detail employees, Section 7 directly interferes with
management's right to assign employees under section 7106(a)(2)(A) of
the Statute. See Patent Office Professional Association and Patent and
Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987)
(Sections 3.E and 3.F), petition for review filed sub nom. Patent Office
Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987).
As to whether Section 7 is an appropriate arrangement under section
7106(b)(3), we find that the adverse effects on employees against which
that portion of the provision is intended to mitigate are, at best,
speculative and that the benefits to be derived from the provision
therefore do not outweigh the detrimental consequences of the limitation
imposed on management's rights. In particular, the assumption behind
Section 7 appears to be that where management, with no "legitimate"
reason, details an employee to avoid promoting that employee or some
other employee, those employees are adversely affected by the loss of
that opportunity for promotion. Whether the alleged adverse effects are
claimed to result from the decision to detail or from the decision not
to fill the position from candidates for promotion, in either event the
alleged adverse effects are speculative. There can be no loss of a
promotion opportunity to the position which is being filled by the
detail because management could, if it chose to fill the position
permanently, fill it from another appropriate source.
Correlatively, there is no certain benefit which would result for
employees from limiting management's right to detail, since the vacancy
might be filled from another appropriate source rather than by
promotion. We do not believe that providing a benefit to employees
which is at most a remote possibility is sufficient to outweigh the
restrictions placed by the provision on management's right to detail
employees. Consequently, we conlcude that Section 7 excessively
interferes with management's right to assign employees under section
7106(a)(2)(A) of the Statute and does not constitute an appropriate
arrangement within the meaning of section 7106(b)(3). We find,
therefore, that Section 7 is outside the duty to bargain.
VII. Provision 6
Article Fourteen -- Grievance Procedure
Section 2.
"Grievance" means any complaint --
(A) by any employee concerning any matter relating to the
employment of the employee.
A. Position of the Parties
The Agency contends that this provision is nonnegotiable to the
extent that it would allow employees to resolve disputes arising out of
their personal services contracts through the negotiated grievance
procedure 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 that Act to be the exclusive method for resolving disputes
arising out of Government contracts.
The Union argues that the specific intent of the Statute, as
reflected by its wording and its legislative history, is to entitle
employees to appeal management actions in negotiated procedures and
nothing in the Statute creates an exception for the Contract Disputes
Act.
B. Analysis and Conclusion
Section 2 defines the term "grievance," consistent with section
7103(a)(9) of the Statute, to mean any complaint by any employee
concerning any matter relating to the employment of the employee.
Section 2, therefore, has the same effect as Provision 2 in Fort Knox
Dependents Schools, 27 FLRA No. 34. In that case, 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. For the reasons stated in Fort Knox Dependents Schools,
therefore, we find that Section 2 in this case, which similarly provides
for a grievance procedure which extends to any matter relating to the
employment of an employee, does not conflict with the Contract Disputes
Act and is within the Agency's duty to bargain.
VIII. Provision 7
Article Sixteen -- Reduction in Force
Section 1.
For purposes of this Article, a reduction in force (RIF) occurs
when an employee is released from his position of employment by
separation, demotion, or reassignment because of lack of work or
funds, reorganization, reclassification due to changes in duties
or the exercising of re-employment rights.
Section 4.
In the event of a reduction-in-force, existing vacancies will
be utilized to the maximum extent possible to place employees in
continuing positions who otherwise would be separated from
employment.
Section 5.
Bargaining unit positions within all schools included in the
Fort Bragg School System shall be considered for purposes of
implementing a reduction-in-force of bargaining unit members.
Section 6.
The Employer agrees to compose and maintain list(s) of
personnel whose employment is affected by a RIF. The Employer
agrees to maintain such list(s) for a period of at least 12 months
after the RIF action and agrees to fill the position affected by
the RIF only from the list, provided a qualified individual
remains on the list. (Only the underlined portion is in dispute.)
Section 9.
If possible, the Employer shall offer the employees affected by
the reduction-in-force available employment for which they are
qualified which is as close as possible to their current salary
level.
A. Positions of the Parties
The Agency contends that Section 1 interferes with management's
rights under section 7106(a)(2)(A) of the Statute because it concerns
reduction-in-force (RIF) procedures and negotiation of RIF procedures
would have the effect of determining who the Agency lays off or reduces
in grade or pay.
The Agency asserts that it is unclear whether Section 4 would require
management to utilize a vacancy or not. The Agency argues that if
Section 4 requires the filling of vacancies, it is nonnegotiable since
it conflicts with management's rights to choose among candidates under
section 7106(a)(2)(C) of the Statute.
The Agency maintains that the meaning of Section 5 is unclear. It
asserts that if Section 5 would require the filling of a position in any
RIF throughout the school system, it is nonnegotiable.
The Agency contends that Section 6 interferes with management's right
to select from any source under section 7106(a)(2)(C). Moreover, the
Agency contends that it conflicts with applicable procurement law, 10
U.S.C. Section 2304(a), which requires that all personal services
contracts be "let" through maximum competition.
The Agency asserts that (1) to the extent that Section 9 would
require filling of a vacancy it is nonnegotiable; and (2) if it is
designed to accord bumping or retreat rights to an employee, it is
nonnegotiable since it would determine who is to be laid off in
derogation of management's rights under section 7106(a)(2)(A) of the
Statute.
The Union states that Section 1, on its face, is a definition which
only requires the parties to abide, by its meaning when referring to a
reduction-in-force or to identify the named actions as a
"reduction-in-force."
The Union states that Section 4 does not require the Agency to fill a
vacancy which it chooses not to fill. It also states, however, that
Section 4 does require the Agency to place RIFed employees in vacant
positions when such vacancies are to be filled. The Union contends that
Section 4 constitutes an appropriate arrangement under section
7106(b)(3) of the Statute.
The Union contends that the language of Section 5 clearly states that
bargaining unit positions within all schools included in the Fort Bragg
School System shall be "considered" by the Agency in the event of a RIF.
The Union also argues that the Agency's "self-professed confusion" is
not a basis for disapproving a negotiated provision or rendering the
provision unlawful.
The Union argues that Section 6 does not interfere with management
rights and is an appropriate arrangement negotiable under section
7106(b)(3). The Union disputes the Agency's contention that "personal
services contracts" supersede or preclude provisions of the collective
bargaining agreement, citing J.I. Case Co. v. NLRB, 321 U.S. 332 (1944).
The Union argues that Section 9 is a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Section 1
The plain wording of Section 1 provides a definition of
reduction-in-force which will be used by the parties when referring to
RIF actions. Section 1 characterizes the types of personnel actions
which qualify under the terms of the parties' agreement as a
reduction-in-force. Section 1 does not prescribe procedures relating to
the implementation of a RIF nor does it determine who the Agency will
lay off or reduce in grade or pay pursuant to its rights under section
7106(a)(2)(A) of the Statute. Further, we reject the Agency's argument
that any negotiation of RIF procedures would interfere with management's
rights. Section 7106(b)(2) of the Statute specifically requires the
Agency to negotiate over "procedures" governing the exercise of a
management right, including rights associated with the implementation of
a RIF. See, for example, Congressional Research Employees Association
and Library of Congress, Congressional Research Service, 25 FLRA No. 21
(1987) (Proposals 1-9). Section 1 does not interfere with management's
rights under section 7106(a)(2)(A) of the Statute and, therefore, is
negotiable.
Section 4
Given the Union's explanation of Section 4, Provision 7, we find that
it does not require the filling of a vacancy. See Union Response at 42.
Section 4, that is, would require the Agency to select employees who
would otherwise be separated in a RIF to fill vacant positions which the
Agency decides to fill. Moreover, consistent with other portions of
Provision 7, specifically, Sections 6 and 9, we interpret Section 4 as
requiring management to select only employees who are qualified for the
positions which it decides to fill. Interpreted in this manner, Section
4 is essentially the same as a proposal found to be an appropriate
arrangement in National Association of Government Employees, Local
R14-87 and Department of the Army, Kansas Army National Guard, Topeka,
Kansas, 21 FLRA No. 48 (1986). That proposal required the agency to
select employees who were involuntarily reassigned to a position of
equal grade without personal cause for return to their former positions
at their former duty stations, if and when such positions become vacant
and the agency decides to fill them. The Authority held in that case
that the proposal did not "excessively interfere" with management's
rights to assign employees and to fill vacant positions from any
appropriate source because it did not require management to fill a
vacant position and because it reserved management's discretion to
determine whether an employee was qualified for the position.
Therefore, the Authority found that the proposal was an appropriate
arrangement under the test enunciated in Kansas Army National Guard, 21
FLRA No. 4.
Section 4 would mitigate against the involuntary separation of
employees subject to a RIF, where there are vacant positions for which
the RIFed employees are qualified and the Agency decides to fill those
positions. Section 4 does not excessively interfere with management's
rights since the Agency retains the discretion to determine whether to
use vacancies in order to retain qualified employees affected by a RIF.
Compare Congressional Research Service, 25 FLRA No. 21 (Proposal 5)
(proposal held to excessively interfere with management's right to
select from among candidates to fill positions under section
7106(a)(2)(C) because it required the filling of a vacant position).
Therefore, like the proposals in Kansas Army National Guard, Topeka,
Kansas, 21 FLRA No. 48, Section 4 is a negotiable appropriate
arrangement under section 7106(b)(3) for employees adversely affected by
the exercise of management's rights. We note in this connection that,
pursuant to 20 U.S.C. Section 241, Requirement 4, subchapter 1-4,
chapter 335 of the Federal Personnel Manual does not apply to the
employees in this case.
Section 5
Section 5 requires the Agency to consider all bargaining unit
positions within the Fort Bragg School System when the Agency decides to
implement a reduction-in-force of bargaining unit members. The Agency
head's conditional disapproval of Section 5 is unfounded. It is based
on an interpretation of this section which is inconsistent with its
plain wording and contrary to the Union's explanation. The clear
wording of Section 5 does not require the filling of a position in a
reduction-in-force. Section 5 requires the Agency to consider all
positions in the bargaining unit when it decides which positions are to
be reduced in grade or abolished as a result of a reduction-in-force.
Section 5 does not require the elimination or abolition of any
particular position. Section 5, therefore, is negotiable. See National
Association of Government Employees, Local R7-23 and Department of the
Air Force, Headquarters 375th Air Base Group (MAC), Scott Air Force
Base, Illinois, 26 FLRA No. 106 (1987) (Proposal 2).
Section 6
The Agency asserts that Section 6 conflicts with 10 U.S.C. Section
2304. For the reasons set forth in our discussion of Provision 2 above,
we find that Section 6 does not conflict with the cited statute.
Section 6 requires that when management decides to fill positions
which have been affected by a RIF, it will do so from a list of
employees whose employment had been affected by the RIF. Section 6 is
therefore to the same effect as Proposal 1 in National Association of
Government Employees, Local R14-87 and The Adjutant General of Kansas,
21 FLRA No. 42 (1986). The proposal in that case required management to
reemploy or repromote employees to positions which management decided to
fill and for which the employees were qualified. The Authority held
that the proposal was a negotiable appropriate arrangement under section
7106(b)(3). Section 6 similarly provides for management to select
qualified employees to fill positions affected by a RIF, when it decides
to fill those positions, from among employees who had been affected by
that RIF. For the reasons set forth in Adjutant General of Kansas,
therefore, we find that Section 6 is a negotiable appropriate
arrangement under section 7106(b)(3) of the Statute.
Section 9
Section 9 of Provision 7 requires the Agency, where possible, to
offer employees affected by a reduction-in-force positions which become
available at a salary level which is close to the salary level of those
employees prior to the RIF and for which they are qualified. Consistent
with the Union's intent as to other, similar portions of Provision 7, in
particular, Sections 4 and 6, we find that Section 9 is not intended to
require management to fill a vacant position. Thus, under Section 9, if
a position were to become vacant at a salary level which is close to or
the same as the salary level of an affected employee prior to the RIF,
management would not be required by this section to offer the position
to the RIFed employee if it decided not to fill the vacancy.
Section 9, therefore, is similar to Proposal 2 in Kansas Army
National Guard, 21 FLRA No. 4 and Provision 2 in Adjutant General of
Kansas, 21 FLRA No. 42. Those proposals required the reemployment or
repromotion of employees who were qualified for and previously performed
successfully in the positions being filled. The Authority held that the
proposals constituted appropriate arrangements within the meaning of
section 7106(b)(3) for employees adversely affected by management's
decision to conduct a RIF. The Authority concluded that because the
proposals only required management to fill those positions it decided to
fill with employees who were qualified for the positions, the proposals
did not excessively interfere with management's right to select from any
appropriate source under section 7106(a)(2)(C) of the Statute.
Similarly, Section 9 only requires management to offer employees
affected by a RIF positions at or near their salary levels which become
available before a RIF. Management must offer those positions only if
it decides to fill the position and only if the employees are qualified
for the positions. For the reasons set forth in Kansas Army National
Guard and Adjutant General of Kansas, therefore, we find that Section 9
of Provision 7 does not directly interfere with management's right under
section 7106(a)(2)(C) to select from any appropriate source to fill
positions.
IX. Provision 8
Article Twenty -- Rest Periods
Section 1.
Where Employees are working under conditions which preclude the
taking of short breaks as needed, they will normally be authorized
a fifteen (15) minute break during each four (4) hours of
continuous duty. The fifteen minute rest period will be at the
midpoint of the four hours duty period and will be free of work.
A. Positions of the Parties
The Agency contends that to the extent Section 1 precludes management
from assigning work during the rest period, it conflicts with section
7106(a)(2)(B) of the Statute.
The Union did not present a position on Section 1, Article Twenty.
B. Analysis and Conclusions
Section 1 directly interferes with the Agency's right under section
7106(a)(2)(B) to assign work. Section 1 provides that rest periods
shall be free of work and thus would preclude the Agency from assigning
work during those periods. Section 1 differs from Proposal 1 in
American Federation of Government Employees, AFL-CIO, National Council
of Social Security Field Office Locals and Department of Health and
Human Services, Social Security Administration, 24 FLRA No. 81 (1986),
where we found that the proposal did not preclude the agency from
assigning work during rest periods. The determinative factor as to
whether granting rest periods is negotiable is whether or not the
proposal prohibits management from assigning work to employees during
such periods. Because Section 1 precludes the assignment of work during
rest periods, we find that it directly interferes with management's
right to assign work and is outside the duty to bargain. Compare
National Union of Hospital and Health Care Employees, AFL-CIO, District
1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA
No. 65 (1987) (Proposal 11) (proposal which provides for breaks while
employees are in a duty status and available for work held negotiable).
X. Provision 9
The Members of the Authority disagree over the negotiability of this
provision. The Decision and Order and Chairman Calhoun's dissent with
respect to this provision follow this decision.
XI. Provision 10
This provision deals with Article Twenty-two, Part C. Only
subsections (e), (f), and (g) of Section 8 are in dispute.
The Members of the Authority disagree over the negotiability of
Section 8(f) of Provision 10. The Decision and Order and Chairman
Calhoun's dissenting opinion with respect to Section 8(f) follow this
decision.
The Members are in agreement with respect to the negotiability of
Section 8(e) and (g) of Provision 10, which state:
Article Twenty-Two -- Leave Provisions for Less-Than-Annual Employees
Part C -- Other Leaves and Absences
Section 8 (Family Leave)
(e) Reinstatement to one's former position and duty station
will be made upon the Employee's return to work, except when the
period of temporary disability exceeds thirty (30) days, the
Employer shall determine when the unit member shall be reinstated,
in consultation with the Employee(.)
(g) Hospitalization and life insurance premiums will continue
in effect during a family leave period in accordance with Federal
regulations.
A. Positions of the Parties
The Agency argues that to the extent Section 8(e) and (g) require
management to guarantee continued employment past the end of the period
of employment covered by the employees' personal services contracts, it
is inconsistent with law, 10 U.S.C. Section 2304(a) and Department of
Defense Acquisition Regulations regarding the procurement of staff for
dependents schools.
The Union argues that, after the expiration of personal service
contracts, employees are covered by the parties' negotiated agreement
and the provisions are negotiable.
B. Analysis and Conclusions
Section 8(e)
We find Section 8(e) to be nonnegotiable for reasons other than those
alleged by the Agency. Section 8(e) would require the Agency to
reassign employees to their former positions and duty stations when they
return from family leave. Section 8(e) therefore has the same effect as
the second portion of a proposal found nonnegotiable in Fort Knox
Teachers Association and Fort Knox Dependent Schools, 26 FLRA No. 108
(1987), petition for review filed sub nom. Fort Knox Dependent Schools
v. FLRA, No. 87-3393 (6th Cir. June 25, 1987). The proposal in that
case would have required the agency to assign a teacher to his or her
original position when that teacher returned from sabbatical leave. We
held that such a requirement conflicts with management's right to assign
employees under section 7106(a)(2)(A) of the Statute because it would
prevent management from assigning the returning employee to any other
available position or from permanently assigning any other employee to
the position left for reasons of sabbatical leave. Section 8(e) of
Provision 10 likewise would require the Agency to assign a returning
employee to the particular position that employee had filled before
taking family leave. Thus, for the reasons stated in Fort Knox
Dependent Schools, we find that Section 8(e) of Provision 10 directly
interferes with management's right to assign employees to positions in
the Agency and is outside the duty to bargain. Because we find the
proposal interferes with management's rights, we do not reach the other
grounds for nonnegotiability raised by the Agency.
In our view, it is not clear that Section 8(e) is designed to
mitigate against the adverse effects on employees of the exercise of a
management right. Even assuming, however, that Section 8(e) constitutes
an arrangement for employees adversely affected by the exercise of a
management right within the meaning of section 7106(b)(3), we conclude
that it is not an "appropriate" arrangement. Section 8(e) requires
management to assign an employee returning from family leave to his or
her previous position and duty station. While this provision provides
employees the advantage of resuming the positions they previously
occupied, it does so by depriving management of any other option for the
placement of the employee. It does not, for example, permit management
to take into account any change in the circumstances affecting the
position the employee left or other positions for which the employee is
qualified and in which management may have a greater need for the
employee's services. We find that the benefit to the employee afforded
by the proposal is outweighed by the detrimental consequences of the
limitations contained in the provision on the exercise of management's
right to assign employees to positions. Section 8(e) excessively
interferes with management's rights under section 7106(a)(2)(A) and is
not an appropriate arrangement under section 7106(b)(3) of the Statute.
Section 8(e), therefore, is outside the duty to bargain.
Section 8(g)
For the reasons set forth in our discussion of Provision 2 of this
decision, we find that Section 8(g) is not inconsistent with 10 U.S.C.
Section 2304.
Section 8(g) would require the Agency to continue hospitalization and
life insurance premiums during the time an employee is on family leave,
in accordance with Federal regulations. As to both hospitalization and
life insurance we note that, while they are matters of discretion with
the Agency, the Agency has elected to follow the Federal Personnel
Manual in these matters. AR 352-3, Chapter 3-2.c. It is not alleged or
shown that the provisions of Section 8(g) conflict with the FPM. We
therefore find that Section 8(g) is within the duty to bargain. See VA
Medical Center, Dayton, 28 FLRA No. 65 (1987) (Proposals 8 and 9). See
also Provision 2 in this case.
XII. Provision 11
Article Twenty-Three -- Adverse Weather Conditions
Section 3.
When weather conditions develop during duty hours which
necessitate the closing of schools for any part of a day:
(a) Employees will be excused as soon as possible after the
students have been dismissed.
Section 4.
The Employer agrees to refrain from requiring Employees to work
under extreme cold or hot weather conditions when the request
would result in a health hazard to the Employees. Employees may
request and will be granted relief from extreme temperature
conditions on an individual or group basis as circumstances
warrant.
A. Positions of the Parties
The Agency contends that Section 3(a) conflicts with its right to
assign work under section 7106(a)(2)(B) of the Statute because it would
prevent management from assigning any work to employees for the rest of
a duty day following the release of students and would further require
that employees be released from duty.
The Agency contends that Section 4 places an absolute limit on
management's ability to assign work during duty hours so as to violate
management's right to assign work under section 7106(a)(2)(B).
The Union asserts that Section 3 merely requires the Agency to excuse
unit employees when little or no work can be accomplished. Further, the
Union contends that in certain circumstances this provision could be an
appropriate arrangement under section 7106(b)(3) of the Statute, that
is, when the event necessitating the release of students also would
mandate the early release of employees in order that they will not
suffer injury or death.
The Union contends that Section 4 is an appropriate arrangement under
section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Section 3(a)
Section 3(a) would prevent management from assigning any duties to
employees after the condition stated in the provision arises. That is,
if management elects to close schools based on weather conditions which
would necessitate excusing students, management would be required to
excuse unit employees employees as well. Proposals which seek to
prohibit or limit the assignment of duties to bargaining unit employees
are inconsistent with management's right to assign work under section
7106(a)(2)(B). See, for example, Association of Civilian Technicians
and State of Georgia National Guard, 2 FLRA 581 (1980); New York State
Nurses Association and Veterans Administration Medical Center, Bronx,
New York, 11 FLRA 578 (1983). Section 3(a) would limit the ability of
management to require employees to perform any duties once the decision
to close schools has been made. Therefore, it directly interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
Since Section 3(a) interferes with management's right to assign work
under section 7106(a)(2)(B), it is nonnegotiable unless it can be found
to be an appropriate arrangement under section 7106(b)(3) of the
Statute. Kansas Army National Guard, 21 FLRA No. 4. As explained in
Kansas Army National Guard, in order to determine whether a proposal
constitutes a negotiable appropriate arrangement, we must first
determine whether it is intended to be an arrangement for employees who
may be adversely affected by the exercise of management's rights.
It appears that the Union intends Section 3(a) to be, at least in
part, an arrangement under section 7106(b)(3) for employees adversely
affected by the exercise of management's right to assign work. The
Union's statements indicate that it intends Section 3(a) to have an
effect broader than that of mitigating the alleged adverse consequences
of requiring employees to work when weather conditions arise which
necessitate the closing of schools. The Union states that the intent of
Section 3(a) is to require management to excuse employees when little or
no work can be accomplished. Moreover, the Union asserts that in some
circumstances, presumably when the employees are trying to return to
their homes, excusing the employees as early as possible would also
prevent injury due to weather conditions. In our view, however, to
require management to excuse employees every time students are released
due to weather conditions, so as to protect employees in some
circumstances, excessively interferes with management's right to assign
work. Section 3(a), therefore, does not constitute an appropriate
arrangement under section 7106(b)(3) and is outside the duty to bargain.
Section 4
Section 4 would prevent the Agency from assigning work to unit
employees if the conditions established in the provision occur, namely,
extreme weather conditions which would result in a health hazard to the
employees. Moreover, Section 4 would require the Agency to release
employees "on an individual or group basis as circumstances warrant."
Section 4, like Section 3(a), would limit management's ability to
assign work to bargaining unit employees. For the reasons and cases
cited with regard to Section 3(a), we find that Section 4 likewise
interferes with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute.
As to whether Section 4 is an appropriate arrangement, the threshold
question is whether the proposal is intended to be an "arrangement" for
employees adversely affected by the exercise of a management right.
Here, we find that Section 4 is intended to be an arrangement for
employees adversely affected as a result of being required to work in
extreme temperatures. Section 4 attempts to ameliorate possible
detrimental consequences to the health of employees working in extreme
temperatures by requiring management to grant employees' requests to
stop working when such conditions arise.
The provision mitigates against the effects of extreme weather
conditions, however, by requiring management to stop work regardless of
the necessity of the work to be done, and regardless of the nature and
extent of the potential hazard to employees' health. The effect of the
provision, therefore, would be to restrict management's ability to
accomplish its work even where the benefit to employees of being allowed
to cease their duties would be minimal. In our view, such a proposed
amelioration excessively interferes with management's exercise of its
right to assign work.
Consequently, the provision does not constitute a negotiable
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute and it outside the duty to bargain.
XIII. Provisions 12 and 13
Provision 12
Article Twenty-Four -- Position and Pay Management
Section 3.
Employees will be classified in two categories: (1)
probationary and (2) career. Employees who are currently employed
who have not attained career status by the effective date of this
agreement and new employees shall be probationary employees until
such time as they complete a full contract year. (For purposes of
this provision, a period running consequently from 1 July until 30
June of the following year is a full contract year). Upon the
first day of commencement of his second consecutive full contract
year of employment an employee will attain career status. Once an
employee attains career status, he shall not be dismissed except
for just cause.
Provision 13
Article Thirty-One -- Disciplinary Actions
Section 2.
The Employer shall administer disciplinary procedures and
appropriate penalties to all employees in a fair and equitable
manner and for just cause.
A. Positions of the Parties
The Agency claims that these provisions, to the extent that they
would limit its right to terminate a unit employee at will, are
nonnegotiable because "(they) conflict( ) with applicable procurement
law." Agency Statement of Position at 6-7. Specifically, the Agency
contends that these provisions conflict with the Defense Acquisition
Regulations (DAR) termination clause found in each unit employee's
personal services contract, under which clause the Agency has the right
to terminate an employee for any reason. The Agency claims that because
the DAR clause was promulgated pursuant to the Armed Services
Procurement Act, it has the force and effect of law.
The Union asserts that the Agency has not claimed or demonstrated
that the DARs are Government-wide regulations within the meaning of
section 7117 of the Statute or that the regulations meet the compelling
need criteria of the Statute. Therefore, according to the Union, the
DARs may not bar the negotiation of the disputed provisions. The Union
further states that the subject matter of these provisions -- the
discipline and termination of unit employees -- is not excluded from the
statutorily-required grievance procedure under section 7121 of the
Statute. The Union maintains that the status of employees as personal
services contract personnel is merely another personnel system as
envisioned by section 7121(f) of the Statute and that this section
indicates Congressional intent that the negotiated grievance and
arbitration procedures would cover adverse actions for employees not
subject to the provisions of 5 U.S.C. Sections 4303 and 7512. The Union
also asserts that the cases relied upon by the Agency to support its
position that the DAR's have the force and effect of law are not
persuasive because those cases were decided prior to the enactment of
the Statute and further were considered and decided on other grounds.
The Union states that the Agency's arguments regarding the exclusivity
of the appeals procedures in the Procurement Act have been eroded by the
Court's decision in EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert.
dismissed, 106 S.Ct. 1687 (1986) (per curiam).
B. Analysis and Conclusions
These provisions would subject the discipline and termination of
career status employees to the negotiated grievance and arbitration
procedures.
With respect to Provision 12 in particular, the wording of the
provision indicates that on the commencement of an employee's second
full contract year, the employee could be dismissed only for just cause.
We construe this part of the provision to mean that probationary
employees, that is, employees who are in their first full contract year,
could be summarily dismissed and that this dismissal would not be
subject to the parties' negotiated grievance procedure. Provision 12 is
therefore distinguishable from the provision in Service Employees'
International Union, Local 556, AFL-CIO and Department of the Navy,
Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA No. 95 (1987). That
case, like this one, involved employees who are not subject to
probationary periods established by law and Government-wide regulation.
We held in that case that by providing for employees' to grieve their
termination during the probationary period established by agency
regulation the provision directly interfered with management's right to
hire under section 7106(a)(2)(A). Neither the wording of Provision 12
nor the record in this case would subject the termination of
probationary employees to the negotiated grievance procedure.
The Agency claims that Provisions 12 and 13 conflict with the DAR
termination clause found in each unit employee's personal services
contract. The Agency did not submit a copy of any personal services
contract or provide a copy of the termination clause referenced in its
Statement of Position. Further, the Agency did not cite any particular
section of the DARs or the Armed Services Procurement Act which support
its position. In this connection, the DARs referred to by the Agency in
its Statement of Position, published at 32 C.F.R. Chapter 1, Parts 1 to
39, were replaced by the Federal Acquisition Regulation (FAR) system as
of April 1, 1984. The general FAR published in September 1983 is
codified at Chapter 1 of Title 48. Chapters 2 through 49 of Title 48
were reserved and established for individual agency implementations of
the FAR. The FAR in Chapter 1 together with the agency regulations in
Chapters 2 to 49 comprise the Federal Acquisition Regulation System.
See subchapter A, parts 1-39, title 32 of the Code of Federal
Regulations (1986).
With respect to this case, the regulations replacing the DARs are
published in Chapter 2, of Title 48 of the Code of Federal Regulations
and are referred to as the Department of Defense Federal Acquisition
Regulation Supplement or the DOD FAR Supplement. These regulations
apply to contracts effective on April 1, 1984. Subpart 237.1 of the DOD
FAR Supplement deals with service contracts generally. This subpart
only deals with personal services contracts for experts and consultants
and not with the type of employees comprising the bargaining unit in
this case. See 48 C.F.R. Section 237.104(a) and (c). Considering this
section and noting that none of the subparts under part 237, dealing
with service contracting under the DOD FAR Supplement, are applicable to
the employees in this case, it is our view that these regulations do not
apply to the employees here.
Consequently, since the Agency does not support its contention that
these provisions are nonnegotiable and because it is not otherwise
apparent that the provisions are contrary to any law, rule, or
regulation, we conclude that Provisions 12 and 13 are within the duty to
bargain under the Statute. See, for example, National Association of
Government Employees, Security Guard Local R4-19, Portsmouth, Virginia
and Norfolk Naval Shipyard, 26 FLRA No. 22 (1987).
XIV. Order
The Agency must rescind its disapproval of Provision 1; Provision 2,
Section 3, Section 4, the first and third sentences of Section 6, and
Section 7; Provision 4; Provision 6; Provision 10, Section 8(g); and
Provisions 12 and 13. /2/
The Union's petition for review as to Provision 2, the second
sentence of Section 6; Provision 3; Provision 5; Provision 7;
Provision 8; Provision 10, Section 8(e); and Provision 11 is
dismissed.
Issued, Washington, D.C., July 31, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROVISION 9, AND PORTIONS OF PROVISION 10
I. Provision 9
Article Twenty-One, Parts A and B; Article Twenty-Two,
Parts A and B
Articles Twenty-one and Twenty-two are concerned with leave
administration. The text of the proposals is set forth in an Appendix
to this decision. Article Twenty-one is entitled "Leave Provisions For
Annual Employees." It provides that annual and sick leave shall be
earned in accordance with applicable law and regulation, and sets forth
the purposes for which leave may be requested and the manner in which
requests will be made and granted. Article Twenty-two is entitled
"Leave Provisions For Less-Than-Annual Employees. Part A provides for
earned leave and leave credit. Part B sets forth the manner in which
sick leave may be earned and credited, the purposes for which sick leave
may be requested and the manner in which requests will be made and
granted.
A. Positions of the Parties
The Agency in its disapproval of the locally executed agreement
contends that Articles Twenty-one and Twenty-two can be read so as to
bind the Agency to pay for leave in the fiscal year succeeding that in
which it is earned, from the succeeding fiscal year's appropriations.
The Agency argues that, to that extent, the Articles violate both
Comptroller General decisions and 31 U.S.C. Section 1341 (formerly 31
U.S.C. Section 665(a)), also known as the Antideficiency Act (the Act),
because the Act prohibits the obligation of funds in advance of
appropriations. The Agency cites, without more, 42 Comp. Gen. 272 and
the Federal Acquisition Regulations, 48 C.F.R Sections 32.705-1 and
53.232-18, 19. The Agency indicates, however, that the provisions of
these Articles would be acceptable if modified to ensure that payment
for annual and sick leave shall be in accordance with 31 U.S.C. Section
1341.
The Union contends generally that none of the provisions of the
parties' locally negotiated agreement are intended to interfere with
management's rights. Specifically, as to Articles Twenty-one and
Twenty-two, the Union argues that they provide only that the Agency is
bound to pay for leave earned as prescribed by the negotiated agreement
and by Agency regulations. The Union states that the Articles do not
dictate how the Agency will meet its obligation, but require only that
the Agency apply funds in a legal manner.
B. Analysis and Conclusions
1. Statutory Considerations
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 substantive proposals regarding pay and
fringe benefits which are not specifically provided for by Federal
statute and, thus, are within the agency's discretion, concern
conditions of employment and are negotiable to the extent that they are
not inconsistent with applicable laws, rules, or regulations. Id., slip
op. at 6-7.
As we found above, the employees in this case are employed with the
Agency pursuant to 20 U.S.C. Section 241 (see Provision 1) and, pursuant
to the authority granted it by 20 U.S.C. Section 241, the Agency has
promulgated regulations (AR 352-3) governing the employees' conditions
of employment (see Provision 2). Matters of leave administration are
not otherwise specifically provided for by 20 U.S.C. Section 241, and
may be determined by the Agency without regard to the provisions of
title 5 of the United States Code. AR 352-3, Chapter 1-5.d(6). Under
Eglin AFB, therefore, Provision 9 concerns a matter within the
discretion of the Agency and, unless otherwise nonnegotiable, is within
the duty to bargain. See Fort Knox Teachers Association and Board of
Education of the Fort Knox Dependents Schools, 27 FLRA No. 34 (1987)
Provision 4).
2. The Provision Does Not Violate Law
Contrary to the Agency's view, we find that Provision 9 does not
violate the Antideficiency Act. The Agency's concern is that the
provision may be read as obligating funds not yet appropriated, or funds
appropriated for a succeeding fiscal year. We find that the provision
does not create or impose such an obligation. Obligations such as
salaries and paid leave are obligations of the Government at the time
they are earned, that is, when the services that must be provided to
earn the leave have been rendered. See, for example, 38 Comp. Gen. 316
(1958). Further, the use of earned leave obligates only appropriations
which are current at the time the leave is used. Provision 9 does not
obligate funds for future services, that is, for services not
anticipated by the appropriation of funds for any given fiscal year.
Thus, we find that the provision would not obligate the Government to
expend funds in a succeeding year in violation of the Antideficiency
Act. See Fort Knox Teachers Association and Fort Knox Dependent
Schools, 26 FLRA No. 108 (1987), petition for review filed sub nom. Fort
Knox Dependent Schools v. FLRA, No. 87-3393 (6th Cir. June 25, 1987).
II. Provision 10
Article Twenty-Two, Part C, Section 8(f)
An Employee may be granted a leave of absence without pay up to
one (1) calendar year upon the birth or adoption of a child.
A. Positions of the Parties
The Agency argues that Section 8(f) is outside the duty to bargain,
to the extent that it would require management to guarantee continued
employment past the end of the period of employment covered by the
employees' personal services contracts. The Agency argues that Section
8(f) thus is inconsistent with statute, 10 U.S.C. Section 2304 and
Department of Defense Acquisition Regulations regarding the procurement
of staff for dependent schools. The Union argues that, after the
expiration of personal services contracts, employees are covered by the
parties' negotiated agreement and Section 8(f) is negotiable.
B. Analysis and Conclusions
1. Whether Section 8(f) is Inconsistent with 10
U.S.C. Section 2304
The Agency asserts that Section 8(f) conflicts with 10 U.S.C. Section
2304. For the reasons set forth in connection with our discussion of
Provision 2 above, we find that Section 8(f) does not conflict with the
cited statute.
2. Whether Section 8(f) is Otherwise Nonnegotiable
Section 8(f) would require the Agency to grant a leave of absence
without pay up to one calendar year upon the birth or adoption of a
child. As we found above with regard to Provision 9, matters of leave
administration are within the discretion of the Agency and it is not
alleged or shown that the provisions of Section 8(f) otherwise conflict
with applicable law or regulation. Section 8(f) is therefore within the
duty to bargain. See Fort Knox Dependent Schools, 26 FLRA No. 108.
III. Order
The Agency must rescind its disapproval of Provision 9 and Section
8(f) of Provision 10.
Issued, Washington, D.C. July 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DISSENTING OPINION OF CHAIRMAN CALHOUN
I. Provision 9
Provision 9 concerns the accrual and use of annual and sick leave.
In National Union of Hospital and Health Care Employees, AFL-CIO,
District 1199 and Veterans Administration Medical Center, Dayton, Ohio,
28 FLRA No. 65 (1987) (Proposals 8 and 9), we found that proposals
dealing with the accrual of leave were negotiable because they
incorporated the agency's regulations and specifically stated that the
accrual of leave set forth in the proposals was subject to any
modifications required by law or changes in the agency's governing
policy. Such is not the case here. Article Twenty-one, Part A, Section
1 provides that leave shall be earned "in accordance with applicable
statute and provisions of the Federal Personnel Manual." Under 20 U.S.C.
Section 241, the bargaining unit in this case is not subject to Office
of Personnel Management regulations governing leave. AR 352-3, Chapter
1-5.d(6). Moreover, unlike Section 8(g) of Provision 10 in this case
concerning health and life insurance, the Agency has not by regulation
adopted the leave provisions of FPM, chapter 630. Article Twenty-one,
Part A, Section 1 is therefore distinguishable from VA Medical Center,
Dayton and Section 8(g) of Provision 10. That is, that portion of
Provision 9 does not require the Agency to abide by a rate of accrual of
annual leave as set forth in applicable regulations; rather, it would
require the Agency to adopt a rate of leave accrual through negotiation.
Article Twenty-one, Part A, Section 1, therefore, is to the same
effect as Proposals 1-6 in Service Employees International Union, Local
556, AFL-CIO and Department of the Navy, Marine Corps Exchange 0911,
Marine Corps Air Station, Kaneohe Bay, Hawaii, et al., 26 FLRA No. 47
(1987), petition for review filed sub nom. Department of the Navy,
Marine Corps Exchange, Pearl Harbor v. FLRA, No. 87-7220 (9th Cir. May
21, 1987) which prescribed the particular terms under which employees
would earn leave. In that case I stated that, for the reasons given in
my dissent in American Federation of Government Employees, AFL-CIO,
Local 1987 and Department of the Air Force, Eglin Air Force Base,
Florida, 24 FLRA No. 41 (1987), I would find that proposals prescribing
the rate at which employees accrue annual leave concern a money-related
fringe benefit and, in the absence of a clear expression of
Congressional intent that such matters be negotiable, I would find that
they are outside the duty to bargain. Since Article Twenty-one, Part A,
Section 1 would bind the Agency to particular rates of accruing annual
leave which are not those established in applicable regulations, I find,
for the reasons stated in my dissent in Marine Corps Exchange, Kaneohe
Bay, that it is outside the duty to bargain.
In the absence of any indication to the contrary in the record in
this case and because of its similarity to Article Twenty-one, Part A,
Section 1, I interpret Article, Twenty-one, Part B, Section 2 concerning
sick leave likewise to bind the Agency to the provisions of the Federal
Personnel Manual. For the reasons stated above, therefore, I would also
find that portion of Provision 9 to be outside the duty to bargain. If,
however, the regulations referred to in Article Twenty-one, Part B,
Section 2 are applicable regulations other than the FPM, this portion of
Provision 9 would be negotiable for the reasons discussed in connection
with Provision 2. As to Article Twenty-two, which concerns the earning
of annual and sick leave by less-than-annual employees, because it also
prescribes substantive terms pertaining to leave which are not provided
in Agency regulations, I would find it to be outside the duty to
bargain.
II. Provision 10
For the reasons set forth in my dissent in Fort Knox Dependent
Schools, 26 FLRA No. 108, I would find Section 8(f) of Provision 10 to
be nonnegotiable.
Issued, Washington, D.C., July 31, 1987.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
(1) The Union has withdrawn its appeal as to Article 8, Section 3 and
Article 18, Section 1. Union Petition for Review at 22-23. Those
provisions will not be considered further.
(2) In finding these provisions to be within the duty to bargain the
Authority makes no judgment as to their merits.
APPENDIX
ARTICLE TWENTY-ONE
LEAVE PROVISIONS FOR ANNUAL EMPLOYEES
A. ANNUAL LEAVE:
Section 1 Annual Employees shall earn leave in accordance with
applicable statute and provisions of the Federal Personnel Manual.
Section 2 All requests for annual leave will be made by the Employee
to the supervisor or an individual designated by the supervisor.
Section 3 Approval of an annual Employee's request for accrued annual
leave for vacation purposes (forty (40) hours or more) may be granted,
subject to work load requirements and available manpower, provided the
Employee gives the appropriate supervisor advance notice of not less
than four (4) weeks. Accrued Annual leave for vacation purposes once
approved, will not be cancelled except in cases of operational
requirements which require additional Employees to be available for
work. When the Employer finds it necessary to cancel previously
approved leave, the reasons for such action will be explained to the
affected Employee(s).
Section 4 Accrued annual leave for short periods eight (8) hours or
less will be granted upon request of the annual Employee subject to work
load and manpower requirements.
Section 5 Request for accrued annual leave to cover emergency
situations or unforeseen circumstances should be made in advance to the
maximum extent possible and will be granted on an individual basis.
Section 6 Any annual Employee having accrued annual leave may apply
in advance for leave and such leave with pay may be approved for any
workday which occurs on the annual Employee's birthday or a religious
holiday associated with the religious faith of the annual Employees,
unless the granting of such leave would adversely affect the operation
of the Employer.
Section 7 The Employer will provide annual Employees the opportunity
to use accrued annual leave during the leave year to avoid forfeiture.
All eligible Employees will be encouraged to take annual leave during
school vacation periods. The leave year is defined as the period
beginning with the first complete pay period in a calendar year and
ending with the day immediately before the first day of the first
complete pay period in the following calendar year.
Section 8 The Employer and the Employee have the mutual
responsibility to plan and schedule the use of accrued annual leave for
vacation purposes throughout the leave year. If voluntary arrangements
cannot be agreed upon, the Employer will schedule annual leave with due
consideration for workload, manpower requirements and Employee desires.
When two (2) or more Employees have conflicting desires, leave will be
granted on first come, first served basis.
B. SICK LEAVE:
Section 1 The Union joins Management in recognizing the insurance
value of sick leave and agrees to encourage Employees to conserve such
leave so it will be available to them in case of extended illness or for
annuity computation upon retirement. The Union will cooperate with the
Employer to encourage Employees to give advance notice of incapacitation
for duty.
Section 2 Employees shall earn and be granted sick leave in
accordance with applicable statutes and regulations. Sick leave, if
available, shall be granted to Employees when they are incapacitated for
the performance of their duties by sickness, injury, pregnancy, or
medical confinement, or for medical, dental, or optical examination or
treatment. Sick leave may also be granted when a member of the
immediate family of the Employee is afflicted with a contagious disease
requiring attendance of the Employee as determined by a registered
practicing physician.
Section 3 Each Employee will personally notify his supervisor or an
individual designated by his supervisor as soon as practicable, normally
by telephone, if he is prevented from reporting to work because of an
incapacitating illness or injury. In the event the supervisor or
designated individual is not readily available, the Employee will have
fulfilled his responsibility by contacting his supervisor's office and
providing notification. Employees will be given such notice prior to
the start of their duty day. Employees sent home from work because of
illness shall be subject to the foregoing reporting requirement on the
following workday if still incapacitated. When any absence due to
illness extends from one workweek into another, the Employee shall
notify his supervisor on the first day of the second week and on the
first day of each week thereafter until his return to duty.
Section 4 Employees will be required to furnish an acceptable medical
certificate to substantiate all periods of absence due to sickness which
exceed three (3) consecutive workdays. The medical certificate must be
furnished within three (3) workdays after return to duty. In individual
cases where an Employee has been given a letter of requirement or has
been granted sick leave because a member of the immediate family is
afflicted with a contagious disease requiring attendance of the
Employee, as determined by appropriate medical authority, an acceptable
medical certificate will be furnished to substantiate any absence due to
sickness regardless of duration. An acceptable medical certificate is
defined as a written statement signed by a registered practicing
physician, or other licensed practitioner, certifying to the
incapacitation examination, treatment or the period of disability of any
Employee while he was undergoing professional treatment.
Section 5 Sick leave requests for medical, dental, or optical
examinations or treatment will be submitted for approval in advance,
with minimum amounts of leave requested consistent with mission
requirements. Normally, no more than four (4) hours of sick leave will
be granted for medical examination or treatment.
Section 6 An acceptable medical certificate is required for every
sick leave absence requiring attendance of an Employee at home because a
member of the immediate family is afflicted with a contagious disease.
The certificate will show the Employee's name, the name of the afflicted
family member, the name of the disease, and the period of time that the
Employee must attend the afflicted family member. The certificate must
be signed by a registered practicing physician.
Section 7 Letters of requirement may be issued by Employee(s) by the
Employer where there is reason to suspect the Employee is abusing sick
leave privileges. Normally, prior to the issuance of the letter, the
Employee will be counselled as to his supervisor's concern and informed
that he may be issued the letter if continuing his suspicious leave
habits. In such cases, the Employee will be advised in writing that,
because of this questionable sick leave record, an acceptable medical
certificate will be required for each subsequent absence on sick leave,
regardless of duration.
Section 8 Letters of Requirement will be reviewed by the issuing
official six (6) months from the date of issue. If the conditions of
the letter of requirement have been met, the letter will be withdrawn;
otherwise, the requirement may be extended for an additional one (1)
year period.
Section 9 Unearned sick leave may be advanced to an Employee in cases
of serious illness or disability upon his request in accordance with
applicable statutes and regulations. Criteria for advancing sick leave
are: (a) Absence would result in a nonpay status due to serious
disability or ailment for which there is inadequate leave accrual; (b)
the Employee's sick leave record clearly indicates a pattern fully
consistent with the principles governing proper use of sick leave; (c)
all compensatory time and accrued sick leave have been used; (d)
medical prognosis and other evidence provide reasonable assurance that
the Employee will be able to resume duty on a regular basis and accrue
sufficient sick leave credit to liquidate the amount advanced; and (e)
the application for advanced sick leave is supported by an acceptable
medical certificate signed by a physician or medical practitioner. The
amount of sick leave advanced to an Employee's account may never exceed
thirty (30) days.
Section 10 It is agreed that actual time spent by Employees in
obtaining examination or treatment as the result of a job-incurred
illness, disease or injury, shall be in a duty status on the first day
of such treatment and will not be charged to sick leave. Should the
employee be sent home as a result of that illness, disease, or injury,
administrative excused time will be charged beginning at the time the
Employee was referred to the health care facility and for the balance of
the duty day. Absences on subsequent days as the result of that
illness, diseases or injury will be handled in accordance with
provisions covering continuation of pay. The Employee may request leave
without pay (LWOP) to cover this period of absence.
ARTICLE TWENTY-TWO
LEAVE PROVISIONS FOR LESS-THAN-ANNUAL EMPLOYEES
A. EARNED LEAVE:
Section 1 Less-than-Annual Employees will be granted leave with pay,
if earned, on all regular school vacation periods. Less-than-Annual
Employees shall be in a leave-without-pay status during summer months
when services are not required and such time shall be creditable for
Civil Service retirement to the extent provided for by appropriate
Federal regulations.
B. SICK LEAVE:
Section 1 The Union joins Management in recognizing the insurance
value of sick leave and agrees to encourage Employees to conserve such
leave so it will be available to them in case of extended illness or for
annuity computation upon requirement.
Section 2 All less-than-annual Employees will be granted sick leave
with pay, if earned, not to exceed ten (10) days per term of employment,
plus the number of sick leave days accrued, but not used, by the
Employee in preceding periods of Federal employment.
Section 3 Sick leave, if available, shall be granted to Employees in
hourly increments when they are incapacitated for the performance of
their duties by sickness, injury, pregnancy, or medical confinement, or
for medical, dental, or optical examination or treatment. Sick leave
will normally be granted in hourly increments when a member of the
Employee's immediate family becomes ill or is involved in an accident
requiring the Employee's attendance. During the first hour of granted
sick leave, the Employee shall determine if and when he will be able to
return to work in order that the Employer may make appropriate
arrangements for a substitute. "Immediate family" in this instance is
defined as spouse, dependent children and parents residing in the same
household. Sick leave may also be granted when a member of the
immediate family of the Employee is afflicted with a contagious disease
requiring attendance of the Employee as determined by a registered
practicing physician.
Section 4 Each Employee will personally notify his supervisor or an
individual designated by his supervisor as soon as practicable, normally
by telephone, if he is prevented from reporting to work because of an
incapacitating illness or injury. In the event the supervisor or
designated individual is not readily available, the Employee will have
fulfilled his responsibility by contacting his supervisor's office and
providing notification. Employees will give such notice prior to the
start of their duty day. Employees sent home from work because of
illness shall be subject to the foregoing reporting requirement on the
following workday if still incapacitated. When any absence due to
illness extends from one workweek into another the Employee shall notify
his supervisor on the first day of the second week and on the first day
of each week thereafter until his return to duty.
Section 5 Employees may be required to submit an acceptable medical
certificate in substantiation of each absence due to claimed illness of
any duration and will be required to furnish an acceptable medical
certificate to substantiate all periods of absence due to sickness which
exceeds three (3) consecutive workdays. The medical certificate must be
furnished within three (3) workdays after return to duty. An acceptable
medical certificate is defined as a written statement signed by a
registered practicing physician, or other licensed practitioner,
certifying to the incapacitation, examination, treatment, or the period
of disability of an Employee while he was undergoing professional
treatment.
Section 6 Sick leave requests for medical, dental, or optical
examination or treatment will be submitted for approval in advance, with
minimum amounts of leave requested consistent with mission requirements.
Normally, no more than four (4) hours of sick leave will be granted for
medical examinations or treatment.
Section 7 An acceptable medical certificate is required for every
sick leave absence requiring attendance of an Employee at home because a
member of the immediate family is afflicted with a contagious disease.
The certificate must be signed by a registered practicing physician.
Section 8 Letters of requirement may be issued to Employee(s) by the
Employer where there is reason to suspect the Employee is abusing sick
leave privileges. Normally, prior to issuance of the letter, the
Employee will be counselled as to his supervisor's concern and informed
that he may be issued the letter if continuing his suspicious leave
habits. In such cases, the Employee will be advised in writing that,
because of his questionable sick leave record, an acceptable medical
certificate will be required for each subsequent absence on sick leave,
regardless of duration.
Section 9 Letters of Requirement will be reviewed by the issuing
official six (6) months from the date of issue. If the conditions of
the letter of requirement have been met, the letter will be withdrawn;
otherwise, the requirement may be extended for an additional one (1)
year period.
Section 10 Unearned sick leave may be advanced to an Employee in
cases of serious illness or disability upon his request in accordance
with applicable statutes and regulations. Criteria for advancing sick
leave are: (a) Absence would result in a nonpay status due to serious
disability or ailment for which there is inadequate leave accrual; (b)
the Employee's sick leave record clearly indicates a pattern fully
consistent with the priniciples governing proper use of sick leave; (c)
all compensatory time and accrued sick leave subject to forfeiture have
been used; (d) medical prognosis and other evidence provide reasonable
assurance that the Employee will be able to resume duty on a regular
basis and accrue sufficient sick leave credit to liquidate the amount
advanced; and (e) the application for advanced sick leave is supported
by an acceptable medical certificate signed by a physician or medical
practitioner. The amount of sick leave advanced to an Employee's
account may (n)ever exceed thirty (30) days.
Section 11 It is agreed that actual time spent by Employees in
obtaining examination or treatment as the result of a job-incurred
illness, disease or injury, shall be in a duty status on the first day
of such treatment and will not be charged to sick leave. Should the
employee be sent home as a result of that illness, disease, or injury
administrative excused time will be charged beginning at the time the
Employee was referred to the health care facility and for the balance of
the duty day. Absence on subsequent days as the result of that illness,
disease or injury will be handled in accordance with the provisions
governing continuation of pay. The Employee may request leave without
pay (LWOP) to cover this period of absence.
C. OTHER LEAVES AND ABSENCES:
Section 8 Family Leave.
(a) In accordance with the Equal Opportunity Act of 1972, female
Employees shall not be penalized in their condition of employment
because they require time away from work caused by or contributed to by
pregnancy, miscarriage, abortion, childbirth, and/or recovery. The use
of leave in this regard will be treated in the same manner as any other
temporary disability, and female Employees will neither be penalized nor
given preferential treatment for maternity reasons;
(b) Any absence for maternity reasons may be chargeable to sick
leave, personal leave or leave without pay. An employee may use sick
leave when she is disabled and unable to perform the duties of her job
as a result of pregnancy;
(c) Family leave, normally not to exceed six (6) months, will be
granted Employees;
(d) There will be no limitation of employment before childbirth.
However, after consultation with her physician and the Employer, a
decision will be made on an individual basis as to how far into
pregnancy the Employee may continue to work and when she may return to
work. Such information should be furnished to an individual's principal
on a form furnished by the Employer and verified by the attending
physician;
(e) Reinstatement to one's former position and duty station will be
made upon the Employee's return to work, except when the period of
temporary disability exceeds thirty (30) days, the Employer shall
determine when the unit member shall be reinstated, in consultation with
the Employee;
(f) An Employee may be granted a leave of absence without pay up to
one (1) calendar year upon the birth or adoption of a child; and
(g) Hospitalization and life insurance premiums will continue in
effect during a family leave period in accordance with Federal
regulations.
28 FLRA NO. 65
Nat'l Union of Hospital and Health Care Employees, District 1199, and
VA Medical Center, Dayton, Ohio, Case No. 0-NG-1072 (decided July 31,
1987)
STATUTE
7103(a)(14)
7105(a)(2)(D) & (E)
7106(a)(2)(A), (B), (C);
7106(b)(1), (2)
7117(a)(2)
SUBJECT MATTER INDEX ENTRIES
ASSIGN EMPLOYEES, RESERVED MGM'T RIGHT
DETAILS
HEALTH AND SAFETY
ASSIGN WORK, RESERVED MGM'T RIGHT
ELEMENT OF THE RIGHT
DUTIES AND WORK TO BE ASSIGNED
PROHIBITING ASSIGNMENT OF CERTAIN DUTIES
PARTICULAR EMPLOYEES OR POSITIONS TO BE ASSIGNED
NON-BARGAINING-UNIT EMPLOYEES
MANAGEMENT OFFICIALS
SUPERVISORS
HOURS OF WORK
LEAVE
TRAINING
COMPELLING NEED (7117(a)(2))
CRITERIA AND STANDARDS
ESSENTIAL TO ACCOMPLISHMENT OF AGENCY'S MISSION
GENERALIZED AND CONCLUSIONARY REASONING DOES NOT SUPPORT
GRIEVANCE PROCEDURE, NEGOTIATED
GRIEVABILITY/ARBITRABILITY (SCOPE)
MEDICAL EMPLOYEES (38 U.S.C. 4101-4119)
HEALTH AND SAFETY
COMMITTEE
HEALTH-CARE PROFESSIONALS
CONDITIONS OF EMPLOYMENT
SCOPE OF GRIEVANCE PROCEDURE
HOURS OF WORK
REST PERIODS AND BREAKS
SHIFT ASSIGNMENTS
FAIR AND EQUITABLE BASIS
FREQUENCY OF CHANGES IN SHIFT ASSIGNMENTS
INTERVAL BETWEEN SHIFTS
PARTICULAR SHIFTS, ASSIGNMENT TO
STARTING AND QUITTING TIMES
FOR UNION OFFICIALS
TIMING OF WORK ASSIGNMENTS
HIRING OR ASSIGNING EMPLOYEES TO WORK AT SPECIFIC TIMES
WHEN THE WORK OF A POSITION WILL BE PERFORMED
LEAVE
ANNUAL LEAVE OR VACATION PAY
SICK LEAVE OR SICK PAY
MANAGEMENT RIGHTS: GENERALLY
DELIBERATIVE PROCESS LEADING TO EXERCISE OF RESERVED MGM'T RTS
NEGOTIABILITY PROCEDURE
BURDEN OF CREATING A RECORD
WORDS AND PHRASES USED IN PROPOSAL NOT EXPLAINED ADEQUATELY
NUMBERS, TYPES, AND GRADES OF EMPLOYEES, DETERMINATION OF HEALTH AND
SAFETY
SPECIFYING NUMBER OF EMPLOYEES ASSIGNED TO ANY PROJECT
PERFORMANCE APPRAISAL SYSTEM
NEGOTIABILITY, GENERALLY
PROCEDURES AND APPROPRIATE ARRANGEMENTS'
POSITION, FILLING OF
NON-BARGAINING-UNIT EMPLOYEES
NOT "RELATED" to C.O.E.'s OF BARGAINING-UNIT EMPLOYEES
PRIORITY OR PREFERENTIAL TREATMENT
BARGAINING-UNIT EMPLOYEES
QUALIFICATIONS
PROCEDURES, MANDATORY SUBJECTS OF BARGAINING (7106(b)(2))
HOURS OF WORK
PERFORMANCE APPRAISAL SYSTEM
POSITIONS, FILLING OF
UNITED STATES CODE
38 U.S.C. SECTION NOT SPECIFIED)
38 U.S.C. 4106(b)
38 U.S.C. 4107(h)(1) (RE BAYLOR PLAN)
38 U.S.C. 4110
DIGEST NOTES
The Authority considered twenty-one proposals in this negotiability
appeal.
The Authority addressed preliminarily two objections posed by the
Veterans Administration to all the proposals: firstly, that Title 38 of
the United States Code invests the Administrator of the Veterans
Administration with the authority to regulate the conditions of
employment of professional medical employees in its Department of
Medicine and Surgery, and that the agency, therefore, had no duty to
bargain under the FSLMR Statute; and secondly, that the proposals were
rendered nonnegotiable by the agency's "legislative regulations." The
Authority rejected both arguments, citing precedent that the VA
generally has the duty to bargain over the conditions of employment of
such employees; and that the VA's personnel regulations are not
government-wide, and therefore can bar negotiations only if they meet
the section 7117(a)(2) test of compelling need. The Authority then
addressed the agency's objections to the individual proposals.
A nonnegotiable proposal dealt with staffing. A requirement that
management "make every reasonable effort" to maintain adequate staffing
levels was held to concern the numbers, types, or grades of employees or
positions assigned to a particular tour of duty, negotiable only at
management's election, under section 7106(b)(1). (first sentence,
proposal 1) The remainder of the proposal, which would have prohibited
management from assigning registered nurses to replace employees outside
the bargaining unit, except in emergencies, was deemed a violation of
management's section 7106(a)(2)(B) right to assign work. (final two
sentences, proposal 1)
A nonnegotiable proposal with several sections concerned employee and
union participation on the Nursing Service Committee and Nurse
Professional Standards Board. One provision would have afforded the
union representation on all service committees "which do not consist
entirely of matters related to management's internal business." The
Authority interpreted the provision to allow union participation in
committees with some functions relating to management's "internal
business"; as such, the Authority deemed the provision an interference
with the deliberative process leading to the exercise of reserved
management rights. (section 1, proposal 2) A provision which would have
required management to seat at least four union nominees to the
Professional Standards Board was ruled 7106(a)(2) rights. The Authority
distinguished the provision from those ruled negotiable in other cases,
which had provided for union nominees to such boards, but had not
required management to seat any such nominee. (section 2) A provision
for official time during their regular working hours for union
representatives serving on the committees referred to in section 1 would
be negotiable, said the Authority, if section 1 were revised to exclude
union participation on committees dealing with management's internal
business. (paragraph 1, section 4) A segment that would have provided
compensatory time for labor-management activities engaged in outside the
participants' regular working hours was ruled nonnegotiable. (paragraph
2, section 4, proposal 2)
Two negotiable proposals would establish a negotiated grievance
procedure, to exclude matters covered by the appeals procedures of 38
U.S.C. 4110. Authority precedent disposed of the agency's arguments
against the proposals. (proposals 4 and 5)
A proposal dealing with training was ruled partly within and partly
outside the duty to bargain. A section requiring management to ensure
the equitable distribution of educational opportunities was ruled
negotiable. (section 3, proposal 6) A section which would have
designated a particular management official to serve upon a joint
labor-management committee was ruled nonnegotiable, as a violation of
the section 7106(a)(2)(B) right to assign work. (section 4, proposal 6)
A proposal concerning proficiency reports and promotions was ruled
partly within and partly outside the duty to bargain. Portions of the
proposal assigning counseling duties to certain management officials and
supervisors were ruled nonnegotiable, under the rule that the
designation of a particular manager to perform a specified task is a
violation of an agency's section 7106(a)(2)(B) right to assign work.
(sentence 1, paragraph 1, section 3; paragraph 2, section 3; sentence
2, section 5, proposal 7) A requirement that nurses be notified within
thirty days of actions taken by the Professional Standards Board was
ruled a negotiable procedure. (sentence 1, section 5) A requirement
that nurses be considered annually for promotion was ruled negotiable.
(last sentence, section 5, proposal 7)
Two proposals establishing rates of accrual for annual and sick leave
were ruled negotiable. The Authority ruled that the terms under which
nurses accrue leave are within the discretion of the Veterans
Administration under federal law; and the proposals stated explicitly
that the accrual rates would be subject to any modifications required by
law or agency policy. (proposals 8 and 9)
A negotiable proposal would provide that scheduled holidays be
distributed "in an equitable manner." The Authority ruled that the
proposal was a negotiable procedure by which the agency might exercise
its right to assign work. (proposal 10)
A negotiable proposal would provide a break period for employees, and
would provide that overtime and compensatory time be in accord with a
provision of the parties' expired contract. The Authority ruled that
the sections establishing a break period did not conflict with the
agency's section 7106(a)(2)(B) right to assign work. (sections 1 and 2,
proposal 11) The Authority ruled that the overtime and compensatory time
issues were not specifically provided for by Title 38 of the United
States Code, and so were not excluded from bargaining. (section 4,
proposal 11)
A proposal concerning the filling of vacancies and posting of
assignments was ruled partly within and partly outside the duty to
bargain. A segment requiring the agency to use internal recruitment as
much as possible when filling vacancies was ruled a negotiable
procedure. (sentences 2 and 3, section 1, proposal 12) A requirement
that unit employees be given "full consideration" for vacancies or
assignments was within the duty consideration" for vacancies or
assignments was within the duty to bargain. (sentence 1, section 2) A
provision which in effect would have established VA nursing experience
as a selective factor to be used by management in filling vacancies was
ruled nonnegotiable, as an infringement upon management's section
7106(a)(2)(C) right to make selections. (sentences 2 and 3, section 2)
A requirement that management post vacancy announcements for at least
seven days and set a deadline for submission of applications was ruled a
negotiable procedure. (section 3) A provision establishing procedures
to be followed in filling supervisory positions was held to be
negotiable only at the election of the agency. (section 4) A segment
providing for educational counseling for employees passed over for
promotion because of a lack of specific training was ruled a negotiable
procedure. (sentence 4, section 7) A provision which would have
required management to grant such employees' requests for particular
training was ruled a violation of the agency's right to assign work.
(final two sentences, section 7, proposal 12)
A nonnegotiable proposal would have established two separate working
groups -- a "core group" of nurses assigned to the day shift, and a
"float pool" of nurses to relieve others. The Authority ruled that the
proposal violated the agency's section 7106(a)(2)(B) right to determine
which employees would work on a particular shift. A segment which would
have placed limits on management's ability to assign nurses to extended
details was ruled a violation of the section 7106(a)(2)(A) right to
assign employees. (sentence 1, section 5, proposal 13) Only the final
sentences of section 5, which listed procedures for informing employees
of details and assigning employees to details, were deemed negotiable.
(proposal 13)
A nonnegotiable proposal would have required the agency to attempt to
assign newly-hired nurses to "odd" tours of duty after "appropriate
orientation." The Authority determined that the proposal violated the
agency's right to assign work. (proposal 14)
A proposal dealing with work schedules was held to be partly within
and partly outside the duty to bargain. Segments of the proposal which
would have assigned certain duties to non-unit personnel were ruled
nonnegotiable under section 7106(a)(2)(B). (pertinent wording of
sections 4.c, 4.d, 7.a, and 7.b, proposal 15) A requirement that
employees "normally" have fifteen and a half hours of non-duty time
between shifts was ruled nonnegotiable, on grounds that it would
prohibit the assignment of nurses with special skills required for
patient care. (section 4.c) A provision that rotations be distributed
equitably was within the duty to bargain (sentence 2, section 4.d), as
was a requirement that assignments be made fairly and equitably (section
4.e). A provision for modifying or adjusting schedules in emergencies
was a negotiable procedure. (sentence 1, section 7) A requirement that
nurses be assigned according to a roster based on previous assignments
was nonnegotiable. (last sentence, section 7.b, proposal 15)
A nonnegotiable proposal would have required the agency to "make
every effort" to assign ill or injured employees to light-duty work.
The Authority deemed the proposal an interference with the agency's
section 7106(a)(2)(A) and (B) rights to direct employees and to assign
work. (proposal 16)
A nonnegotiable proposal would have limited the agency's ability to
assign non-professional duties, such as housekeeping and clerical work,
to professional nurses. Because the proposal did not include an
explicit recognition that the assignment of non-nursing functions was
subject to management's right to assign work, the Authority ruled that
the proposal was outside the duty to bargain. (proposal 17)
A nonnegotiable proposal would have prohibited the assignment of
nurses to new, unfamiliar duties without orientation or training, except
in emergencies. The Authority deemed the proposal an interference with
management's section 7106(a)(2)(B) right to assign work. (proposal 18)
A proposal addressing itself to the health and safety of employees
was ruled partly negotiable and partly nonnegotiable. A segment which
generally would have precluded management from assigning an employee to
work alone or in isolated areas was ruled nonnegotiable, as an
interference with management's right to assign work and with its
7106(b)(1) right to determine the number of employees assigned to any
project or tour of duty. (section 2.a, proposal 19) A segment that
would make employee safety and health problems subject to the grievance
procedure was ruled negotiable. (section 3.d) The Authority ruled that
it was unable to make a determination of negotiability as to the last
segment of the proposal, because its wording was unclear. (section 3.e,
proposal 19)
A negotiable proposal dealth with implementation of the Baylor Plan,
which gives the Administrator of the VA discretion to establish an
administrative work week that includes two twelve-hour shifts. The
Authority ruled the proposal a negotiable procedure, agreeing with the
union that the proposal did not restrict the agency's discretion to
decide whether to implement the Baylor Plan or not. (proposal 20)
A nonnegotiable proposal dealt with the "closed-unit" system, under
which employees assigned to a unit would be permitted to develop their
own staffing schedules to meet the requirement of around-the-clock
coverage. The Authority held that the proposal interfered with the
agency's right to assign work, because it would give employees "full
discretion to assign themselves duties and to establish their own work
schedules." (proposal 21)
The negotiability of the remaining sections and subsections of
various proposals was decided by majority opinion.
A negotiable proposal would require the agency to assign certain
union officials permanently to the day shift. The proposal was similar
to one found negotiable in an earlier case. (majority opinion, proposal
3)
A negotiable section of a proposal would require the agency to fill
vacancies "in an expeditious manner." The provision was similar to one
held negotiable in an earlier case. (majority opinion, section 1,
proposal 12)
Sections of a proposal regarding requests for changes in work
schedules and days off were ruled partly within and partly outside the
duty to bargain. Segments prescribing certain responsibilities for
supervisors were ruled inconsistent with the right to assign work.
(majority opinion, first sentences of sections 5 and 6, proposal 15)
Segments providing that requests for changes in schedules or trades of
days off not be "unreasonably denied" were ruled within the duty to
bargain. (majority opinion, last sentences of sections 5 and 6,
proposal 15)
Case No. 0-NG-1072
NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, AFL-CIO,
DISTRICT 1199
Union
and
VETERANS ADMINISTRATION MEDICAL CENTER DAYTON, OHIO
Agency
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
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 all or part of 21 proposals.
II. Preliminary Matters
The Veterans Administration (VA or Agency) raises two common issues
with respect to the negotiability of each proposal in this case, namely
that: (1) Title 38 of the United States Code provides the Administrator
of the VA with statutory authority to regulate conditions of employment
of professional medical employees in the Department of Medicine and
Surgery (DM&S) and therefore the Agency has no duty to bargain under the
Statute; and (2) the proposals are barred from negotiations by its
"legislative regulations" which have the force and effect of law. For
the following reasons we reject the Agency's contentions.
In Colorado Nurses Association and Veterans Administration Medical
Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review
filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C.
Cir. Feb. 25, 1987), we held that the Statute applies to DM&S employees
and that as a general matter the Agency has a duty to bargain over their
conditions of employment. /1/ In so holding, we rejected the Agency's
contentions that certain sections of Title 38 barred negotiations under
the Statute of DMS employees' conditions of employment and that the
Agency's personnel regulations constitute "legislative regulations"
which have the force and effect of law. To the extent that similar
issues are presented here, we reaffirm our holdings for the reasons
stated in VA Medical Center, Ft. Lyons.
In addition, since the Agency's personnel regulations apply only
within the VA itself, they are not Government-wide regulations within
the meaing of section 7117(a)(1) of the Statute. See VA Medical Center,
Ft. Lyons, An agency's regulation can bar negotiations on a conflicting
Union proposal, therefore, only if a compelling need exists for that
regulation under section 7117(a)(2) of the Statute and section 2424.11
of our Regulations. In American Federation of Government Employees,
AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison
Region, 21 FLRA No. 104 (1986), the Authority stated that in order to
show a compelling need for an agency regulation, 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 standards in section 2424.11 of our Regulations.
The Agency does not make any claim that a compelling need exists for
those regulations which are asserted to bar negotiations of Proposals 2,
3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 20, and 21. See Appendix A to this
decision for the specific regulations alleged by the Agency to bar
negotiations on those proposals. Therefore, the Agency's regulations
cannot serve to bar negotiations on the proposals listed above.
Accordingly, we find that there is no conflict between Title 38 of
the United States Code and the duty to bargain under section 7117 of the
Statute. To the extent that the Agency raises those same general
arguments as to each proposal in issue, we will not restate those
contentions and we will not further consider those issues. We now turn
to the specific proposals and the other issues involved in this case.
III. Proposal 1
Article VIII - Staffing
New: Section 8. The Medical Center will make every reasonable
effort to maintain adequate staffing levels sufficient to meet the
capacity of the unit, the needs of the patients, and the safety of
employees. The Medical Center will make every reasonable effort
to replace nursing personnel who are absent from work. Except in
emergency staffing situations, registered nurses will not be
utilized to replace employees outside of the bargaining unit.
Normally, registered nurses will only be utilized to replace other
registered nurses.
A. Positions of the Parties
The Agency contends that Proposal 1 would violate its rights under
section 7106(a)(2)(A) and (B) to assign employees and to assign work and
under section 7106(b)(1) to determine the numbers, types, and grades of
employees assigned to a tour of duty. The Agency maintains that the
proposal would subject any management decision to assign a nurse to
replace an employee outside the bargaining unit to a potential grievance
over whether the duties assigned were "not normally" to be performed by
nurses in the bargaining unit. The Agency also contends that the
proposal is integrally related to the number of employees in the
bargaining unit and, under section 7106(b)(1) of the Statute, is
negotiable only at the election of the Agency. The Agency further
contends that Proposal 1 is contrary to VA regulations for which a
compelling need exists under section 7117(a) and (b) of the Statute.
The Union disputes the Agency's contentions that the proposal is
inconsistent with the requirements for patient care and asserts that the
proposal only requires that management exert reasonable efforts to
attain permissible objectives in this area.
B. Analysis and Conclusions
The first sentence of Proposal 1 requires that the Agency make "every
reasonable effort" to maintain adequate staffing levels. Proposals
which relate to the staffing of a tour of duty concern management's
determination of the numbers, types, and grades of employees or
positions assigned to that tour of duty. Where such proposals are
integrally related so as to be determinative of the numbers, types, or
grades of employees assigned to a tour of duty, they are negotiable only
at the election of the Agency under section 7106(b)(1) of the Statute.
See, for example, National Federation of Federal Employees and Haskell
Indian Junior College, Bureau of Indian Affairs, Department of the
Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986) (Proposal 1).
Proposal 1 would subject the Agency's decisions as to what
constitutes adequate staffing levels to a substantive criterion. Thus,
the Agency's decisions on those matters would, if challenged by the
Union, be subjected to a determination by an arbitrator as to whether
the Agency had made "every reasonable effort" to maintain the level of
staffing the arbitrator judges to be adequate. By authorizing an
arbitrator to substitute his or her judgment, as to adequate staffing,
the first sentence of Proposal 1 would be determinative of the numbers,
types, and grades of employees assigned to a tour of duty. Therefore,
to this extent Proposal 1 is outside the duty to bargain because it
involves a matter under section 7106(b)(1) on which the Agency has
elected not to bargain.
The remaining sentences of Proposal 1 would impose substantive
criteria on the Agency's right to assign work. That is, the proposal
requires that management will make every reasonable effort to replace
nursing personnel who are absent from work. Nurses could not be used to
replace employees outside the bargaining unit "(e)xcept in emergency
staffing situations" and could "normally" be used to replace only other
nurses. This portion of the proposal is similar to Proposal 4 in VA
Medical Center, Ft. Lyons, which we held to violate management's right
to assign work under section 7106(a)(2)(B). For the reasons set forth
in that decision, we find that Proposal 1 is also outside the duty to
bargain because it directly interferes with the right to assign work.
Because we find the proposal to be outside the duty to bargain, it is
not necessary to consider the Agency's contention that it conflicts with
an Agency regulation for which a compelling need exists.
IV. Proposal 2
Article 18 - Committee and Board Membership
Section 1. The Union shall have the right to representation on
all appropriate Nursing Service Committees, including newly formed
or restructured service committees. Appropriate service
committees shall be defined as those which do not consist entirely
of matters related to management's internal business, or of
retained management rights.
Section 2. The Union shall have the right to nominate unit
employees for membership on the Nurse Professional Standards
Board. At least four (4) of the nominees shall be seated as
members of the Board and shall have full rights and privileges,
provided there are four (4) nominees who are qualified. At least
one member of the station designated Board will be in the grade or
above the grade of the candidate under consideration.
Section 4, paragraph 1. Union designated representatives,
excluding those on permanent off tours, to standing Service or
Center Committees will be scheduled in a duty status for regularly
scheduled meetings.
Section 4, paragraph 2. Permanent off tour committee members
will be authorized compensatory time for their attendance at
scheduled committee meetings.
A. Positions of the Parties
The Agency contends that Section 1 is nonnegotiable because the
Nursing Service Committees referred to in the proposal are committees
whose functions, among others, include deliberations that are an
integral part of management's decision-making process; since the
proposal guarantees the Union a role on such committees, the proposal
interferes with management's rights under section 7106 of the Statute.
The Union argues that the committees are professional rather than
managerial and that the proposal does not imply that the Union has any
right to make management decisions.
The Agency argues that Section 2 interferes with its rights under
section 7106(a)(2)(A) to hire, assign and retain employees. Reading
Section 4 together with Section 2, the Agency argues that the proposal
further interferes with management's rights under section 7106(b)(1) to
determine the numbers, types, and grades of employees assigned to a
particular tour of duty. The Union argues that its proposal would have
no effect on management's decisions in that regard. Also, the Agency
argues that paragraph 2 of Section 4 is nonnegotiable because the
payment of compensatory time is governed by the specific provisions of
38 U.S.C. Section 4107(e)(5). The Union states that paragraph 2 deals
only with the rights to request compensatory time.
B. Analysis and Conclusions
Section 1
We find Section 1 of Proposal 2 to be nonnegotiable. While the
proposal itself does not state what the functions of the service
committees shall be, the proposal refers to newly formed and
restructured committees and defines service committees as those "which
do not consist entirely of matters related to management's internal
business." In our view, as argued by the Agency, this would include
service committees any portion of whose function relates to management's
internal business. The Authority has consistently held nonnegotiable
proposals which require union participation in the deliberative process
leading to the exercise of rights reserved to management by section 7106
of the Statute. 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
No. 9 (1987) (Provision 17); Fort Knox Teachers Association and Fort
Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 3); National
Federation of Federal Employees, Local 1431 and Veterans Administration
Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Section 1
of Proposal 2 would have the effect of directly interfering with
management's statutory right to make the decisions involved and
therefore is outside the duty to bargain. However, if Section 1 of
Proposal 2 were revised to make clear that the Union's right to
representation did not include the right to serve on committees any
portion of whose function relates to management's internal business, it
would be negotiable. See National Federation of Federal Employees,
Local 2059 and U.S. Department of Justice, U.S. Attorneys' Office,
Southern District of New York, New York, 22 FLRA No. 13 (1986)
(Provision 1).
Section 2
We find that Section 2 of Proposal 2 is nonnegotiable. Section 2 of
Proposal 2 would require that, once the Union has nominated unit
employees for membership on the Nurse Professional Standards Board, the
Agency must seat at least four of the nominees as members of the Board.
Section 2 therefore is to the same effect as the proposal which the
Authority found nonnegotiable in VA Medical Center, East Orange, New
Jersey, 9 FLRA 998 (1982). In that case, the Authority found that
Professional Standards Boards in the Veterans Administration (1)
constitute a statutorily mandated decision-making process whereby
management's authority under section 7106 of the Statute to hire and
retain or remove employees is exercised through professional peer review
and (2) are an integral part of the process by which management decides
and acts pursuant to that authority. Because the proposal would require
Union nominees on such a Board, for the reasons stated in VA Medical
Center, East Orange, it directly interferes with management's rights
under section 7106(a)(2) and is outside the duty to bargain. See also
Hawaii Federal Employees Metal Trades Council, AFL-CIO and Pearl Harbor
Naval Shipyard, 23 FLRA No. 24 (1986). Compare Illinois Nurses
Association and Veterans Administration Medical Center, North Chicago,
Illinois, 27 FLRA No. 79 (1987) (Proposal 8), in which we found a
similar proposal negotiable because it provided only for the nomination
of employees to serve but did not require that any employee be selected
to serve on the committee.
Section 4
Because we have found that employee participation on the specified
committees is nonnegotiable, absent any revision of those sections in
accordance with our discussion above, we would not need to decide
whether Union designated representatives are entitled to be scheduled in
a duty status for regularly scheduled meetings of those committees, or
whether off-tour committee members shall be authorized compensatory time
for such meetings. However, should those sections be revised in
accordance with the guidance provided in our discussion, we would find
paragraph 1 of Section 4 to be negotiable to the extent that it provides
official time for employees to engage in labor-management related
activities during their regularly scheduled tour of duty. The Authority
has consistently held that official time for labor-management activities
during duty time is negotiable under section 7131(d). See, for example,
Military Entrance Processing Station, Los Angeles, California and
American Federation of Government Employees, Local 2866, AFL-CIO, 25
FLRA No. 57 (1987).
On the other hand, we would find that paragraph 2 of Section 4 is
nonnegotiable because it provides employees compensatory time for
labor-management activities performed outside their regularly scheduled
tour of duty. See National Treasury Employees Union, Chapter 65 and
Department of the Treasury, Internal Revenue Service, 25 FLRA No. 27
(1987), and the cases cited therein. As to the Agency's contentions
with respect to the payment of compensatory time under law, see our
discussion below under Proposal 11, Section 4.
V. Proposal 3
The FLRA Members disagree over the negotiability of this proposal.
The decision and order on Proposal 3, and Chairman Calhoun's dissent,
appear immediately following this decision.
VI. Proposals 4 and 5
Articles 21 and 22 - Grievance Definition and the Negotiated Grievance
Procedure
Proposals 4 and 5 would establish a grievance procedure. The test of
the proposals is set forth in Appendix B to this decision.
A. Positions of the Parties
The Agency contends that Proposals 4 and 5 are inconsistent with the
DM&S personnel system established under Title 38 and embodied in its
legislative regulations, for the reasons discussed in Section II of this
decision. The Agency also contends that the broad language of Article
21, Section 2.e and f should not be construed as excluding matters
specifically excluded by operation of law. The Union argues that the
proposed procedure is the same as that which has been in effect since
1981.
B. Analysis and Conclusion
Proposals 4 and 5 establish a negotiated grievance procedure.
Article 21, Section 2.f provides that the grievance procedure shall
exclude "(a)ny matter for which the final Agency decision is vested
beyond the authority of the Medical Center Director." We interpret
Section 2.f to exclude disciplinary matters from the coverage of the
grievance procedure. Final authority for these matters resides with the
VA Administrator. 38 U.S.C. Section 4110(d). The proposal is,
therefore, to the same effect as Proposal 1 in VA Medical Center, Ft.
Lyons. In that case, we found that the proposal, requiring the
establishment of a grievance and arbitration procedure which excluded
matters covered under Section 4110 of Title 38, was within the duty to
bargain. We thus find that Proposals 4 and 5 are within the duty to
bargain. See VA Medical Center, Ft. Lyons, note 4.
Moreover, we find, contrary to the Agency, that the proposals would
not include matters pertaining to the separation of probationary
employees within the scope of the grievance procedure. Final action in
such matters resides with Professional Standards Boards. 38 U.S.C.
Section 4106(b). See National Federation of Federal Employees, Local
1431 and Veterans Administration Medical Center, East Orange, New
Jersey, 9 FLRA 998, 1000-01 (1982).
VII. Proposal 6
Article 28 - Education and Training Opportunities
Section 3. All unit employees' requests for assistance from
the PIT (Post-graduate and Inservice Training Program)
Subcommittee will be forwarded through the Nursing Service chain
of command in a timely manner with appropriate endorsements or
returned to the employee with an explanation in accordance with
the current Center policy governing PIT Committee requests. The
Medical Center will ensure that authorized absence and funding for
educational activities are provided to applicants on an equitable
basis. (Underscored portion is at issue.)
Section 4. A committee consisting of the Associate Chief,
Nursing Service for Education, a designee from the Health Sciences
Library and a representative of the Union will be formed to
explore educational opportunities and tuition support alternatives
for RN's.
The committee will meet quarterly, or more often by mutual
agreement, to explore internal and external potential resources,
programs, grants, loans, and scholarships and ensure that
information is available to both management and employees through
the Health Sciences Library. (Underscored portion is at issue.)
A. Positions of the Parties
The Agency contends that the last sentence of Section 3 of the
proposal interferes with management's right to assign work under section
7106(a) of the Statute. It argues that the proposal seeks a guarantee
that would mandate equal rotation of work assignments. The Union
disagrees.
The Agency contends that the first sentence of Section 4 does not
involve conditions of employment as defined by the Statute. Further,
the Agency asserts that the proposal is nonnegotiable because it
interferes with management's right to assign work under section 7106(a)
of the Statute by mandating the formation of a joint labor-management
committee and that the Associate Chief, Nursing Service for Education be
a member of the committee. The Union argues that the proposal is
negotiable.
B. Analysis and Conclusions
Section 3
We find that Section 3 of the proposal is negotiable. The essence of
the proposal is to ensure the fairness and equity of educational
training opportunities. The proposal does not obligate management to
authorize leave and/or funding for educational activities, but rather
provides that management will "ensure" the equitable distribution of
educational opportunities only after management has decided to
"authorize absence and funding" for such opportunities. We find this
proposal is to the same effect as the proposal which the Authority found
to be within the duty to bargain in Association of Civilian Technicians
and State of Georgia National Guard, 2 FLRA 581 (1980). Accordingly,
Section 3 of Proposal 6 is within the duty to bargain. Compare Internal
Revenue Service and Brookhaven Service Center, 12 FLRA 19 (1983), in
which the Authority found nonnegotiable a proposal that would require
management to assign all types of work to all employees in an equal
amount.
Section 4
The disputed portion of Section 4 of the proposal seeks to designate
a particular management official (the Associate Chief, Nursing Service)
within the Agency who will serve on a joint labor-management committee
and, thus, it is nonnegotiable. The Authority has consistently held
that the designation of a particular management official to perform
specified tasks is inconsistent with an agency's right to assign work
under section 7106(a)(2)(B) of the Statute. American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, 14 FLRA 278 (1984), aff'd mem. sub nom. Local 32, American
Federation of Government Employees v. FLRA, 762 F.2d 138 (D.C. Cir.
1985). See also National Association of Government Employees, AFL-CIO,
Local R14-87 and Department of the Army and Air Force, Kansas Army
National Guard, 19 FLRA 381 (1985). For the reasons in Office of
Personnel Management, Section 4 of Proposal 6 is therefore not within
the duty to bargain. See also Joint Council of Unions, GPO and United
States Government Printing Office, 25 FLRA No. 86 (1987) (Proposal 4).
However, we note that in American Federation of Government Employees,
AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant
General Publications Center, St. Louis, Missouri, 14 FLRA 438 (1984),
the Authority found a proposal for a joint labor-management committee to
review training programs and establish training goals to be within the
duty to bargain. Although we find Section 4 nonnegotiable for the
reasons stated above, we recognize that the proposal would otherwise
create a joint labor-management committee to provide a forum for the
Union and employees to -xplore opportunities for education and tuition
support. The proposal does not require management to provide training
or tuition support, and does not seek to mandate the content of
training, but rather only would create a committee to serve as a forum
in which the Union would be able to air its views about and assist
management in finding available sources of training and tuition support.
Thus, if the proposal were revised to preserve management's right to
designate its representative on the committee, it would, like the
proposal in Army Adjutant General Publications Center, be negotiable.
See American Federation of Government Employees, AFL-CIO, Local 1858 and
U.S. 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 on other matters filed sub nom. U.S. Missile
Command, The U.S. Army Test, Measurement, and Diagnostic Equipment
Support Group, The U.S. Army Information Systems Command-Redstone
Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. July 17, 1987).
VIII. Proposal 7
Article 29 - Proficiency Reports and Promotions
Section 3. The proficiency rating supervisor will counsel the
marginal or unsatisfactory nurse approximately 90 days prior to
the due date of the proficiency report. At the time of the
orientation conducted in Nursing, the hospital will provide copies
of Nursing Service Memorandum covering the "Proficiency Rating
System" and the VA "Nursing Qualification Standards." These
memoranda will be discussed as part of the orientation procedure.
Upon assignment to their nursing unit, the immediate supervisor
will discuss with new employees the goals and expectations of the
Medical Center and the supervisor which may be utilized in the
proficiency rating process. (Underscored portion section is at
issue.)
Section 5. Nurses will be notified of all actions of the Nurse
Professional Standards Board concerning them within a reasonable
time not to exceed 30 days after the Board Meeting. A negative
Board recommendation will be discussed with the nurse by the Chief
Nurse or designee. If the nurse meets the educational experience,
and time-in-grade requirements for promotion, she will be
considered annually. (All of this section is at issue.)
A. Positions of the Parties
The Agency contends that Proposal 7 is inconsistent with the scheme
of Title 38, and with the Agency's legislative regulations, for the
reasons discussed in Section II of this decision. The Union disagrees.
B. Analysis and Conclusions
The first sentence of the first paragraph of Section 3 requires that
the "proficiency rating supervisor" counsel with employees who are
performing at the unsatisfactory or marginal level. The second
paragraph of Section 3, though not in dispute, requires that the
immediate supervisor discuss with new employees goals and expectations
of management which may be used in the proficiency rating process. The
second sentence of Section 5 requires that certain discussions with
nurses will be undertaken by the "Chief Nurse or designee." The first
sentence of the first paragraph of Section 3, the second paragraph of
Section 3, and the second sentence of Section 5 of the proposal are
therefore nonnegotiable. The Authority has consistently held that the
designation of a particular management official to perform specified
tasks is inconsistent with an agency's right to assign work under
section 7106(a)(2)(B) of the Statute. National Treasury Employees Union
and Department of the Treasury, 21 FLRA No. 123 (1986) (Provisions 2, 3,
4, and 5). For the reasons stated in National Treasury Employees Union,
the first sentence of the first paragraph of Section 3, the second
paragraph of Section 3, and the second sentence of Secion 5 of Proposal
7 are therefore not within the duty to bargain. See also Joint Council
of Unions, GPO and United States Government Printing Office, 25 FLRA No.
86 (1987) (Proposal 4). Moreover, as with Section 1 of Proposal 2 in
this case, if the first sentence of Section 3, the second paragraph of
Section 3, and the second sentence of Section 5 were revised to preserve
management's discretion to designate the management official who will
perform the specified tasks, they would be negotiable. See U.S. Army
Missile Command, 27 FLRA No. 14. We note, finally, that the first
sentence of Section 3 is distinguishable from Section 4 of Proposal 7 in
Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA
No. 79, which we found nonnegotiable. The proposal in that case
prescribed the range of numerical scores that must correspond to an
unsatisfactory or marginal rating.
The first sentence of Section 5 provides that nurses will be notified
of actions taken by the Nurse Professional Standards Board within 30
days. Similar proposals which have provided for notice to employees of
management action have been held to be negotiable as procedures under
section 7106(b)(2) of the Statute. See National Federation of Federal
Employees, Local 476 and Department of the Army, U.S. Army Electronics
Research and Development Command, Fort Monmouth, New Jersey, 26 FLRA No.
28 (1987) (finding negotiable a provision providing 60 days' advance
written notice of proposed performance based action); American
Federation of Government Employees, AFL-CIO, General Committee of AFGE
for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986)
(Proposal 5), application for enforcement filed sub nom. FLRA v. Social
Security Administration, No. 87-1118 (D.C. Cir. March 9, 1987) (notice
to employees of job elements and performance standards). For the
reasons stated in those and similar cases, we find that the first
sentence of Section 5 is a negotiable procedure and within the Agency's
duty to bargain under the Statute.
The last sentence of Section 5 provides that nurses will be
considered annually for promotion. This sentence is to the same effect
as the third sentence of Section 5 of Proposal 2 in Illinois Nurses'
Association and Veterans Administration Medical Center, Hines, Illinois,
28 FLRA No. 35 (1987), which we found to be negotiable. For the reasons
stated in that case, we find that the last sentence of Section 5 of
Proposal 7 in this case is within the duty to bargain.
IX. Proposals 8 and 9